Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
challenges. An understanding of the fundamental principles of the legal and
ethical framework against which these principles operate is essential, both for an
understanding of the express requirements of the law, and for the proper exercise
of judgment where this is called for. This book explores those foundational legal
principles — a firm grasp of those principles can then be applied by the medical
practitioner to a host of situations which arise in practice.
2.2 Summary of key principles
This section serves as an introduction and a summary of the foundational legal
principles. The various chapters in the book each deal with a particular aspect
of medical malpractice law. Together, these chapters make up a coherent body
of knowledge. Throughout the body of the text, key concepts are highlighted by
way of a dotted line in the margin. It is suggested that members of the medical
profession initially focus on the summaries in this chapter and the key concepts
contained in the highlighted text.
Extensive reference has been made to foundational medical malpractice
cases — a practical example is often worth pages of theory. The reader is advised
to identify the underlying principle which emerges. Every effort has been made
to set out the underlying principles in straightforward, coherent terms and to
avoid the use of jargon.
2.2.1 Chapter 3: Causes of action 8
For our purposes, the South African legal system can conveniently be divided
into two — civil proceedings and criminal proceedings. In civil proceedings, an
individual brings the claim. The claim could be against an individual practitioner,
against a hospital, or against a provincial health authority. In criminal
proceedings, on the other hand, the State brings the legal proceedings.
Civil proceedings are governed by the civil law, while criminal proceedings
are governed by the criminal law. ‘Civil wrongs’ regulate relationships between
individuals by allowing a person to claim relief in the form of damages against
another in civil proceedings. In malpractice claims, damages are usually in the
form of monetary relief.
The criminal law is not regularly used to prosecute medical practitioners as
the result of malpractice, although it has on occasion occurred. For that reason,
the criminal law is not dealt with in any great depth in this book. Suffice to say
that compliance with the general principles governing the civil law will almost
entirely protect the medical practitioner against criminal liability.
Under the civil law, there are two forms of civil wrongs that make up almost
the entire body of civil claims in medical malpractice cases: breach of contract
and delict. Most people have a fairly good general idea of what is meant by ‘contract’
and ‘breach of contract.’ But what is meant by a ‘delict’?
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See ch 2 below.