Dutton - Medical Malpractice in SA

8
Medical Malpractice in South African Law
Finally, the legal convictions of the community are not cast in stone, but shift
and change over time.
Unlawfulness must be distinguished from the concept of ‘fault’, which
assesses whether a person is to blame for the consequences of his or her conduct.
Even where conduct is blameworthy because there is the necessary intention or
negligence, legal liability will not result unless the conduct is regarded as being
unlawful. The concept fault is discussed in chapter 6 below.
Our law recognizes a number of defences which justify conduct which would
otherwise give rise to legal liability. Therefore, even where a person’s negligent or
intentional conduct causes harm to another, legal liability will not result where
a legally recognized defence exits. The most commonly encountered in medical
malpractice are informed consent, necessity, unauthorised administration, statutory
authority and the existence of a court order.
In respect of medical malpractice claims, an important principle is that it is
unlawful to infringe upon another person’s physical integrity, and this is so even
where the motive for such infringement is to heal. However, where a person provides
valid informed consent to the infringement of his or her physical integrity,
the conduct will not be unlawful. Consent therefore forms an important defence
to the otherwise unlawful conduct of the medical practitioner.
In medical law, for consent to be valid, the consenting party must have:
(i) had knowledge and been aware of the nature and extent of the harm or risk;
(ii) appreciated and understood the nature and extent of the harm or risk;
(iii) consented to the harm or assumed the risk, including all the consequences
thereof.
Consent in this form is known as ‘informed consent’.
It is not always necessary to obtain a patient’s informed consent. Other
defences, relevant to medical malpractice arise in emergency situations where
the patient’s consent cannot be obtained, where it is necessary in the interests of
society or where authorised by statute or court order.
2.2.3 Chapter 5: Causation 11
In order to be legally liable, a person’s conduct must have caused harm to another.
The law applies a two-stage approach to determine whether this has happened.
The first stage proceeds on the basis that the law will not hold a person
liable unless that person’s conduct in fact caused harm to another. The first stage
of the enquiry is known as factual causation. It is concerned with whether the
conduct in question actually caused the harm. The courts assess whether particular
conduct in fact caused harm by asking whether the harm would have
occurred but for the particular act or failure to act. However, the law will not hold
a person liable simply because his conduct caused harm to another. The law will
not allow the legal consequences of conduct to stretch into infinity.
11
See ch 5 below.