Dutton - Medical Malpractice in SA

12
Medical Malpractice in South African Law
in applying the definition to any given case, it is borne in mind that [the “cause of
action”] relates only to “material facts”, and if at the same time due regard be paid to
the distinction between the facta probanda and the facta probantia. This distinction is
of great importance and care must be taken in any given case to distinguish the facts
which must be proved in order to disclose a cause of action (the facta probanda) from
the facts which prove them (the facta probantia).’
The practical effect of these principles has been well summarised as follows: ‘The
material facts are therefore the essential legal elements of the particular cause of
action, charge or defence, stated in such a way that the legal elements are made
applicable to the facts of the case concerned.’ 6
3.3 Medical malpractice
‘Medical malpractice’ embraces professional medical misconduct, committed
either intentionally or negligently. 7 It includes the concept of ‘professional
medical negligence’, but goes further. It also includes intentional conduct which,
as we shall see, is a necessary element in respect of rights of personality, and plays
an increasingly important role in medical malpractice cases.
The substantive law governing medical malpractice must be seen within the
context of the South African legal system as a whole. Traditionally, since the
days of Justinian, the national law of a State has been divided into private and
public law; the former governing legal relationships between private citizens, and
the latter applying where the state is involved in the legal relationship. 8 Most
relevant to medical malpractice in the sphere of the private law are the fields of
contract and delict; while in the public law constitutional, administrative and
criminal law all play an important role.
3.4 The role of delict in medical malpractice claims
Generally speaking, the law of contract plays a more limited role than the law
of delict in the South African law of medical malpractice, 9 and claims founded
in the public law are uncommon — criminal proceedings, although theoretically
available, are rare, 10 as are claims founded in administrative or constitutional law.
6
Marnewick Litigation Skills for South African Lawyers 3 ed (LexisNexis 2012) at 85.
7
See ch 6 below.
8
Hosten et al Introduction to South African Law and Legal Theory 2 ed (LexisNexis 1995) 491.
A third sphere, formal law, embraces criminal and civil procedure and evidence. Although
somewhat simplified, this model serves the present purpose well.
9
The relative primacy of delict over contract is apparent in other jurisdictions. See e g C P
McGrath, ‘Medical Malpractice and Compensation in Global Perspective: Vienna 3–4
December 2010’ (2011) 1 PN 4–12, who report that in England, the United States and Canada
the dominance of tort in dealing with malpractice issues is apparent, that it is an exceptional
approach to base an action for malpractice on a contract and that this situation is most pronounced
in the context of public care.
10
But see e g: S v A 1971 (2) SA 293 (T); S v Hartmann 1975 (3) SA 532 (C); S v Kramer 1987
(1) SA 887 (W); S v Mkwetshana 1965 (2) SA 493 (N); S v Mokgethi 1990 (1) SA 32 (A); Ex
parte Minister van Justisie: in re S v Grotjohn 1970 (2) SA 355 (A); This is not universally so,
and in some jurisdictions criminal sanctions are far more widespread: Kazarian, ‘Criminal