Dutton - Medical Malpractice in SA

14
Medical Malpractice in South African Law
which the respondent complained of was the appellant’s breach of a contractual
duty to perform specific professional work with due diligence. The Court held that
policy considerations did not require that delictual liability should be imposed for
the negligent breach of a contract of professional employment where there had
been no injury to person or damage to property, with the result that the breach
of the contractual duty was not in itself a wrongful act for purposes of Aquilian
liability and that the elements of delict had to be independently established. The
mere existence of a breach of contract did not therefore suffice to establish a claim
in delict. Thus South African law, largely for policy reasons, maintains a clear division
between the law of contract and the law of delict.
There are a number of practical implications for medical malpractice matters
flowing from the resultant jurisprudential relationship between contract and delict.
Firstly, the law of delict affords greater scope for relief than the law of contract: this
is because non-patrimonial loss, recoverable in delict, is not recoverable for breach
of contract. In Administrator, Natal v Edouard, 14 a contract was concluded between
a married couple and a medical practitioner for the performance of a sterilisation
operation. A year after the operation, the plaintiff’s wife gave birth to a child. The
plaintiff, in his capacity as administrator of the joint estate, brought an action
in damages for breach of contract. He claimed the cost of supporting and maintaining
the child, as well as general damages for discomfort, pain and suffering,
and the loss of amenities of life suffered by his wife. The Appellate Division upheld
the validity of the contract, and allowed the claim for damages to compensate
the plaintiff for the cost of maintenance and support of the child, but refused to
extend liability for breach of contract to include liability for non-patrimonial loss.
The claims for damages for discomfort, pain and suffering, and loss of amenities of
life experienced by the plaintiff’s wife during her pregnancy and the birth of the
child were accordingly rejected, and the principle that only patrimonial loss may
be claimed in contract was reaffirmed. 15 In respect of damages for infringement of
rights of personality, the Court held that the claim must be brought in terms of the
actio iniuriarum — a delictual remedy — and not in contract.
Secondly, as most medical malpractice cases involve physical harm, the
medical practitioner is usually under an independent delictual duty to prevent
harm to the patient by virtue of the very fact that professional medical services
are being provided, even should no contract have been concluded requiring the
defendant to perform such services. 16 South African law allows the same facts to
give rise to a claim for damages in delict as well as in contract, and allows the
plaintiff to choose which to pursue. The existence of the doctor–patient relationship
may originate in contract 17 and, where it does, a concursus actionum
may exist, entitling the plaintiff to elect whether to proceed by way of contract
14
1990 (3) SA 581 (A); See also Edouard v Administrator, Natal 1989 (2) SA 368 (D).
15
At 597–598.
16
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 499.
17
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 848–849.