Dutton - Medical Malpractice in SA

20
Medical Malpractice in South African Law
to the plaintiff as a solatium for the injury to his or her feelings. 58 Today, damages
awarded seek to compensate the plaintiff by assuaging injured feelings (solatium
or ‘sentimental damages’; ‘genoegdoening’). 59 The plaintiff must, as a general
rule, allege and prove impairment of the relevant aspect of personality relied
upon, including an allegation of animus iniuriandi. 60 However, the averment need
not be express if ‘the alleged iniuria is obviously an infringement of personality,
or where the facts pleaded allow for an inference of animus iniuriandi.’ 61
In the field of medical law, the action has relatively effortlessly incorporated
contemporary notions of rights of personality. So remarkable has the adaptation
been that it has, with a good deal of justification, been claimed that it is in respect
of rights of personality that South Africa comes out best in comparison to other
Anglo-American jurisdictions in dealing with the dynamic challenges presented
in medical malpractice law. 62 Infused with Constitutional values, personality
interests which are now protected are physical integrity, mental integrity, bodily
freedom, reputation, privacy, feelings and identity. A wrongful reduction of the
quality of these personality interests or rights entitles the victim to non-patrimonial
damages. 63 Physical integrity and privacy are of particular relevance to
medical law, and are specifically dealt with below.
3.14 Physical integrity (corpus)
Two separate aspects of physical integrity are recognised in South African law:
the body itself and a person’s physical liberty. The former aspect is of obvious
importance to the law of medical malpractice.
The corpus (bodily and psychological integrity) is protected against a broad
range of infringements of a person’s physique or psyche. 64 The right to phys-
58
Melius de Villiers The Roman and Roman-Dutch Law of Injuries (Juta 1899) at 179–181; McKerron
The Law of Delict 7 ed (Juta 1971) at 9.
59
Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 18.
60
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849.
61
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849; see also Jackson v SA
National Institute for Crime Prevention and Rehabilitation of Offenders 1976 (3) SA 1 (A) at 13 F–H.
62
See, for example, the remark by Rhiannon Thomas (in the context of informed consent by
legally competent adults in non-emergency, invasive medical procedures): ‘Where to from
Castell v de Greeff? Lessons from recent developments in South Africa and abroad regarding
consent to treatment and the standard of disclosure’ 2007 SALJ 188 at 201: ‘In one respect
South Africa comes out best in a comparison with [Canada, Australia and England]. In
granting compensation (in the form of a solatium) by way of the actio iniuriarum for the
infringement of the right to bodily integrity, irrespective of whether plaintiff suffered physical
harm, South Africa provides direct protection to individual autonomy’. To this may
be added that it is particularly in dealing with non-therapeutic claims generally, such as
informed consent cases and the right to confidentiality, that the actio iniuriarum has come
into its own. In this respect it has been an invaluable jurisprudential tool, allowing the
law to respond with alacrity to the challenges of modern notions of patient autonomy and
Constitutional rights to life, dignity, privacy and bodily integrity which lie at the heart of our
evolving conception of medical law. See also Diggelmann, ‘How the right to privacy became
a human right’ Human Rights Law Review (2014) 14 (3) 441–458.
63
Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) at 253–254.
64
Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) at 253–254.