Dutton - Medical Malpractice in SA

42
Medical Malpractice in South African Law
in deciding the issue include: whether the extent of the potential loss incurred
is finite and identifiable with a particular claimant or claimants; whether the
misstatement was made in a business or professional context or merely casually
or in a social context; and whether the loss suffered was a reasonably foreseeable
consequence of the misstatement. A further factor which is of obvious relevance
for present purposes is whether the misstatement relates to a field of knowledge
in which the defendant possesses or professes skill. The existence of these factors
increases the likelihood of the courts attaching liability to a negligent misstatement
made by a medical practitioner to a patient. Once established, the legal
duty is, however, not absolute. Liability for a misstatement does not automatically
follow, and all the circumstances of the case must be considered. The existence
of such a legal duty simply requires the defendant to take reasonable care to
ensure the correctness of his or her statement before making it. 74
4.10 Specific principles regulating unlawfulness relevant to medical
malpractice
A number of principles have been developed by our courts which have particular
relevance to medical malpractice cases. These may, for the sake of convenience,
be dealt with under the following headings, which are specific formulations of
the underlying general principles.
4.11 Unlawfulness and the claim for ‘wrongful birth’
The manner in which the dividing line between causes of action which are recognised
by the courts on policy grounds and those which are not is illustrated
in the cases relating to ‘wrongful birth’ and ‘wrongful’ or ‘diminished’ life. The
former cause of action is dealt with in this paragraph; the latter in paragraph 4.12
below.
Friedman v Glicksman 75 dealt with a so-called ‘wrongful birth’ claim, which survived
an exception that no cause of action was disclosed. The facts of this case
were that an agreement was concluded between a pregnant woman and a doctor
to the effect that he would advise the woman whether there was a greater risk than
normal that she might have a potentially abnormal or disabled child. The reason
for the woman seeking the agreement was so that she might make an informed
decision on whether or not to terminate the pregnancy. The issue in this case
was whether such an agreement was unlawful and contra bonos mores. The Court
found that the agreement did not offend against public policy and was not contra
possesses or professes skill; whether the misstatement was made in a business or professional
context or merely casually or in a social context, whether the loss suffered was a reasonably
foreseeable consequence of the misstatement; and so on.’
74
Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) at [27]. The reasons for such a duty
arising are set out at [29].
75
1996 (1) SA 1134 (W). A ‘wrongful life’ claim, simultaneously brought on behalf of the child,
received the attention of a South African court for the first time and was refused on the basis
that the claim for ‘wrongful life’ was not valid in contract or in delict; see para 4.12 below.