Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 43
bonos mores, but sensible, moral and in accordance with modern medical practice.
The woman was, by making such an agreement, seeking to enforce a statutory
right to terminate her pregnancy if there were a serious risk that her child might
be seriously disabled. The Court accordingly held that if a doctor fails to inform
a pregnant patient that she is at greater risk than normal of having an abnormal
or disabled child, or incorrectly informs her that she is not at greater risk when
she reasonably requires such information in order to make an informed choice
whether to terminate such pregnancy, he is delictually liable to her for the damages
she has suffered by giving birth to an abnormal or disabled child.
It should be noted that, as Friedman was argued on exception, the rather
thorny issue of causation was not considered. 76 The issue is fraught with potential
complications, as evidenced by the experience of the English and Canadian
courts. The difficulty is that it is all too easy for the plaintiff to testify that he
or she would have adopted a different course of action had this option been
made known by the medical practitioner, but this is very often entirely divorced
from the reality of the situation. In the English case of Gregory v Pembrokeshire
Health Authority 77 Nicholls LJ was moved to comment that the court was asked to
interpret a ‘hypothetical response to hypothetical advice given at a hypothetical
consultation’. Ultimately, the issue is whether the courts must adopt an objective
or subjective standard of assessment. In the Canadian case of Arndt v Smith, 78 a
nine-judge bench of the Supreme Court held that the correct approach is to consider
what the reasonable patient in the claimant’s circumstances (interpreted in
a wide context) would have done.
4.12 Unlawfulness and the claim for ‘wrongful’ or ‘diminished’ life 79
The ‘wrongful’ or ‘diminished’ life action is a claim brought by a disabled child
seeking compensation for its impaired existence. Courts around the world have
generally shown a reluctance to endorse the action on the basis, so it is said, that
it is implicit in the claim that death is preferable to a sub-standard life. 80 There
is, however, criticism of this reasoning on the basis that ‘it is wrong to accept an
action for wrongful birth, and, at the same time, reject one for wrongful life,’ and
a preference for abandoning the principle of ‘wrongful life’ in favour of ‘diminished
life’. The comparison, so it is contended, should not be between existence
76
The issue was however considered in McDonald v Wroe [2006] 3 All SA 565 (C); Wroe v
McDonald [2011] JOL 29733 (C). See ch 5 below for causation.
77
[1989] 1 Med LR 81.
78
[1996] 7 Med LR 108.
79
The expression ‘wrongful life’ is open to criticism: see H v Foetal Assessment Centre [2014]
ZACC 34, and the expression ‘diminished life’ is more felicitous, as it is both more accurate
and more compassionate.
80
See, e g the USA: Bruggeman v Schimke 718 P 2d 635 (Kan, 1986); the United Kingdom: McKay
v Essex Area Health Authority [1982] 2 ALL ER 771, CA; Australia: Harriton v Stephens [2004]
NSWCA 93. See, contra: Mason et al op cit at 10.73–10.76, who suggest that ‘it is wrong to
accept an action for wrongful birth, and, at the same time, reject one for wrongful life’ and
they favour abandoning the principle of ‘wrongful life’ in favour of ‘diminished life’.