Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
and non-existence, but rather with the actual suffering that has been caused. In
support of this view, the minority judgment of Kirby J in the Australian case of
Harriton v Stephens 81 stands as something of a rallying point. The South African
courts’ attitude to this cause of action is at present undergoing something of a
judicial audit, with the conventional approach previously adopted by our courts
being subjected to trenchant jurisprudential analysis.
In Stewart v Botha, 82 a child was born with severe congenital defects. The
child’s father instituted an action on behalf of the child for damages against
the general medical practitioner and the specialist obstetrician and gynaecologist
whom the mother consulted during her pregnancy. The basis of the claim
was that the defendants were, while treating the mother during her pregnancy,
under a duty to detect any abnormalities in the foetus and to advise the mother
thereof, which they negligently failed to do. But for this negligent failure, so the
plaintiff claimed, the woman would have undergone a termination of pregnancy
and consequently the child would not have been born and would not have suffered
from the severe physical handicaps that he did. The defendants disputed
the unlawfulness element of the appellant’s claim. The Supreme Court of Appeal
recognised the parents’ claim for damages flowing from the child’s condition, but
drew a distinction between the parents’ claim and that of the child for the same
damages. 83 The Court held that conduct which caused loss to another was actionable
only if, in addition to being negligent, it was wrongful, i e if public-policy
considerations demanded that, in the particular circumstances, the plaintiff had
to be compensated for his or her loss. 84 It reasoned that, if the child’s claim were
to succeed, the Court would have to find that he would have been better off had
he not been born. 85 The Court found that the question whether the particular
child should have been born at all was a question that went so deeply to the heart
of what it was to be human that it should not even be asked of the law. For that
reason, the Court would not recognise such an action. 86
81
Supra footnote 80.
82
2008 (6) SA 310 (SCA).
83
Claims arising from a similar context, although distinctly different, have received legal recognition
on accepted principles and norms, in our courts and many international jurisdictions.
In Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) the action of
a child to recover damages for an injury done to it whilst in utero was recognised. The claim
by parents against a hospital that agreed and failed to perform a surgical tubal ligation in
order to render the mother sterile, for the cost of maintaining and supporting a child that
was born afterwards, was granted in Administrator, Natal v Edouard 1990 (3) SA 581 (A). The
claim of a mother against a medical practitioner for not having detected and informed her
of the congenital defects in her foetus which she would have aborted had she known about
the defects was recognised in Friedman v Glicksman 1996 (1) SA 1134 (W) and survived the
exception taken against it. In the same case a claim of the child, the same as is presently
under consideration, received the attention of a South African court for the first time and was
refused on public policy considerations.
84
Stewart v Botha 2008 (6) SA 310 (SCA) at paras [5]–[7].
85
Paragraphs [10]–[11] at 315G–316B.
86
Paragraph [28] at 319F.