Dutton - Medical Malpractice in SA

50
Medical Malpractice in South African Law
In Magware v Minister of Health NO, 125 for example, the plaintiff had sustained a fracture
of his right ankle. He attended the casualty department of a hospital, where a
plaster of Paris cast was improperly applied. The Court held that once the hospital
staff had undertaken treatment there was a special relationship between the staff
and the patient which gave rise to a duty to take positive steps to avoid harm. 126
DEFENCES EXCLUDING UNLAWFULNESS
4.15 Introduction 127
The medical practitioner’s duties towards his or her patient extend beyond a proficiency
in therapy and diagnosis. The practitioner may not treat or even touch the
patient without a valid ground of justification. 128 Medical intervention without
legal justification can give rise to civil liability, or even criminal sanction. A laudable
motive is insufficient: the medical practitioner may sincerely believe that it
is in the patient’s best interests that the treatment should occur; however, this
will not justify the invasion of the patient’s bodily integrity unless a legally recognised
ground for such intervention exists.
4.16 Grounds of justification for medical intervention
The grounds of justification for medical intervention are founded on the legal
convictions of the community, which have hardened into a number of distinct
categories. These categories are not a numerus clausus; however, a number of these
categories are regularly encountered in medical malpractice cases. The most
important are: informed consent, emergencies, necessity, negotiorum gestio and
statutory authority or court order.
4.17 Informed consent
Consent is only legally valid where it is freely given by a patient with the capacity
to consent, on the basis of adequate information as to the nature and consequences
125
1981 (4) SA 472 (Z).
126
See also, Dube v Administrator, Transvaal 1963 (4) SA 260 (W) at 266H; Blyth v van den Heever
1980 (1) SA 191 (A) at 220; Barnett v Chelsea and Kensington Hospital Management Committee
[1968] 1 All ER 1068.
127
The National Health Act, 61 of 2003; The National Patients’ Rights Charter; The Health
Professions Council of South Africa Guidelines; See, generally, Rompel v Botha 1953 (TPD)
unreported (referred to, inter alia in Castell v de Greef; Richter v Estate Hamman 1976 (3) SA 226
(C); Castell v de Greef 1993 (3) SA 501 (C); Castell v de Greef 1994 (4) SA 408 (C); Esterhuizen v
Administrator Transvaal 1957 (3) SA 710 (T); SA Medical and Dental Council v McLoughlin 1948
(2) SA 355 (A) at 366; Broude v McIntosh 1998 (3) SA 60 (SCA); Strauss Doctor, Patient and the
Law 3 ed.; Van Oosten The Doctrine of informed Consent in Medical Law (unpublished doctoral
thesis, Unisa 1989); Sidaway v Governors of Bethlehem Royal Hospital and Others [1985]
1 All ER 643 HL; Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Giesen
International Medical Malpractice Law (Martinus Nijhoff 1988); R Thomas ‘Where to from
Castell v de Greef? Lessons from recent developments in South Africa and abroad regarding
consent to treatment and the standard of disclosure’ 2007 SALJ 188.
128
Castell v de Greef 1994 (4) SA 408 (C) at 425; Van Oosten The Doctrine of informed Consent in
Medical Law (unpublished doctoral thesis, Unisa 1989) at 14–15.