Dutton - Medical Malpractice in SA

52
Medical Malpractice in South African Law
recent years, become something of a term of art in the law of medical malpractice.
This reflects a fundamental shift in the doctor–patient relationship which
has occurred in the last few decades. Previously, doctors were able to rely more
extensively on their own judgment about their patient’s needs for information
and consultation. However, during the course of the twentieth century, the recognition
of patients’ rights of autonomy became more widespread, which resulted
in increased emphasis being placed on the patient’s right to decide whether or
not a particular medical intervention should occur. The classic expression of this
principle is that of Cardozo, J, in the case of Schloendorff v Society of New York
Hospital 137 in which he said, ‘every human being of adult years and sound mind
has a right to determine what shall be done with his own body; and a surgeon
who performs an operation without the patient’s consent commits an assault.’ 138
This shift has been described as one which has moved away from the ‘professional
standards of disclosure approach’ to a ‘patient-based’ approach.
4.21 Informed consent and the doctor–patient relationship
As a general rule, consent is an essential prerequisite for any medical treatment,
and the Roman maxim volenti non fit iniuria 139 provides the jurisprudential basis
for medical interventions being legally justified in the majority of cases. 140 Thus,
the concept of ‘consent’ is no mere bureaucratic or procedural rubber-stamping
of a legal formality. The concept of consent goes to the heart of the doctor–
patient relationship. The physician is not the omniscient curator of the patient’s
best interests, with a paternalistic power to decide on his or her patients’ behalf
what is in their best interests. The physician, rather, stands more accurately in the
position of being the servant, not of life in the abstract, but of the life plans of the
patient. 141 The essence of the relationship is the notion of respect for the patient’s
autonomy, and the law’s protection of individuals’ rights to bodily integrity,
privacy and dignity. Giesen 142 states:
‘In other words, consent envisages a different type of patient-physician relationship
than that posited by traditional medical ethics of Doctor Knows Best — one that
involves social relationships between lay people and health-care professionals built
upon complex layers of mutual loyalty, fidelity, respect and support. There is no room
here for the view that disclosure of relevant information to patients concerning their
to. However, in the medical context the requirements for lawful consent relating to knowledge,
appreciation and acquiescence on the part of the patient assume particular significance
because the patient is usually a lay person in medical matters. Knowledge and appreciation
can therefore only be present on the providing of sufficient information, which therefore
becomes a pre-requisite for consent: it is the emphasis on sufficient knowledge and appreciation
that gives rise to the expression ‘informed consent’.
137
211 N.Y. 125, 105 N.E. 92 (1914).
138
But see, contra, the remarks by Marais JA in Broude v McIntosh 1998 (3) SA 60 (SCA).
139
Claassen Dictionary of Legal Words and Phrases 2 ed vol 4 (LexisNexis) under ‘To one consenting
no harm is done’.
140
The other justifications, dealt with below, are encountered far less frequently in practice.
141
Giesen International Medical Malpractice Law (Martinus Nijhoff 1988) at 488.
142
Giesen, supra, at 487.