Dutton - Medical Malpractice in SA

Foreword
by Dr Herman Edeling
If women are from Venus and men from Mars, the planets from which lawyers
and doctors derive must be even further apart. Advocate Ian Dutton is to be
highly commended for his foundational work in building bridges. He has condensed
a large body of law and legal principles into a manageable book, providing
doctors also with some insight into how the law evolves and how lawyers think.
Having grown up in a scientific environment, doctors find it difficult to read
law and works written by lawyers. Apart from anything else, in order to follow
legal jargon it is necessary to frame it in a legal context, which of course doctors
do not have. In this book Adv. Dutton has gone to considerable lengths to present
the law and legal principles in ways that are more easily accessible to doctors. In
particular, chapter 2 and the highlighted passages within the book enable ease
of understanding
Chapter 1 eloquently introduces the complexities in the law and the methods
of its development. One is drawn to the conclusion that even the law does not
know what it will be tomorrow. How is a busy doctor to keep tabs on the legal
convictions of the community and the evolving findings of legal policy makers?
More pertinently, how is he or she to steer clear of litigation in such an unknowable
and unpredictable environment?
Having worked closely with lawyers and doctors for many years, and despite
having encountered bad doctors, bad attorneys, bad advocates and bad judges, I
am left with the firm conviction that both Medicine and Law are noble professions.
Both professions are based on ethical norms and both hold themselves to
a high standard. In my experience the majority of practitioners exhibit learning,
integrity and responsible dedication to service.
Medical ethics, and doctors themselves, expect of doctors to treat their
patients according to a high standard. In my experience the expectation of the
law is the same, but the demand of the law, to treat patients according to a reasonable
standard, is more lenient. The law does not punish doctors for not knowing
or understanding the complexities of the law. Nor does it punish doctors for
bad outcomes, or even for making mistakes. It punishes them when their professional
behaviour is considered to have descended into the realms of unjustifiable
assault, unreasonable neglect or error that, under the prevailing circumstances,
could and should have been prevented; and then only when such malpractice has
resulted in demonstrable permanent harm.
If this experience holds true, doctors should have nothing to fear of the law.
Reflecting on what the law expects and demands of doctors, lawyers and legal
policy makers should be mindful of the expectation of doctors that the law should
be just, and that at the very least the application of the law should be reasonable.
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