Dutton - Medical Malpractice in SA

72
Medical Malpractice in South African Law
presented to his doctor with an uncomfortable lump under his left arm. The
doctor diagnosed this as benign and reassured the patient to this effect. In truth,
the lump was a malignant tumour for which aggressive treatment was required.
This only commenced approximately 15 months after the initial consultation,
by which time the cancer had spread to the patient’s chest. It was accepted that
the examination by the general practitioner was negligent. However, the question
was whether the negligence had caused the eventual harm. The evidence
was that the plaintiff might have had a 42% chance of still being alive after 10
years if there had been no negligence, while this chance was now reduced to 25%
because of the negligence. Crucially, at no point did the plaintiff enjoy a more
than 50% chance of survival beyond 10 years. In the end, the House of Lords, by
a majority of three to two, rejected the claim in order to protect legal principles. 61
5.3.3 Conclusion
The Constitutional Court’s failure to deal with the issue of factual causation in
Lee v Minister of Correctional Services 62 has been criticised. 63 There is an urgent
need for judicial guidance on issues such as this. However, the causation issues
raised in medical malpractice cases are extraordinarily complex. Lord Nicholls in
Gregg v Scott 64 described the ‘loss of a chance’ issue, for instance, as one ‘which
has divided courts and commentators throughout the common law world’; in the
same case, Lord Hope of Craighead held: ‘This is an anxious and difficult case.
It is only after many months of deliberation that it has become clear that the
majority view is that the appeal must be dismissed’.
In dealing with these challenging issues, our legal system must strike a balance
between a proactive development of the law on the one hand, and a prudent
preference for a proper ventilation of the issues, on the other. The role of the
legislature as the major engine for law reform must also be borne in mind, 65 and
61
See generally in respect of the ‘loss of a chance doctrine’ in South African law: Carstens and
Pearmain, Foundational Principles of South African Medical Law (2007 LexisNexis South Africa)
at 833 ff and the detailed and thoughtful analysis by Van den Heever The Application of the
Doctrine of the Loss of a Chance in Medical Law (Pretoria University Law Press 2007). Hotson v
East Berkshire Health Authority [1987] 2 All ER 909 ; Chester v Afshar [2004] 3 WLR 927 .
62
2013 (2) SA 144 (CC).
63
L T C Harms ‘The puisne judge, chaos theory and the common law’ 2014 SALJ 3.
64
[2005] 4 All ER 812 HL.
65
In Carmichele v Minister of Safety & Security (Centre for Applied Legal Studies Intervening) 2001
(4) SA 938 (CC) at[36] the Court held: ‘In exercising their powers to develop the common
law, Judges should be mindful of the fact that the major engine for law reform should be the
Legislature and not the Judiciary. In this regard it is worth repeating the dictum of Iacobucci J
in E R v Salituro [1991] 3 SCR 654 , which was cited by Kentridge AJ in Du Plessis v De Klerk 1996
(3) SA 850 (CC) at [61]: “Judges can and should adapt the common law to reflect the changing
social, moral and economic fabric of the country. Judges should not be quick to perpetuate
rules whose social foundation has long since disappeared. Nonetheless there are significant
constraints on the power of the Judiciary to change the law. . . . In a constitutional democracy
such as ours it is the Legislature and not the courts which has the major responsibility for law
reform … The Judiciary should confine itself to those incremental changes which are necessary
to keep the common law in step with the dynamic and evolving fabric of our society.” ’