1.8 the legal liability of doctors and hospitals for medical malpractice, f.f.w.van oosten

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S MJ VOL80 6 JUL1991

23

The legal liability of doctors and hospitals

for medical malpractice

F F W VAN OOSTEN

Summary

broad ovewiew of the fundamental principles relating to

leaal liability for medical malpractice is presented. The issues

e unded; discussed and- illustrated- are the nature and

consequences of the relationship

between

doctor/hospital

and ~atient , ffective consent as a reauisite of lawful medical

interventions, emergency treatment, medical negligence and

the vicarious liabili i of doctors/hospitals for the negligence

of others.

S Afr ed 1991; 0: 23 27.

Medicine and law have since time immemorial been strange

bedfellows. Famous ancient sources that bear testimony to the

interrelationship between medicine and law are, for instance,

Hammurabi's Code and the Hippocratic Oath, which contain

a number of legal and ethical provisions governing the legal

liability and behaviour expected of medical practitioners. Today

the conduct of doctors and practice of medicine are regulated

by a steadily increasing body of medicolegal principles of

diverse origin. Examples of these in the international sphere

are the Declarations of Geneva, Helsinki, Oslo and Tokyo and

the International Code of Medical Ethics, and in the local

sphere, the South African Medical and Dental Council's rules

of conduct as well as the South

African

Medical Research

Council's ethical considerations in medical research, to mention

but a few. I n addition, there is the South African legal system

itself, which governs a multitude of aspects relating to the

practice of medicine. A substantial number of these are dealt

with by various statutes (e.g. the Medical, Dental and Supple-

mentary Health S e ~ c e s ct No.

56

of 1974 and Nursing Act

No.

50

of 1978) and diverse scattered statutory provisions (e.g.

the Abortion and Sterilisation Act No.

2

of 1975 and the

Human Tissue Act No. 65 of 1983) that deal specifically with

medical matters. while the remainder fall within the ambit of

the common law (i.e. legal custom and judicial precedent).

Matters encompassed by medical law are, apart from those

discussed here, among others, abortion, sterilisation, euthanasia,

experimentation, insanity, intoxication, medical secrecy, organ

and tissue transplantation, artificial human procreation and

'sex-change' operations.

One of the many aspects of medical law that presents a

constant source of concern and anxiety to medical practitioners

is that of legal liability for medical malpractice. Medical

malpractice suits may not only have serious financial implica-

tions for the medical practitioner but may also adversely affect

his professional reputation. However, a fundamental notion of

and scrupulous adherence to a number of cardinal legal prin-

ciples relating to the doctor-patient relationship can go a long

way towards-avoiding medidicalmalpractice litigation and its

attendant inconvenience and embarrassment. This article

attempts to present a broad overview of the salient features of

Department of Criminai Law University of Pretoria

F F. W. VAN OOSTEN, B.A. LL.B. LL .D. LL.D.

Accepwd

4 Sepr

1990

medical malpractice liability in the South

African

context.

This is done with reference to the relationship between doctor/

hospital and patient, consent to medical interventions, emer-

gency treatment, medical negligence and vicarious liability.

The relationship between doctor/hospital

and patient

The legal relationship between doctor or hospital and patient

is primarily based on contract,' but may also be based on a

duty of care (e.g. where a seriously injured unconscious patient

is brought to a casualty ward for emergency treatment). In the

ordinary course of events, the parties enter into an express or

tacit agreement: the patient consults the doctor about his

complaint, and the doctor undertakes to diagnose the patient's

ailment and treat his condition in return for payment of his

professional fees. Moreover, since in terms of the fundamental

principles of freedom of contract both doctor and patient are

free agents, this means that medical practitioners have neither

a professional right (on the basis of their ethical duty to heal

and act in the patient's best interest) nor, generally speaking, a

legal duty to intervene medically. As regards the former, our

law proceeds from the cardinal premise that the patient has a

right to self-determination and, hence, a right to refuse medical

treatment that may save his life or preserve his health (see

Phillips De Klerk 1983(T) (unreported), in which it was held

that a Jehovah's Wimess has the right to refuse a life-saving

blood transfusion). As regards the latter, a legal duty to

administer treatment will, as an exception to the general rule,

be incumbent upon a medical practitioner in the following

categories of instances:

1. Where he assumes control over a potentially

dangerous situation andlor object. Thus a failure by

hospital staff to: (23 properly set the patient's ankle fracture

and mould the plaster of Paris cast; '(iz] initially check the

fracture dislocation by means of radiographs; and (iiz] subse-

quently correct the fracture position, resulted

in

the hospital

being held liable for darnages.2 Likewise, a failure by an

anaesthetist constantly to monitor the patient and to ensure

that the endotracheal tube remained correctly inserted, resulted

in the anaesthetist being convicted of culpable homicide.3

2.

Where he is under a statutory duty to act.-Failure by

a district surgeon to vaccinate patients who present themselves

for compulsory immunisation against a communicable disease

may render him civilly or 'ly liable.

3.

Where he is under a contractual duty to act. Failure

by a doctor to respond to an urgent call from one of his

regular patients, who is being treated by him for a serious

condition, which results in

harm

to the patient, may render

him civilly and/or 'ly liable.

4.

Where an emergency situation exists.

Failure by a

medical practitioner to render assistance in cases of a bomb

blast or traffic accident may render him civilly and/or

crimi-

nally liable.

It must be pointed out, however, that these categories of

cases in which legal liability for an omission may be incurred,

do not represent a closed list. The courts are at any given time

free, should these categories prove to be inadequate to cater

for new situations that may arise, to extend them in accordance



24 SAMJ

VOL8

6 JUL 99

with the prevailing juristic notions of society. I n such c ses the

test of legal liabilityw ll be whether the omission in question

was objectively unreasonable in terms of society's notion of

what might be expected of medical practitioners in the

circum

stances. Whether or not an omission to

act

will be considered

objectively unreasonable,

w ll

depend upon all the surrounding

circumstances of the case on hand, inclusive of factors such as

the doctor's actual knowledge of the patient's condition; the

seriousness of the patient's condition; 'the professional ability

of the doctor; the physical state of the doctor; the availability

of other doctors, nurses or paramedics; the interests of other

patients; and professional ethical considerations. However, it is

important to note th t

in

the absence of negligence on the

doctor's part, legal liability for omissionsis out of the question.

Effective consent to medical interventions

The doctor-patient relationship

being

primarily contractual by

nature and, hence, one which requires agreement

between

the

parties as to the proposed medical intervention, it follows that

the patient's consent is fundamental to lawful medical inter-

ventions. Indeed, barring exceptions, such as emergency

situations, stgtutory authority and, conceivably, authorisation

by the court, the general rule is that

in

the absence of effective

consent of either the patient himself or of someone acting on

his behalf, medical interventions are unlawfid and may result

in the doctor being held liable for assault or negligence or in

him being unable to recover his professional fee. This applies

irrespective of whether or not the intervention was administered

with,due care and skill and eventually proves to have been

beneficial to the patient. To allow doctors to administer medical

treatment against their patients' will on the basis of the

doctor-knows-best and in-the-patient's-best-interest criteria,

would be tantamount to practising medical paternalism at the

expense of patient autonomy. Like the contract between doctor

and patient, consent is usually implied by the patient's conduct,

but may be granted expressly either orally or in writing. The

requirements of effective consent in the medical context are

the following:

1. It must be recognised by law that is it must be

in

accordance with public policy.

Factual

consent by a philanderer

to undergo castration to save his faltering

marriage

or by a

kleptomaniac to have his hands amputated so as to render

future thefts by him virtually impossible, will not be legally

recognised.

2.

It must be given by someone who

is

legally capable

of consenting. Two classes of patients must be distinguished

here:

(a)

Adults

Adults, provided they are sane and sober, have

the capacity validly

to

consent to medical interventions. Should

the patient be in a state of unconsciousness, delirium, shock or

coma,

he

will be incapable of consenting n law. Although the

same applies to patients who are mentally ill, they are specifi-

cally catered for by the Mental Health Act (No. 18 of 1973,

section 60 (A)) which provides that the consent of the following

persons, in order of precedence, must be procured: a curator,

the patient's spouse, parent, major child, brother or sister or,

where the patient has been admitted to a mental institution,

the superintendent (provided the aforementioned persons

cannot after reasonable enquiry be found and the doctor has

reasonable grounds to believe that the intervention in question

is necessitated by the patient's life b e i i endangered or his

health seriously threatened) of that institution. In the case of

married couples, each spouse must consent to his or her own

diagnosis or treatment.

(b) Minors. Minors who have attained the age of 18 years are

competent, provided they are sane

and

sober, validly to consent

to medical operations and treatment without the stance of

their parents or gu rdi ns (in terms of the

Child

CareAct No.

74 of 1983, section 39(4)). Minors under the age of 18 years,

however, need the consent of their parents or guardians to

medical interventions. In the event of a conflict between the

child's father and mother, the father's views settle the matter

unless they go manifestly

against

the child's medical interests.

Where a minor under the age of

18

years

r fus s

to submit to

an indicated medical intervention consented to by his parents,

the doctor would be safe to rely upon the latters' consent.

Where the parents or

gu rdi ns

have delegated their power to

consent to medical interventions upon their children to, for

instance, relatives or teachers, the latters' consent suffices.

Moreover, the Child Care Act (sections 39(1) and

(2)

and

53(1) and (4); cf on 53(3)) vests the authority to consent to

indicated medical operations upon and treatment of children

in

persons other than the child's parents or guardians to cater

for contingencies:

3

the minister of health and welfare where

the parents or guardians refuse consent on, for example,

religious grounds, or where the parents or guardians cannot be

found or where the parent or guardian is mentally ill or

deceased; and (iz] the superintendent of a hospital, heads of

institutions, such as reform schools, schools of industries and

children's homes, and persons in whose custody the child

finds himself where the medical intervention is necessary to

preserve the child's life or to savehim from serious and lasting

physical injury or disability and

so

urgent that it cannot be

deferred for the purpose of consulting the person who is

legally competent to grant consent.

3. It

ust

be informedconsent Ordinarily, lawfid consent

is out of the question unless the consenting party knows and

appreciates what it is that he consents to. Since the patient is

usually a layman in medical matters, knowledge and apprecia-

tion on his part

can

only be effected by furnishing him with

appropriate information In this way, adequate information

becomes a requisite of knowledge and appreciation and,

therefore, also of lawful consent. In the absence of informa-

tion,

real

consent w ll

e

lacking. Inturn his means that the

informed-consent requisite casts upon the doctor as an expert

a corresponding legal duty to provide the patient with the

necessary information to establish knowledge and appreciation

and, hence, real consent on his part. The purpose and function

of the informed-consent requisite is: I] to ensure the patient's

right to self-determination and freedom of choice; and (ii) to

encourage rational decision-making by enabling the patient to

weigh and balance the benefits and disadvantages of the

proposed intervention in order to

come

to an enlightened

choice whether to undergo or refuse it. What this means, is

that the doctor must give the patient a general idea (there

being no obligation to disclose in detail all the complications

that may arise) in broad terms and in layman's language of the

nature, scope, administration, importance, consequences, risks,

dangers, benefits, disadvantages

nd

prognosis of, as well as

the alternatives toJ the proposed intervention. More particu-

larly, all serious and typical risks and dangers should

be

disclosed, but not unusual or remote risks and dangers, unless

perhaps they are serious or typical or where the patient makes

enquiries about them. Thus a duty to disclose the serious risk

of disfigurement, cosmetic changes, severe irradiation, necrosis

and amputation of a minor patient's legs and hands was held

to have been incumbent upon a doctor who had administered

radical

radiotherapy for Kaposi's haemangiosarcoma without

informing the patient's mother of these dangem4 On the other

hand, a duty to disclose the remote risk of becoming sterile

and of receiving bums, which caused the patient a great deal

of pain and discomfort, was held not to have been incumbent

upon a doctor who had administered radiotherapy to remedy

the patient's fibrosis of the uterus.5 Whether disclosure of the

diagnosis is obligatory, is a moot point, but it is conceivable

that diagnosis disclosure is imperative where:

13

it may affect



epatient's decision whether or not to submit to the proposed

2. Necessitg

Like unauthorised administration, necessity

intervention;

n]

it

an express Or implied term of the

as a defence in

th

medical context also connotes lawful

contractbetween doctor and patient; and

(iiz]

it is essential for

medical interventions in emergency situations, but

unlike

therapy.

n

extended duty of disclosure is commonly recog- unauthorised administration it does not require that

the

patient

nised where the patient

asks

questions, in which case there is a

duty incumbent upon

th

doctor to respond both fully and

truthfully to the patient's enquiries. On the other hand, no

duty of disclosurewould appear to exist where:

9

he patient

is

already in possession of

the

requisite information: (iz) the

patient expressly or irnpliedly waives his right to information;

ii] the defence of a

so-called

'therapeutic privilege' or 'contra-

indication', in terms of which

the

harm caused by disclosure

would

be

greater than

the

harm caused by non-dis osure (e.g.

in terminal cancer or emphysema

cases

but only

if

a real

conflict exists between the duty to inform

and

the duty to

heal ,

is applicable; and h)isclosure

is,

in the

circumstances,

physically impossible (e.g. where a minor patient is brought to

hospital and left

there

for diagnosis and treatment by his

parents or a relative and thk latter leave for home where they

m o t e contacted).

4. It must

be

comprehensive, that is extend to the entire

transaction, inclusive of its consequences.

5.

It must

be

clear and unequivocal

6. It must be fr and voluntary,

that is not induced by

fear, force or fraud.

A genuine but mistaken belief on the doctor's part that

lawful consent to a medical intervention

has

been granted w ll

not exclude the wrongfulness of his conduct, but may exclude

the requisite intention for assault, and a mistaken but reasonable

belief to the same effect may exclude negligence on his part.

mergency treatment

Medical interventions in emergency situations may be justifled

by one of two defences:

l. Unauthorised administration. Where, due to uncon-

sciousness, delirium, shock or coma arising from indulgence or

accident, it is impossible to obtain the patient's consent to a

medical intervention, which is urgently necessary to save his

life or to preserve

his

health, the defence of unauthorised

administration may avail the doctor who performs the inter-

vention. Like the defence of consent, unauthorised administra-

tion renders the intervention in question lawful, provided the

following requirements are met:

(a)

There must be emergency which necessitates the inter-

vention,

that is there must be an immediate threat to the

patient's life or health that renders the delay of the intervention

until such time as the patient will

be

in a position to consent

immssible.

(b)

Th e patien t musr be incapab le of consenting to the inrer-

vention.

Where the patient is capable of consenting, his consent

must be procured, irrespective of the danger to his life or

health. The fact that a mere imminent threat to the patient's

life or health provides no justification in terms of unauthorised

administration for emergency interventions where consent is

obtainable,

is

amply borne out by the patient's right to refuse

life-saving or health-preserving treatment. An emergency in

unauthorised-admin+tration

cases therefore not only relates to

the patient's life or health, but also to the impossibility of

procuring his consent.

(c)

The intervention musr not be against the patient s wil l.

Since unauthorised administration implies that the patient

would have consented to the intervention in question had he

been in a position to do so, i t follows that medical inter-

ventions against the patient's will cannot be justified by

unauthorised administration.

(d)

The

intervention must

be

intended to save the patient s

life

or to protect his health.

was incapable of

consenting

or that the intervention m k t not

be against his

w ll

or that the intervention must be in his best

interest. Necessity as a defence w ll therefore be relevant

where the patient was capable of consenting or where

the

intervention was against

his

w ll or where the intervention was

performed in the community's best interest. Thus he inocula-

tion of healthy persons against their will in order to prevent a

dangerous and infectious diseasefrom spreading

may

be justi-

fied in necessity. Likewise, an emergency blood transfusion on

the unconscious victim of a bank robbery, who subsequently

turns out to be a Jehovah's Wimess, may be justified in

necessity.

An

emergency deviation from or extension of

the

operation

agreed upon (where the patient's consent is sufficiently wide

to cover the extension or deviation, it goes without saying that

the extension or deviation is justified by consent), to save the

patient's life or to preserve his health while

he

is under an

aesthetic on the operating table,

may

be justified by necessity

or unauthorised administration, depending upon whether or

not the deviation or extension eventually proves to have been

against

his

will.

genuine belief that

an

emergency situation existed may,

again, excuse the doctor from liability for assault, while a

reasonable belief to the same effect may excuse

him

from

liability for negligence.

Medical negligence

1

Factual situations.The fact that the patient's consent has

been obtained or a situation of emergency exists does not,

however, rule out civil ancUor

criminal

liability for the medical

intervention performed by the doctor. If the diagnosis or

treatment is performed negligently and causes the patient

physical or mental harm or his death, the negligent doctormay

be

held liable (civilly for

damages

and criminally for culpable

homicide as the only relevant crime for which negligence

suffices; where the doctor has the intention to kill, as in the

case of euthanasiaY6 e may be convicted of murder) on

account of negligence. Negligence in the medical context

refers to a multitude of situations, among others the per-

formance of an

illegal

operation, the

use

of defective medical

instruments or equipment, a wrongful diagnosis,

a

wrongful

blood transfusion, incorrect or incompetent technique or pro-

cedure, incorrect or incompetent administration of anaesthesia,

the administration of an overdose of medicine or drugs, leaving

behind medical instruments or equipment in the patient's

body, insdEcient after-care, and excessive radiotherapy, to

mention but a few.

2 The test of negligence. In any given context, negligence

means: i ) that the defendant or accused failed to foresee and

guard against the possibility of harm to the plaintiff or victim;

and (iz? that the reasonable

man

in his position would have

foreseen that possibility of harm and would have guarded

against it. Fundamentally the test is an objective one in

so

far

as the hypothetical or fictitious 'reasonable man sets the

standard, but it also comprises a subjective element inasmuch

as it requires, in addition, that the reasonable man be placed in

the same position as the defendant or accused found himself at

the time. In turn, the reasonable man is commonly defined not

as the perfect

man

but as the man of average intelligence,

knowledge, competence, care, skill and prudence.

3. The reasonable doctor. One of the well-recognised

exceptions to the basic objective test for negligence is the case

where a person professes expertise in a particular field. In



such instances

the

standard of negligence is r ised to that of

the

reasonableexpert Since the medicalpractitioner is profes-

sionally qualified, thismeans that he is judged in accordance

with the reasonable-expert criterion, the test

being

the

reasonable doctor in the position of the individual doctor. n

this regard, however, it

has

repeatedly been emphasised

that

what

is

required

of

the

medical

practitioner

is

not the highest

possible degree of professional care and skill, but reasonable

care nd skill. Consequently, the standard is not based on

what can be expectedof the exceptionally able medical practi-

tioner, but simply on what can be expeaed

he

average

medical practitioner,

bear

in mind that a Ilredical practi-

tioner is a human being and not a machine

4. General practitioner

or

spedalkt. In conformity with

the

reasonableexpert standard, the test of negligence clearly

distinguishes between the standard of

care

and skill required

of specialists

as

opposed to general practitioners.

If

the doctor

is a general practitioner, the test is the reasonable general

practitioner. If the doctor is a specialist, the test is the

reasonable specialist in terms of the branch of

the

profession

to which he belongs. Thus,

if

the specialist is a heart surgeon

or a ne~rologist,~theest will be the reasonable heart surgeon

or neurologist, as the

c se

may be. The only exception to the

rule is where a medical practitioner professes to

be

or holds

himself up a specialist in a particular sphere, in which event

he

will

be bound by his representation and judged accord'iy.

Closely allied to this exception is the rule that where a medical

practitioner, who does not hold himself up as a specialist in a

particular sphere, engages in an undertaking that requires a

certain degree of experience, knowledge,

skill

or training, well

knowing that he lacks that degree of experience, knowledge,

skill or training he so-called

impen ria

d p e

iz hmer tur

rule.

5. Locality of practice. There are conflicting opinions7on

the question whether the locality where the doctor practises

should

be

afforded

a

role in determining whether or not he

was negligent. On the one hand, there is the view

that

the

same skill and care cannot be expected of a doctor in a country

town as of a doctor in a large centre. On the other hand, there

is the view that the fact that several incompetent or careless

practitioners happen to settle at the same place, cannot affect

the standard of diligence and skill that local patients have a

right to expect.

Taking

into consideration the uniformity,

generally speaking, of medical training in South Africa the

latter opinion seems preferable. This must, however, not be

taken to

mean

that the place where the medical inremention is

carried out is completely irrelevant in determining negligence.

Since nesiigence is dependent upon all the surrounding

cir

cumstances of the case on hand, the facilities and personnel at

the hospital or clinic where

an

operation is carried out

will,

in

conjunction with

the

practice of the profession,

be

relevant

factors in determining whether or not the doctor concerned

w s negligent.

6. Contributory negligence. The fact that the patient also

contributed to the

harm

that

has

befallen

him

affords the

doctor who is guilty of negligence no defence. Contributory

negligence can at best lead to an apportionment of damages or

mitigation of sentence. Likewise, whether the degree of negli-

gence established on the doctor's part is slight or gross,

makes

no difference to his civil andlor

crimin l

iability, but may

iduence the quantum of d m ges awarded War severity of

the punishment imposed.

7.

Onus of proof. The onus of establishing negligence on

the doctor's part lies with the patient in a civil

case

and the

State in a criminal case In a civil case negligence must be

established on a balance of probabilities, whereas in a

criminal

case negIigence must be proved beyond reasonable doubt. In

this regard, it must be noted that the patient or State cannot

rely upon the

case

speaking for itself he so-called res ips

loqdtur rule n dischargiog hirnseWitself of W i t s burden-

of proof. The

fan

hat he case speaks for itself may amtribute

to

establishing neg we,

but does not, as such constitute

proof of

negligence hus

negligence

w i l l

not automatically be

taken to have

been

established o n a it is proven that a doctor

injected an allergic patient with

penicillin

or that the doctor

l ft

a pair

of

forceps

in

the

patient's body.

t

is

not

wholly

surprising that this situation

has

met

with

severe critidsmon

the basis that where the case speaks

for

itself, thereought to

be a pmumption of

negligence n

favour of the patient, which

may th n be rebutsed by the doctor. At

present

the patient as

a layman s in the invidious position that he is saddled with

the full

burden of establishing medical negligence and come-

qm tl y, with

taking

on experts in their own f ~ l d . variety of

solutionshasbeen affered and devised

to

remedy this

imbalance

to ensure that justice is done to both doctor and patient, but as

yet some of these have not been put to the test, while those

that have been implemented have, in the

main,

not lived up to

expectations. To place the onus of disproving negligence with

the doctor also does not provide the answer to the problem,

since

that

in

turn

would put

him

at a disadvantage. Hence, the

patient's position in

this

respea remains essentially an unequal

and unsatisfactory one.

Vicarious li bility

1. Doctors. Unless they have

exercised

a negligent choice by

knowingly selecting an incompetent and inexperienced anaes-

thetist, radiologist or nurse, medical practitioners cannot incur

legal

liability for the negligent conduct of such

anaesthetist

radiologist or nurse

acting

under his direction and supervision.

The reason for this is that anaesthetists, radiologists and

nurses perform their services as independent contractors and

not

as

servants of the medical practitioner vncerned. The

patient or State w ll therefore have to t ke action against the

negligent anaesthetist, radiologist or nurse concerned.

2. Hospitals. Until recently,8 a similar view has been taken

in cases of hospital liability for negligent conduct on the part

of its professional personnel, which falls within the scope of

their employment or the exercise of their duties, although

there was no unanimity on the point. The majority view used

to be that since doctors and nurses in the service of a hospital

are not its employees when it comes to the performance of

their professional duties, the hospital rovided it has

exercised reasonable care in assuring itself of their professional

competence mnnot in ur

legal

liability for the

wrongful

conduct of its doctors or nurses.

Since,

on the other hand,

hospital personnel are under the control of

the

hospital in

respect of their administrative duties, it

can

incur egal liability

for their

wrongful

exercise of administrative duties. This view

has

recently been superseded by the erstwhile minority view

that hospitalscan incur legal liability for the exercise

by doctors and nurses of their professional duties. Since

hospitals are ordinarily in a better position to compensate

patients for the harm they suffer asa ksult of the negligence

of their professional personnel, this means that the patient is

not simply left without a remedy where the doctor or nume is

fm cially incapable of footing the bill.

It

hardly needs any

mention that there is nothing that prevents the patient from

seeking his redress against the doctor or nurse concerned

instead of against the hospital, but at least he now has a

choice.

3. Hospital superintendents. hospital superintendent

will only incur legal liabiity for the medical malpracticeofhis

professional personnel

as

a CO-perpetratorwhere he personafly

participated in the wrongful conduct complained of or

un-

reasonably failed to prevent

the

harm in question.



Conclusion

It is perhaps fitting to conclude with reference to the leading

c se

of

Richter v

Estate H ~ m i n a n n . ~he facts were that

the

patient, a young married woman, had fallen on the sharp edge

of a chair as a result of which her coccyx was injured. The

doctor, an experienced neurosurgeon, gave her an injection to

effe t

a phenol block of the lower

sacral

nerves. Although the

injection achieved the desired result of relieving the coccygeal

pain, it had most unfortunate consequences for the patient,

namely loss of control of the bladder and bowel, loss of

sexual

feeling and loss of power in the right leg and foot. In

an

action

for damages based on negligence on

the

doctor s

part

for

failing to inform the patient of the dangers connected with a

phenol block, the

court

held that the evidence disclosed that

the likelihood of complications

occurring

was very unusual

and extremely uncommon. Even if the patient had indicated

that she would have refused to undergo the treatment had she

been warned of the incidence of

risk,

the possibility of such

complications was too remote to establish negligence on the

doaor s part for his failure to warn her of such risks. The

judge in the

case

made the following remarks:

A

doctor whose

advice is sought about an operation to which

certain

dangers

are attached nd there are dangers attached to most opera-

tions s in a dilemma. If he fails to disclose

the

risks he may

render himself liable to an action for assault, whereas

if

he

discloses them he might well frighten the patient into not

having the operation when the doctor knows full well that it

would be in the patient s interest to have it. It may well

be

that in certain circumstances a doctor is negligent if he fails to

warn a patient, and, if that is so, it

seems

o me in principle

that his conduct should

be

tested by the standard of the

reasonable doctor faced with the particular problem. In

reaching a conclusion a Court should

be

guided by medical

opinion

as

to what a reasonable doctor, having regard to

l l

the

circumstances of the pamcular case should or should not do.

-TheCourt must, of co u ~~ e ,

ake

up its own mind, but it will

be assisted

in

doing so by medical evidence.

REFERENCES

1.

Correira

o aarind 1986(4) SA 60 Z) 63.

2. are v Ministerof Health 1981(4) SA 472(Z).

3. S Kramer lW (1 ) SA 887 W).

4. Esterhuizen

o

AdmuusnetorTransvaal 1957(3) SA 7 1 0 0 .

5

Lymbery J l925

AD 236.

6. S o Hanmann 1975(3) SA 532(C).

7. Innes CJv Wessels JA in Van Wyk Lewis 1924AD 438.

8. Mtetwa v Administrator

Natal

1989(3) SAm .

9. 197q3) SA 226(C).

BIBLIOGRAPHY

Gordon I, Turner

R,

Frice

TW

M e d i d

J pn me. 3rd

ed.

Edinburgh:

Livingstone, 1953.

McQuoid Mason DJ, Strauss SA. Medicine,

dentisny,

pharmacy, veterinary

practice and other health professions:In: Jouben WA, ed

The

Lam of

South

Africn

VoL 17.

Duxban:

B~mecworrhs, 983.

SchwL TG, Loubser JD, Olivier JA The Forensi'c ABC in Medical Pracrice.

Pretoria: HAUM, 1988.

South African Medical

Research Council. Erhicul

Carride+arionr

in Me

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Revised e d Parow: SAMRC, 1987.

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DOC~OT,arimr

un he

L m . 2nd ed. Pretoria: JL van Schaik,

1984.

Strauss SA, Srrydom MJ.

Die Suid Afriknmrre GeneesRMdige Reg. Pretoria: L

van

Schaik

1967.

Van Oosren

FFW.

Professional medical negligence

in

southernAfrica.

Med

Law

1986;

:

17-28.

Van Oosren FFW. The doctrine of informed consent m medical law. LL.D.

thesis,

University of SouthAfri? 1989.

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?:

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1.8 the legal liability of doctors and hospitals for medical malpractice, f.f.w.van oosten

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