Medical malpractice claims in excess of R5million have increased by 900%
since 2009 and on average, one in every five claims are in excess of R1million,
representing a 550% increase in the last decade.
The concept of informed consent
A few landmark claims
have topped the R25million mark. The Gauteng Health Department is facing
negligence claims amounting to R1.28-billion alone for the 2012/2013 financial
year. The bulk of medical malpractice
claims arise from high risk specialties including orthopaedics, neurology and
As discussed by Legal Risk Advisor, Samantha Baleson of Aon South Africa which offers
specialist medical malpractice insurance cover, “Medical malpractice
claims in South Africa are soaring, as South Africa becomes an increasingly litigious society. Awareness
of rights is growing in addition to a growing number of legal professionals who
are marketing medical malpractice litigation services.”
Read: Human rights and TB
Staying up to date and informed on the various doctrines and legal
concepts that are related to human rights is crucial in the health care
sector. One such aspect that is often overlooked by medical professionals
is the concept of informed consent. It is a process of communication
between a patient and physician or doctor that results in the patient’s
agreement and authorisation to undergo a specific medical intervention.
Informed consent emphasises a patient’s right to be fully informed of any treatment
or procedure offered. Only once provided with all the necessary information
regarding their condition, the possible treatments, the risks involved in those
treatments and the possible consequences and costs, can a patient make an
informed decision as to whether or not they wish to undergo the prescribed
'Volenti non fit injuria'
“This means that a treating medical practitioner carries an additional legal
responsibility to ensure that the patient has been thoroughly informed and
fully understands the information provided and the associated risks. We’re
increasingly seeing medical malpractice claims premised on the basis that
patients believe their rights in terms of ‘informed consent’ were
transgressed,” she adds.
Read: The rights of participating patients
Under normal circumstances, a person who inflicts intentional physical
harm on another person can be charged with assault and, therefore, sued and
held liable in civil law for damages. However, when a patient consults
with a doctor and consents to the performing of a medical procedure, the doctor
could use the defence of volenti non fit injuria. Directly translated
from Latin, this means ‘to him who consents, no harm is done’.
“This is premised on the basis that one cannot be held liable for
injuries inflicted on an individual who has given consent to the action that
gave rise to the injury, barring negligence on the part of the doctor. This
defence is based on the concept that the effected party consents to a specific
act with full knowledge that such an act could be potentially harmful and carries
certain risks,” explains Samantha.
In order for volenti non fit injuria to be utilised by a medical
professional, five elements must be complied with:
- The patient must have the legal capacity to consent
- The patient must have an appreciation of the risk of
- Consent must have been given freely and voluntarily.
- Consent cannot be given for illegal purposes (such as
- Consent must not have been revoked.
“Although a patient has the right to informed consent, in exceptional
circumstances, a medical practitioner may decide to treat a patient's condition
which falls outside the scope of that right, such as when a patient is
unconscious. Should this occur, the treating doctor must inform the patient of
such action as soon as he/she is conscious enough to understand. Essentially this means that while patient autonomy must be respected, the
medical practitioner is allowed to make an emergency decision to ensure the
patient's best interests are protected where the patient's condition or life is
in jeopardy,” explains Samantha.
Read: Doctor who raped unconscious patients avoids prison time
The National Health Act provides that health care providers (this includes
health care practitioners) must inform patients of the following:
- The user's health status, except in circumstances
where there is substantial evidence that the disclosure of the user's health
status would be contrary to the best interests of the patient.
- The range of diagnostic procedures and treatment
options generally available to the patient.
- The benefits, risks costs and consequences generally
associated with each option.
- The user's right to refuse health services and explain
the implications, risks and obligations of such refusal.
professionals should therefore always ensure that they secure the proper
informed consent from each and every patient,” concludes Samantha.
SA's shocking medical malpractice crisis
The unseen costs of medical malpractice
Hospitals more risky than flying
Aon South Africa
South Africa is a leading provider of
risk management services, insurance and
reinsurance brokerage, human capital and
management consulting, and speciality insurance underwriting. The company
employs more than 1300 professionals in its 16 offices in South Africa with its
head office in Sandton Johannesburg. Aon employs over 1800 people on the