Publications
Partners
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 obstetrics.
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 medical intervention.
'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 harm.
- Consent must have been given freely and voluntarily.
- Consent cannot be given for illegal purposes (such as euthanasia).
- Consent must not have been revoked.
Emergency decisions
“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.
Medical professionals should therefore always ensure that they secure the proper informed consent from each and every patient,” concludes Samantha.
Read more:
SA's shocking medical malpractice crisis
The unseen costs of medical malpractice
Hospitals more risky than flying
About Aon South Africa
Aon 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 African continent.
