If you’ve suffered a serious injury due to a medical procedure for which you didn’t give adequate informed consent, you may have grounds for a medical malpractice claim.
At DSC Attorneys, our personal injury attorneys have the experience and expertise to pursue this type of claim and help get you the compensation you deserve.
Informed consent in South African law
The legal requirements for informed consent within South Africa are laid out in the National Health Act 2003 (NHA).
Before a health service is carried out by a medical practitioner, the user (or patient) must give his or her informed consent. This means the patient must give his or her consent after being fully informed about the procedure.
So, what should a healthcare provider legally inform a user about? According to the NHA, a healthcare provider must inform a user of:
- his or her health status – except where there’s substantial evidence that its disclosure isn’t in the patient’s best interests
- the diagnostic procedures and treatment options available to the patient
- the benefits, risks and consequences associated with each option
- the right to refuse health services and the implications, risks and obligations of refusing them.
The healthcare provider must, where possible, inform the user in a language that he or she understands and takes into account his or her level of literacy. A healthcare provider must take all reasonable steps to obtain a user’s informed consent.
According to section 7 of the NHA, a health service can’t be provided without informed consent. There are, however, circumstances when this doesn’t apply.
- The patient is unable to give informed consent, but consent is given by a person who has been either:
- mandated by the user in writing to grant consent on his or her behalf
- authorised to give consent in terms of any law or court order.
- The patient is unable to give informed consent and no person is mandated or authorised to give consent, then consent can be given by a family member in the specific order below:
- spouse or partner
- adult child
- brother or sister.
- The provision of a health service without informed consent is authorised if:
- failure to treat the patient, or group of people including the patient, will result in a serious risk to public health
- any delay in the provision of the health service to the patient might result in his or her death or irreversible damage to his or her health and the user hasn’t expressly, impliedly or by conduct refused that service.
Principles of informed consent based on case law
While the NHA codifies the requirements in law for informed consent, historically in South Africa case law has been applied to determine the principles surrounding informed consent.
Richter and Another v Estate Hamman (1976)
This case established that the right of disclosure was centred on the medical profession.
The test to determine if a medical practitioner had been negligent in not disclosing a particular risk to a patient was the “reasonable doctor test”. In other words, would a reasonable doctor have disclosed the particular risk to a patient or not?
No consideration was given to the possibility that a particular patient might have considered a particular risk as significant. A ruling was made that if a risk to a patient was sufficiently small – less than 2% – the doctor was not required to fully explain it or inform the patient of the risk.
Castell v De Greef (1994)
In 2004, an important case changed the courts approach to risk and informed consent in line with prevailing human rights culture.
A patient sued her plastic surgeon after a double mastectomy and reconstruction that left her with infection and necrosis. The operation had a 50% risk of complication.
During an appeal, the South African Supreme Court in Cape Town held that the plastic surgeon had not disclosed the risks involved.
It was held that if the patient had known of the risks, she would not have undergone the procedure. The judge stated, “…I am of the view that there is not only a justification, but indeed a necessity, for introducing a patient-oriented approach in this connection.”
With this decision, the Supreme Court of Appeal established the “reasonable patient” standard for disclosure in providing informed consent. The court defined a risk as being material if:
- a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it
- the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
The judgement moved the standard for disclosure away from a “reasonable doctor” one to a “reasonable patient” one in accord with the fundamental right of self-determination and individual autonomy.
Beukes v Smith (2018)
Recently, in Beukes v Smith (2018), a patient sued her doctor after suffering bowel perforation following a laparoscopic procedure to repair a hernia.
The case rested on the patient’s allegation that her doctor took the decision to perform the hernia repair as a laparoscopy (using small incisions in the abdomen) instead of a laparotomy (one larger incision) without informing her of the relative risks and benefits of the two procedures.
The patient argued that the doctor did not inform her that the laparoscopic procedure carried a higher risk of bowel injury.
Dr Smith said that Mrs Beukes gave him informed consent orally after he had explained both procedures to her.
However, in delictual claims based on a lack of informed consent, it’s not enough to prove that the patient wasn’t adequately informed prior to agreeing to a treatment course. Causation is still a requirement.
The Court found that Mrs Beukes had not proven that the perforation of her bowel would likely not have occurred if Dr Smith had performed the laparotomy instead.
This case has subsequently been criticised for anti-patient prejudice.
We recommend reading this study if you’re interested in learning more about the legal context for informed consent in South Africa.
Lack of consent and medical malpractice
If a medical procedure results in serious injury and informed consent was not adequately obtained, a victim can claim compensation in five areas, referred to as “heads of damage”:
- past hospital and medical expenses
- past loss of earnings
- future hospital, medical and supplementary expenses
- future loss of earnings and interference with earning capacity
- general damages, loss of amenities of life and disfigurement.
A different amount may be claimed in each of these areas. In addition, a family member of a breadwinner who has died as a result of medical malpractice can claim funeral expenses and loss of support.
What to do if you may have a malpractice claim
If you or a close family member is a victim of medical malpractice, it’s important to contact a medical malpractice lawyer. A suitably qualified legal professional can provide you with important advice and represent your interests in a medical malpractice claim.
It’s also possible to file a complaint with the Health Professions Council of South Africa (HPCSA). This won’t result in you receiving compensation for harm or losses you’ve suffered. However, it could lead to disciplinary action being taken against the negligent party.
Medical malpractice attorneys
At DSC Attorneys, we specialise in medical malpractice claims and have extensive experience of informed consent.
Our personal injury attorneys and medico-legal team can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve. We work on a no win, no fee basis.