Medical Law – “Negligent misstatement” of a patient’s HIV status: what risk befalls the health care provider?

 1. In the matter of Geldenhuys v National Health Laboratory Services 2014 JDR 1656 (GP) the appellant (Ms Geldenhuys) instituted action against the respondents (the National Health Laboratory Services and the MEC for Health and Welfare, Limpopo) for damages suffered as a result of an alleged negligent misstatement in respect of her HIV status. The …

Medical law – Res Ipsa Loquitur debate

It has until recently been accepted that the maxim of res ipsa loquitur (the facts speak for themselves) does not find application in cases involving medical negligence in accordance with the findings of the Appeal Court in the matter of Van Wyk v Lewis [1924 AD 438].  This position was recently reconsidered by the Supreme …

Medical Law – A claim for compensation arising from a failed sterilisation could include damages suffered during parturition

Introduction 1. It is trite that our law recognises a claim by parents in respect of the financial costs involved in supporting a child born following a failed sterilisation. The matter of The Premier of the Western Cape Province v Loots 2011 (SCA) 32, however, concerned a delictual claim for damages suffered by the mother following …

Medical law – Requirements for valid surrogacy agreements and the sanctions that medical practitioners may face if these requirements are not complied with

Medical practitioners involved in artificial fertilisation or involved in rendering assistance in artificial fertilisation in respect of surrogacy should familiarise themselves with the relevant provisions of the Children’s Act 38 of 2005 (hereinafter referred to as “the Act”) or face possible criminal sanctions in respect of a contravention of the Act. Prior to the Act …

Medical Law – Recognition of “wrongful life” claims and its impact on medical malpractice in South Africa

The Constitutional Court in H v Fetal Assessment Centre 2014 JDR 2720 (CC) set the framework within which the High Court is to consider the recognition of a child’s claim against a medical practitioner who misdiagnosed a congenital disability or some serious medical condition pre-natally, resulting in the child being born with a disability.  Such …

Medical Law – To turn or not to turn a critically ill patient – that is the question

The Supreme Court of Appeal handed down judgement on 26 September 2014 in the matter of Medi-Clinic Limited v George Vermeulen (unreported).  The issue before the court was the avoidability of bedsores in critically ill patients.  In coming to a decision, the court reaffirmed the principles involved when critically assessing directly opposing expert evidence. Mr …

Medical Law – A Surgical Complication does not Per Se amount to negligence

In the recent case of Buthelezi v Ndaba 2013 ZASCA 72 the Supreme Court of Appeal confirmed the principles involved when drawing inferences as to negligence on the part of a surgeon where a known complication arises. Dr Buthelezi, the appellant, performed a total abdominal hysterectomy on Ms Ndaba. She developed a vesico-vaginal fistula, which …

Medical Law – Naming of your Practice

The Health Professions Council of South Africa’s (“HPCSA”) Ethical Rules of Conduct contain strict rules with regard to the naming of a medical practice. Failure to comply with these rules may result in disciplinary action by the HPCSA and a guilty finding of unprofessional conduct could attract a fine. Rule 5 of the Rules of …

Medical Law – Medical Practitioners and Fees charged for services rendered: The HPCSA has set the deadline for Practitioners’ comments on its proposed Guideline Tariffs for 18 November 2013

The period for commentary on the HPCSA’s Guideline Tariffs lapses on 18 November 2013.  As these tariffs will be used by the HPCSA to adjudicate complaints pertaining to overcharging, we recommend that practitioners partake in this process.  The proposed process for commentary can be found on the HPCSA’s website. The Health Professions Act 56 of …

Medical law – The Role of the New Health Standards Watchman

The National Health Amendment Act, 12 of 2013 (“the Amendment Act”) provides for the establishment of quality requirements and standards in respect of health services provided by health establishments in both the public and private health sectors.  The purpose of the quality requirements and standards is to promote and protect the health and safety of …

Medical Law – Introduction of Quality Requirements and Standards

The National Health Amendment Act, 12 of 2013 (“the Amendment Act”) provides for the establishment of quality requirements and standards in respect of health services provided by health establishments in both the public and private health sectors.  The purpose of the quality requirements and standards is to promote and protect the health and safety of …

Medical Law – The Requirements for dispensing doctors

Prior to 01 April 1966 the authority of medical practitioners to dispense or compound medicines was governed by section 52 of the Health Professions Act. Under this act, a medical practitioner who desired to dispense medicines simply had to inform the HPCSA of his intention to dispense medicines. The HPCSA had a discretion to then …