Abstract:
The focus in the mini-dissertation is the concept of the duty of care which is analysed from a pragmatic medical malpractice perspective. South Africa has experienced a sharp increase in medical malpractice litigation in recent years and, although there is anecdotal evidence that many of these cases are without merit, this trend causes great concern in both public and private health sectors.
The South African medical malpractice liability system is replete with contradictions ? why is it that not all patients who suffer negligent injuries institute action against health care professionals, and why do other patients who suffered no negligent injury, litigate? Theories that good communication may be a factor and that physicians who communicate well with their patients are less likely to be sued are supported in the dissertation.
The duty of care, although a legal concept, lies at the heart of good medical practice. Physicians owe their patients a duty of care, both in contract and in delict. Codes of ethics further influence the standard of behaviour of the physician. Concerns have been expressed that there is a decline in professionalism and that the standard of care offered has decreased. Physicians are not infallible and to err is human. As South Africa is a country with limited resources it may be necessary to opt for a utilitarian standard of care that in many instances is below that which is expected in the developed world, but there is no ethical or legal reason why patients should be denied the duty of care.
The foundations in contract and delict of the duty of care are laid down and the relevance of standards of care in this context is outlined. Actions constituting negligence are examined and the responsibilities of the health professional in relation to the duty of care are discussed and applied in the context of South African medical malpractice. Recommendations are proposed for consideration to curb the South African medical malpractice storm.
