Abstract:
Many private hospitals in South Africa have consistently tried to discharge themselves from liability by having patients sign admission forms that contain indemnity or exclusionary clauses. They rely on standard legal rules like the caveat subscriptor rule and pacta sunt servanda to bind vulnerable patients to unconscionable terms. The former rule binds contracting parties to an agreement they signed, irrespective of whether they read and understood it. In the well-known Afrox Healthcare Bpk v. Strydom decision, the Supreme Court of Appeal ruled that common law allows hospitals to escape responsibility for medical malpractice causing death or bodily or psychological harm, excluding cases of gross negligence. The consequences of this judgment have now been surpassed by the provisions of the Consumer Protection Act of 2008 (‘CPA’), which came into effect in March 2011. The Act aims to ‘promote and advance the social and economic welfare of consumers in South Africa.’ My research identifies the effect of exclusionary clauses in medical and hospital contracts, particularly when analysed in light of the provisions of the Consumer Protection Act. The Afrox case has been controversial, with many legal scholars arguing that the case's premises must be reversed since the ruling violates public policy. It is argued that with the Consumer Protection Act in effect, exclusionary provisions in medical and hospital contracts should gradually lose their substantial influence over consumers. The Act is a step in the right direction toward patient and consumer protection and education.
