When taking action against a doctor, a patient has two options. The first is to complain to the Health Professionals Council of South Africa (HSPCA). This complaint would be dealt with in terms of an ethical breach of conduct within the profession and the patient would not be compensated in any way. The second option would be for the patient to lodge a civil claim by taking the doctor to court and suing for damages (or patrimonial loss).
For the purpose of this discussion, we will be looking at medical negligence, whereby the negligent or intentional unlawful conduct on the part of a doctor causes injury or damage to a patient or a patient’s property. Another form of negligence occurs when a doctor fails to exercise the degree of skill and care required of a reasonably competent doctor, resulting in the patient being harmed.
Where negligence is alleged, the opinion of another doctor will be required. This is usually an expert in the field and the burden of proof to show that the doctor was negligent lies with the patient.
Many claims for medical negligence have been brought by parents who allege that they were not advised of the likelihood of giving birth to a baby with Down Syndrome. At present, South African law does recognise a parental claim for patrimonial damages (meaning the actual costs and expenses) suffered by parents following the misdiagnosis of a disability prenatally in circumstances where the parents would have chosen to terminate the pregnancy. The claim is thus for unwanted financial burden on the basis that the lack of knowledge deprived the parents of an informed choice to terminate the pregnancy.
More recently, parents have been able to prove the link between the doctor’s conduct and the result by showing that the doctor’s negligence deprived the parent of the opportunity to consider the choice to abort the foetus.
Our courts have generally found that if a doctor fails to inform a pregnant patient that she is at greater risk than normal, of having an abnormal or disabled child, or incorrectly informs her that she is not at greater risk, when she reasonably requires such information in order to make an informed choice whether to terminate such pregnancy, he or she is liable to the patient for the damages suffered by giving birth to an abnormal or disabled child. A doctor is, therefore, under a legal duty in terms of any doctor/patient relationship that may exist, to disclose to that parent the risk of giving birth to a disabled child.
Any doctor who fails to properly disclose the risk that patients might have an abnormal child or fails to properly diagnose an abnormal foetus would, in essence, be depriving the prospective parent of the chance to make a fully informed procreative decision.