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SAMJ VOL80 6 JUL1991

23

The legal liability of doctors and hospitals


for medical malpractice
\

F. F. W. VAN OOSTEN
Summary
A broad ovewiew of the fundamental principles relating to
leaal liability for medical malpractice is presented. The issues
e&unded;
discussed and- illustrated- are the nature and
consequences of the relationship between doctor/hospital
and ~atient,effective consent as a reauisite of lawful medical
interventions, emergency treatment, medical negligence and
the vicarious liabilii of doctors/hospitals for the negligence
of others.
S Afr Med J 1991;80:23-27.

Medicine and law have since time immemorial been strange


bedfellows. Famous ancient sources that bear testimony to the
interrelationship between medicine and law are, for instance,
Hammurabi's Code and the Hippocratic Oath, which contain
a number of legal and ethical provisions governing the legal
liability and behaviour expected of medical practitioners. Today
the conduct of doctors and practice of medicine are regulated
by a steadily increasing body of medicolegal principles of
diverse origin. Examples of these in the international sphere
are the Declarations of Geneva, Helsinki, Oslo and Tokyo and
the International Code of Medical Ethics, and in the local
sphere, the South African Medical and Dental Council's rules
of conduct as well as the South African Medical Research
Council's ethical considerations in medical research, to mention
but a few. In addition, there is the South African legal system
itself, which governs a multitude of aspects relating to the
practice of medicine. A substantial number of these are dealt
with by various statutes (e.g. the Medical, Dental and Supples No. 56 of 1974 and Nursing Act
mentary Health S e ~ c e Act
No. 50 of 1978) and diverse scattered statutory provisions (e.g.
the Abortion and Sterilisation Act No. 2 of 1975 and the
Human Tissue Act No. 65 of 1983) that deal specifically with
medical matters. while the remainder fall within the ambit of
the common law (i.e. legal custom and judicial precedent).
Matters encompassed by medical law are, apart from those
discussed here, among others, abortion, sterilisation, euthanasia,
experimentation, insanity, intoxication, medical secrecy, organ
and tissue transplantation, artificial human procreation and
'sex-change' operations.
One of the many aspects of medical law that presents a
constant source of concern and anxiety to medical practitioners
is that of legal liability for medical malpractice. Medical
malpractice suits may not only have serious financial implications for the medical practitioner but may also adversely affect
his professional reputation. However, a fundamental notion of
and scrupulous adherence to a number of cardinal legal principles relating to the doctor-patient relationship can go a long
way towards-avoiding medidicalmalpractice litigation and its
attendant inconvenience and embarrassment. This article
attempts to present a broad overview of the salient features of

Department of Criminai Law, University of Pretoria


F.F. W. VAN OOSTEN, B.A. LL.B., LL.D., LL.D.
Accepwd 14 Sepr 1990

medical malpractice liability in the South African context.


This is done with reference to the relationship between doctor/
hospital and patient, consent to medical interventions, emergency treatment, medical negligence and vicarious liability.

The relationship between doctor/hospital


and patient
The legal relationship between doctor or hospital and patient
is primarily based on contract,' but may also be based on a
duty of care (e.g. where a seriously injured unconscious patient
is brought to a casualty ward for emergency treatment). In the
ordinary course of events, the parties enter into an express or
tacit agreement: the patient consults the doctor about his
complaint, and the doctor undertakes to diagnose the patient's
ailment and treat his condition in return for payment of his
professional fees. Moreover, since in terms of the fundamental
principles of freedom of contract both doctor and patient are
free agents, this means that medical practitioners have neither
a professional right (on the basis of their ethical duty to heal
and act in the patient's best interest) nor, generally speaking, a
legal duty to intervene medically. As regards the former, our
law proceeds from the cardinal premise that the patient has a
right to self-determination and, hence, a right to refuse medical
treatment that may save his life or preserve his health (see
Phillips v De Klerk 1983(T) (unreported), in which it was held
that a Jehovah's Wimess has the right to refuse a life-saving
blood transfusion). As regards the latter, a legal duty to
administer treatment will, as an exception to the general rule,
be incumbent upon a medical practitioner in the following
categories of instances:
1. Where he assumes control over a potentially
dangerous situation andlor object. Thus a failure by
hospital staff to: (23 properly set the patient's ankle fracture
and mould the plaster of Paris cast; '(iz] initially check the
fracture dislocation by means of radiographs; and (iiz] subsequently correct the fracture position, resulted in the hospital
being held liable for darnages.2 Likewise, a failure by an
anaesthetist constantly to monitor the patient and to ensure
that the endotracheal tube remained correctly inserted, resulted
in the anaesthetist being convicted of culpable homicide.3
2. Where he is under a statutory duty to act.-Failure by
a district surgeon to vaccinate patients who present themselves
for compulsory immunisation against a communicable disease
' '
'ly liable.
may render him civilly &or
3. Where he is under a contractual duty to act. Failure
by a doctor to respond to an urgent call from one of his
regular patients, who is being treated by him for a serious
condition, which results in harm to the patient, may render
him civilly and/or ' ' 'ly liable.
4. Where an emergency situation exists. Failure by a
medical practitioner to render assistance in cases of a bomb
blast or traffic accident may render him civilly and/or criminally liable.
It must be pointed out, however, that these categories of
cases in which legal liability for an omission may be incurred,
do not represent a closed list. The courts are at any given time
free, should these categories prove to be inadequate to cater
for new situations that may arise, to extend them in accordance

24

SAMJ VOL80 6 JUL1991

with the prevailing juristic notions of society. In such cases the


test of legal liability will be whether the omission in question
was objectively unreasonable in terms of society's notion of
what might be expected of medical practitioners in the circumstances. Whether or not an omission to act will be considered
objectively unreasonable, will depend upon all the surrounding
circumstances of the case on hand, inclusive of factors such as
the doctor's actual knowledge of the patient's condition; the
seriousness of the patient's condition; 'the professional ability
of the doctor; the physical state of the doctor; the availability
of other doctors, nurses or paramedics; the interests of other
patients; and professional ethical considerations. However, it is
important to note that in the absence of negligence on the
doctor's part, legal liability for omissions is out of the question.

Effective consent to medical interventions


The doctor-patient relationship being primarily contractual by
nature and, hence, one which requires agreement between the
parties as to the proposed medical intervention, it follows that
the patient's consent is fundamental to lawful medical interventions. Indeed, barring exceptions, such as emergency
situations, stgtutory authority and, conceivably, authorisation
by the court, the general rule is that in the absence of effective
consent of either the patient himself or of someone acting on
his behalf, medical interventions are unlawfid and may result
in the doctor being held liable for assault or negligence or in
him being unable to recover his professional fee. This applies
irrespective of whether or not the intervention was administered
with,due care and skill and eventually proves to have been
beneficial to the patient. To allow doctors to administer medical
treatment against their patients' will on the basis of the
doctor-knows-best and in-the-patient's-best-interest criteria,
would be tantamount to practising medical paternalism at the
expense of patient autonomy. Like the contract between doctor
and patient, consent is usually implied by the patient's conduct,
but may be granted expressly either orally or in writing. The
requirements of effective consent in the medical context are
the following:
1. It must be recognised by law, that is it must be in
accordance with public policy. Factual consent by a philanderer
to undergo castration to save his faltering marriage or by a
kleptomaniac to have his hands amputated so as to render
future thefts by him virtually impossible, will not be legally
recognised.
2. It must be given by someone who is legally capable
of consenting. Two classes of patients must be distinguished
here:
(a) Adults. Adults, provided they are sane and sober, have
the capacity validly to consent to medical interventions. Should
the patient be in a state of unconsciousness, delirium, shock or
coma, he will be incapable of consenting in law. Although the
same applies to patients who are mentally ill, they are specifically catered for by the Mental Health Act (No. 18 of 1973,
section 60 (A)) which provides that the consent of the following
persons, in order of precedence, must be procured: a curator,
the patient's spouse, parent, major child, brother or sister or,
where the patient has been admitted to a mental institution,
the superintendent (provided the aforementioned persons
cannot after reasonable enquiry be found and the doctor has
reasonable grounds to believe that the intervention in question
is necessitated by the patient's life b e i i endangered or his
health seriously threatened) of that institution. In the case of
married couples, each spouse must consent to his or her own
treatment.
diagnosis &or
(b) Minors. Minors who have attained the age of 18 years are
competent, provided they are sane and sober, validly to consent
to medical operations and treatment without the &stance of

their parents or guardians (in terms of the Child Care Act No.
74 of 1983, section 39(4)). Minors under the age of 18 years,
however, need the consent of their parents or guardians to
medical interventions. In the event of a conflict between the
child's father and mother, the father's views settle the matter
unless they go manifestly against the child's medical interests.
Where a minor under the age of 18 years refuses to submit to
an indicated medical intervention consented to by his parents,
the doctor would be safe to rely upon the latters' consent.
Where the parents or guardians have delegated their power to
consent to medical interventions upon their children to, for
instance, relatives or teachers, the latters' consent suffices.
Moreover, the Child Care Act (sections 39(1) and (2) and
53(1) and (4); cf &on 53(3)) vests the authority to consent to
indicated medical operations upon and treatment of children
in persons other than the child's parents or guardians to cater
for contingencies: (3 the minister of health and welfare where
the parents or guardians refuse consent on, for example,
religious grounds, or where the parents or guardians cannot be
found or where the parent or guardian is mentally ill or
deceased; and (iz] the superintendent of a hospital, heads of
institutions, such as reform schools, schools of industries and
children's homes, and persons in whose custody the child
finds himself where the medical intervention is necessary to
preserve the child's life or to save him from serious and lasting
physical injury or disability and so urgent that it cannot be
deferred for the purpose of consulting the person who is
legally competent to grant consent.
3. It must be informed consent. Ordinarily, lawfid consent
is out of the question unless the consenting party knows and
appreciates what it is that he consents to. Since the patient is
usually a layman in medical matters, knowledge and appreciation on his part can only be effected by furnishing him with
appropriate information In this way, adequate information
becomes a requisite of knowledge and appreciation and,
therefore, also of lawful consent. In the absence of information, real consent will be lacking. In turn,this means that the
informed-consent requisite casts upon the doctor as an expert
a corresponding legal duty to provide the patient with the
necessary information to establish knowledge and appreciation
and, hence, real consent on his part. The purpose and function
of the informed-consent requisite is: (I] to ensure the patient's
right to self-determination and freedom of choice; and (ii) to
encourage rational decision-making by enabling the patient to
weigh and balance the benefits and disadvantages of the
proposed intervention in order to come to an enlightened
choice whether to undergo or refuse it. What this means, is
that the doctor must give the patient a general idea (there
being no obligation to disclose in detail all the complications
that may arise) in broad terms and in layman's language of the
nature, scope, administration, importance, consequences, risks,
dangers, benefits, disadvantages and prognosis of, as well as
the alternatives toJ the proposed intervention. More particularly, all serious and typical risks and dangers should be
disclosed, but not unusual or remote risks and dangers, unless
perhaps they are serious or typical or where the patient makes
enquiries about them. Thus a duty to disclose the serious risk
of disfigurement, cosmetic changes, severe irradiation, necrosis
and amputation of a minor patient's legs and hands was held
to have been incumbent upon a doctor who had administered
radical radiotherapy for Kaposi's haemangiosarcoma without
informing the patient's mother of these dangem4 On the other
hand, a duty to disclose the remote risk of becoming sterile
and of receiving bums, which caused the patient a great deal
of pain and discomfort, was held not to have been incumbent
upon a doctor who had administered radiotherapy to remedy
the patient's fibrosis of the uterus.5 Whether disclosure of the
diagnosis is obligatory, is a moot point, but it is conceivable
that diagnosis disclosure is imperative where: (13 it may affect

&e patient's decision whether or not to submit to the proposed


intervention; (n] it
an express Or implied term of the

contract between doctor and patient; and (iiz] it is essential for


therapy. An extended duty of disclosure is commonly recognised where the patient asks questions, in which case there is a
duty incumbent upon the doctor to respond both fully and
truthfully to the patient's enquiries. On the other hand, no
duty of disclosure would appear to exist where: (9the patient
is already in possession of the requisite information: (iz) the
patient expressly or irnpliedly waives his right to information;
(ii] the defence of a so-called 'therapeutic privilege' or 'contraindication', in terms of which the harm caused by disclosure
would be greater than the harm caused by non-dis&osure (e.g.
in terminal cancer or emphysema cases, but only if a real
conflict exists between the duty to inform and the duty to
heal), is applicable; and (h)
disclosure is, in the circumstances,
physically impossible (e.g. where a minor patient is brought to
hospital and left there for diagnosis and treatment by his
parents or a relative and thk latter leave for home where they
m o t be contacted).
4. It must be comprehensive, that is extend to the entire
transaction, inclusive of its consequences.
5. It must be clear and unequivocal
6. It must be free and voluntary, that is not induced by
fear, force or fraud.
A genuine but mistaken belief on the doctor's part that
lawful consent to a medical intervention has been granted will
not exclude the wrongfulness of his conduct, but may exclude
the requisite intention for assault, and a mistaken but reasonable
belief to the same effect may exclude negligence on his part.

Emergency treatment
Medical interventions in emergency situations may be justifled
by one of two defences:
l. Unauthorised administration. Where, due to unconsciousness, delirium, shock or coma arising from indulgence or
accident, it is impossible to obtain the patient's consent to a
medical intervention, which is urgently necessary to save his
life or to preserve his health, the defence of unauthorised
administration may avail the doctor who performs the intervention. Like the defence of consent, unauthorised administration renders the intervention in question lawful, provided the
following requirements are met:
(a) There must be m emergency which necessitates the intervention, that is there must be an immediate threat to the
patient's life or health that renders the delay of the intervention
until such time as the patient will be in a position to consent
immssible.
(b) The patient musr be incapable of consenting to the inrervention. Where the patient is capable of consenting, his consent
must be procured, irrespective of the danger to his life or
health. The fact that a mere imminent threat to the patient's
life or health provides no justification in terms of unauthorised
administration for emergency interventions where consent is
obtainable, is amply borne out by the patient's right to refuse
life-saving or health-preserving treatment. An emergency in
unauthorised-admin+tration cases therefore not only relates to
the patient's life or health, but also to the impossibility of
procuring his consent.
(c) The intervention musr not be against the patient's will.
Since unauthorised administration implies that the patient
would have consented to the intervention in question had he
been in a position to do so, it follows that medical interventions against the patient's will cannot be justified by
unauthorised administration.
(d) The intervention must be intended to save the patient's life
or to protect his health.

2. Necessitg. Like unauthorised administration, necessity


as a defence in the medical context also connotes lawful
medical interventions in emergency situations, but unlike
\ unauthorised administration it does not require that the patient
was incapable of consenting or that the intervention m k t not
be against his will or that the intervention must be in his best
interest. Necessity as a defence will therefore be relevant
where the patient was capable of consenting or where the
intervention was against his will or where the intervention was
performed in the community's best interest. Thus the inoculation of healthy persons against their will in order to prevent a
dangerous and infectious disease from spreading may be justified in necessity. Likewise, an emergency blood transfusion on
the unconscious victim of a bank robbery, who subsequently
turns out to be a Jehovah's Wimess, may be justified in
necessity.
An emergency deviation from or extension of the operation
agreed upon (where the patient's consent is sufficiently wide
to cover the extension or deviation, it goes without saying that
the extension or deviation is justified by consent), to save the
patient's life or to preserve his health while he is under an
&aesthetic on the operating table, may be justified by necessity
or unauthorised administration, depending upon whether or
not the deviation or extension eventually proves to have been
against his will.
A genuine belief that an emergency situation existed may,
again, excuse the doctor from liability for assault, while a
reasonable belief to the same effect may excuse him from
liability for negligence.

Medical negligence
1. Factual situations. The fact that the patient's consent has
been obtained or a situation of emergency exists does not,
however, rule out civil ancUor criminal liability for the medical
intervention performed by the doctor. If the diagnosis or
treatment is performed negligently and causes the patient
physical or mental harm or his death, the negligent doctor may
be held liable (civilly for damages and criminally for culpable
homicide as the only relevant crime for which negligence
suffices; where the doctor has the intention to kill, as in the
case of euthanasiaY6he may be convicted of murder) on
account of negligence. Negligence in the medical context
refers to a multitude of situations, among others the performance of an illegal operation, the use of defective medical
instruments or equipment, a wrongful diagnosis, a wrongful
blood transfusion, incorrect or incompetent technique or procedure, incorrect or incompetent administration of anaesthesia,
the administration of an overdose of medicine or drugs, leaving
behind medical instruments or equipment in the patient's
body, insdEcient after-care, and excessive radiotherapy, to
mention but a few.
2. The test of negligence. In any given context, negligence
means: ( i ) that the defendant or accused failed to foresee and
guard against the possibility of harm to the plaintiff or victim;
and (iz? that the reasonable man in his position would have
foreseen that possibility of harm and would have guarded
against it. Fundamentally the test is an objective one in so far
as the hypothetical or fictitious 'reasonable man' sets the
standard, but it also comprises a subjective element inasmuch
as it requires, in addition, that the reasonable man be placed in
the same position as the defendant or accused found himself at
the time. In turn, the reasonable man is commonly defined not
as the perfect man, but as the man of average intelligence,
knowledge, competence, care, skill and prudence.
3. The reasonable doctor. One of the well-recognised
exceptions to the basic objective test for negligence is the case
where a person professes expertise in a particular field. In

such instances the standard of negligence is raised to that of


the reasonable expert. Since the medical practitioner is professionally qualified, this means that he is judged in accordance
with the reasonable-expert criterion, the test being the
reasonable doctor in the position of the individual doctor. In
this regard, however, it has repeatedly been emphasised that
what is required of the medical practitioner is not the highest
possible degree of professional care and skill, but reasonable
care and skill. Consequently, the standard is not based on
what can be expected of the exceptionally able medical practitioner, but simply on what can be expeaed d the average
medical practitioner, bear@ in mind that a Ilredical practitioner is a human being and not a machine.
4. General practitioner or spedalkt. In conformity with
the reasonableexpert standard, the test of negligence clearly
distinguishes between the standard of care and skill required
of specialists as opposed to general practitioners. If the doctor
is a general practitioner, the test is the reasonable general
practitioner. If the doctor is a specialist, the test is the
reasonable specialist in terms of the branch of the profession
to which he belongs. Thus, if the specialist is a heart surgeon
or a ne~rologist,~the
test will be the reasonable heart surgeon
or neurologist, as the case may be. The only exception to the
rule is where a medical practitioner professes to be or holds
himself up &a specialist in a particular sphere, in which event
he will be bound by his representation and judged accord'iy.
Closely allied to this exception is the rule that where a medical
practitioner, who does not hold himself up as a specialist in a
particular sphere, engages in an undertaking that requires a
certain degree of experience, knowledge, skill or training, well
knowing that he lacks that degree of experience, knowledge,
skill or training - the so-called impen'ria d p a e izahmeratur
rule.
5. Locality of practice. There are conflicting opinions7on
the question whether the locality where the doctor practises
should be afforded a role in determining whether or not he
was negligent. On the one hand, there is the view that the
same skill and care cannot be expected of a doctor in a country
town as of a doctor in a large centre. On the other hand, there
is the view that the fact that several incompetent or careless
practitioners happen to settle at the same place, cannot affect
the standard of diligence and skill that local patients have a
right to expect. Taking into consideration the uniformity,
generally speaking, of medical training in South Africa, the
latter opinion seems preferable. This must, however, not be
taken to mean that the place where the medical inremention is
carried out is completely irrelevant in determining negligence.
Since nesiigence is dependent upon all the surrounding circumstances of the case on hand, the facilities and personnel at
the hospital or clinic where an operation is carried out will, in
conjunction with the practice of the profession, be relevant
factors in determining whether or not the doctor concerned
was negligent.
6. Contributory negligence. The fact that the patient also
contributed to the harm that has befallen him, affords the
doctor who is guilty of negligence no defence. Contributory
negligence can at best lead to an apportionment of damages or
mitigation of sentence. Likewise, whether the degree of negligence established on the doctor's part is slight or gross, makes
no difference to his civil andlor criminal liability, but may
iduence the quantum of damages awarded War severity of
the punishment imposed.
7. Onus of proof. The onus of establishing negligence on
the doctor's part lies with the patient in a civil case and the
State in a criminal case. In a civil case negligence must be
established on a balance of probabilities, whereas in a criminal
case negIigence must be proved beyond reasonable doubt. In
this regard, it must be noted that the patient or State cannot
rely upon the case speaking for itself the so-called res ipsa

loqdtur rule in dischargiog hirnseWitself of W i t s burdenof proof. The fan that the case speaks for itself may amtribute
to establishing neg&we, but does not, as such, constitute
proof of negligence, Thus negligence will not automatically be
taken to have been established o n a it is proven that a doctor
injected an allergic patient with penicillin or that the doctor
left a pair of forceps in the patient's body. It is not wholly
surprising that this situation has met with severe critidsm on
the basis that where the case speaks for itself, there ought to
be a pmumption of negligence in favour of the patient, which
may then be rebutsed by the doctor. At present the patient as
a layman is in the invidious position that he is saddled with
the full burden of establishing medical negligence and, comeqmtly, with taking on experts in their own f ~ l dA. variety of
solutions has been affered and devised to remedy this imbalance
to ensure that justice is done to both doctor and patient, but as
yet some of these have not been put to the test, while those
that have been implemented have, in the main, not lived up to
expectations. To place the onus of disproving negligence with
the doctor also does not provide the answer to the problem,
since that in turn would put him at a disadvantage. Hence, the
patient's position in this respea remains essentially an unequal
and unsatisfactory one.

Vicarious liability
1. Doctors. Unless they have exercised a negligent choice by
knowingly selecting an incompetent and inexperienced anaesthetist, radiologist or nurse, medical practitioners cannot incur
legal liability for the negligent conduct of such anaesthetist,
radiologist or nurse acting under his direction and supervision.
The reason for this is that anaesthetists, radiologists and
nurses perform their services as independent contractors and
not as servants of the medical practitioner vncerned. The
patient or State will therefore have to take action against the
negligent anaesthetist, radiologist or nurse concerned.
2. Hospitals. Until recently,8 a similar view has been taken
in cases of hospital liability for negligent conduct on the part
of its professional personnel, which falls within the scope of
their employment or the exercise of their duties, although
there was no unanimity on the point. The majority view used
to be that since doctors and nurses in the service of a hospital
are not its employees when it comes to the performance of
provided it has
their professional duties, the hospital
exercised reasonable care in assuring itself of their professional
competence - mnnot incur legal liability for the wrongful
conduct of its doctors or nurses. Since, on the other hand,
hospital personnel are under the control of the hospital in
respect of their administrative duties, it can incur legal liability
for their wrongful exercise of administrative duties. This view
has recently been superseded by the erstwhile minority view
exercise
that hospitals can incur legal liability for the
by doctors and nurses of their professional duties. Since
hospitals are ordinarily in a better position to compensate
patients for the harm they suffer as a ksult of the negligence
of their professional personnel, this means that the patient is
not simply left without a remedy where the doctor or nume is
fmcially incapable of footing the bill. It hardly needs any
mention that there is nothing that prevents the patient from
seeking his redress against the doctor or nurse concerned
instead of against the hospital, but at least he now has a
choice.
3. Hospital superintendents. A hospital superintendent
will only incur legal liabiity for the medical malpractice of his
professional personnel as a CO-perpetratorwhere he personafly
participated in the wrongful conduct complained of or unreasonably failed to prevent the harm in question.

Conclusion
It is perhaps fitting to conclude with reference to the leading
case of Richter v. Estate H~minann.~
The facts were that the

patient, a young married woman, had fallen on the sharp edge


of a chair, as a result of which her coccyx was injured. The
doctor, an experienced neurosurgeon, gave her an injection to
effect a phenol block of the lower sacral nerves. Although the
injection achieved the desired result of relieving the coccygeal
pain, it had most unfortunate consequences for the patient,
namely loss of control of the bladder and bowel, loss of sexual
feeling and loss of power in the right leg and foot. In an action
for damages based on negligence on the doctor's part for
failing to inform the patient of the dangers connected with a
phenol block, the court held that the evidence disclosed that
the likelihood of complications occurring was very unusual
and extremely uncommon. Even if the patient had indicated
that she would have refused to undergo the treatment had she
been warned of the incidence of risk, the possibility of such
complications was too remote to establish negligence on the
doaor's part for his failure to warn her of such risks. The
judge in the case made the following remarks: 'A doctor whose
advice is sought about an operation to which certain dangers
are attached - and there are dangers attached to most operations - is in a dilemma. If he fails to disclose the risks he may
render himself liable to an action for assault, whereas if he
discloses them he might well frighten the patient into not
having the operation when the doctor knows full well that it
would be in the patient's interest to have it. It may well be
that in certain circumstances a doctor is negligent if he fails to
warn a patient, and, if that is so, it seems to me in principle
that his conduct should be tested by the standard of the
reasonable doctor faced with the particular problem. In

reaching a conclusion a Court should be guided by medical


opinion as to what a reasonable doctor, having regard to all the
circumstances of the pamcular case, should or should not do.
'-The Court must, of c o u ~ ~make
e , up its own mind, but it will
be assisted in doing so by medical evidence.'

REFERENCES
1.
2.
3.
4.
5.

6.
7.
8.
9.

Correira o Baarind 1986(4) SA 60(Z) 63.

*are
v Minister of Health 1981(4) SA 472(Z).
S v Kramer l W ( 1 ) SA 887 (W).
Esterhuizen o Admuusnetor Transvaal 1957(3) SA 7 1 0 0 .
Lymbery v J&&
l925 AD 236.
S o Hanmann 1975(3) SA 532(C).
Innes CJ v Wessels JA in Van Wyk v Lewis 1924 AD 438.
Mtetwa v Administrator Natal 1989(3) SA m).
197q3) SA 226(C).

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