Medical Law & Case Studies in South Africa

INFORMED CONSENT IN SOUTH AFRICAN LEGISLATION AND THE HPCSA

2018-10-09T04:43:00.001-07:00

UNDERSTANDING INFORMED CONSENT

One of the first principles of medical law is that a competent adult patient must give consent to medical treatment. Simply touching a patient without their consent, however benevolently, is prima facie unlawful[1]. For consent to be valid, it must be given voluntarily by someone who has the capacity to act and whom understands what the treatment involves.

One of the central issues of informed consent to medical treatment is working out exactly how much information patients need to be properly or adequately informed. Not informing a patient in broad terms about the treatment they are about to receive could constitute assault and make you criminally liable. Not providing adequate informed consent might also expose you to an action for damages based on clinical negligence. The move away from the Bolam Test, which advocated that the standard set by reasonable medical opinion was the basis on which to test clinical negligence versus that of the reasonable patient test which assesses clinical negligence on the patients’ need to know, has placed a greater burden on health professionals to understand a patient’s needs and to act accordingly.

In the past medical professionals were under no duty at all to provide patients with information about their prognosis, or advantages and disadvantages of different treatments. The assumption was that a doctor would exercise her customary care and skill on deciding on the best course of action for a patient. The classic Hippocratic Oath assumes that treatment decisions are for the doctor alone “I swear by Apollo and Aesculapius that I will follow that system of regimen which according to my ability and judgment I consider for the benefit of my patients”

Until relatively recently, it would not have occurred to medical professionals that patients might be well placed to make their own choices about their medical care. It was thought that informing patients about a poor prognosis, possible side effects, or availability of alternative treatments would be likely to cause distress and confusion and might jeopardise the patient’s recovery.

It is trite that the doctor patient relationship involves a major imbalance of power, some of which stems from social norms. A patient expects to be disadvantaged because of their lack of knowledge, their lack of training and because we desperately want to believe our treating professional is all knowing and all powerful and therefor will make the correct diagnosis and provide a complete cure[2].

Emily Jackson argues that while it is true that there is significant information imbalance in the doctor patient relationship, it is important to also remember that medical professionals are not always all-knowing and all-powerful. In addition to the problem of false positives and false negatives and the inevitability of human error, medical knowledge itself is often uncertain and tentative. Telling patients, the truth might force doctors to explain what they do not know and what is uncertain[3]. That does not excuse us from telling patients the truth to empower them to make their own decisions.

CONFIDENTIALITY

Unlike patient autonomy, which is a relatively recent preoccupation of medical law and ethics, a doctor’s duty to respect her patients’ confidentiality has its origins in the first codes of medical ethics[4] and reserves unqualified protection in the modern version of the Hippocratic Oath “I will respect the secrets which are confined in me, even after the patient has died”.

Both deontological (duty-based) and teleological (consequentialist) reasoning can be used to justify the existence of a duty of confidence between patients and doctors. Deontological argument would be to emphasize the patient’s right to privacy and her interest in controlling access to what will be often sensitive and personal information. The consequential argument for respecting patient confidentiality is that high quality care depends upon a patient being honest with their doctors.

There are two reasons why it is important for doctors to respect their patient’s confidentiality. Firstly, information about a patient’s health is private, and she should have the right to control who has access to it. Secondly, without a guarantee of confidentiality, a patient might withhold information that is necessary to diagnose and treat her appropriately.

PROTECTION OF PERSONAL INFORMATION

Data protection is another important consideration and the Protection of Personal Information Act (POPIA)[5] has specific and stringent guidelines on protecting patient information and disclosure thereof to third parties.

Without express consent no information on a patient can be shared, bar specifically allowed for by law. Both the National Health Act (NHA)[6] and the Health Professions Council’s (HPCSA) Ethical Rules of Conduct: Informed Consent[7] stipulates when and how patient information may be distributed without consent by law. The legal duty of confidentiality is not absolute. The reality of modern medical treatment is that patient information will be shared among a team of health care professionals and is provided for in the NHA and the HPCSA Guidelines.

Rule 13 of the Ethical Rules of the HPCSA states that a practitioner may divulge information regarding a patient only if this is done:

· In terms of a Statutory provision,

· at the instruction of a court,

· in the public interest,

· with the express consent of the patient,

· with the written consent of a parent or guardian of a minor under the age of 12 years,

· in the case of a deceased patient with the written consent of the next of kin or the executor of the deceased’s estate.

Disclosures in the public interest would include but not be limited to situations where the patient or other persons would be prone to harm because of risk related contact.

Patients have a right to expect that information about them will be held in confidence by healthcare practitioners. Confidentiality is central to trust between practitioners and patients. Without assurances about confidentiality, patients may be reluctant to give practitioners the information they need to provide good care.

Guideline 4 of the HPCSA deals with retaining confidentiality. Where healthcare practitioners are asked to provide information about patients, they should seek the consent of patients to disclosure of information wherever possible, whether the patients can be identified from the disclosure or not.

Comprehensive information must be made available to patients about the potential for a breach of confidentiality with ICD10 coding. Anonymise data where unidentifiable data will serve the purpose must be utilised. Keep disclosures to the minimum necessary. Healthcare practitioners must always be prepared to justify their decisions in accordance with these guidelines.

Healthcare practitioners should make sure that patients are aware that personal information about them will be shared within the healthcare team - and patients must be told the reasons for this. It is particularly important to check that patients understand what will be disclosed if it is necessary to share personal information with anyone employed by another organisation or agency providing health or social care. Practitioners cannot treat patients safely, nor provide continuity of care, without having relevant information about the patient's condition and medical history.

In some circumstances where patients have consented to treatment, express consent (orally or in writing) is not usually needed before relevant personal information is shared to enable the treatment to be provided. For example, express consent is not needed before a general practitioner discloses relevant personal information to a medical secretary so that she can type a referral letter. In such circumstances, when the practitioner informs the patient that he or she is referring the patient to somebody else, the patient is assumed to have given implied consent to such disclosure being made to the secretary.

The healthcare practitioner must make sure that any recipient to whom personal information about patients is disclosed, understands that it is given to them in confidence, which they must respect. Anyone receiving personal information to provide care is bound by the legal duty of confidentiality - whether they have contractual or professional obligations to protect confidentiality.

Circumstances may arise where a patient cannot be informed about the sharing of information, for example because of a medical emergency. In these cases, the healthcare practitioner should disclose the relevant information promptly to those providing the patients' care and explain the situation to the patient after the emergency has passed.

The Constitution of the Republic of South Africa[8] Chapter 2 The Bill of Rights, which is the highest law in the land, protects a person’s Right to Human Dignity[9] and the Right to Privacy[10] and by extention the need for privacy and consent to medical procedures. The provisions of the Bill of Rights are codified in several statutes.

BIOETHICAL CONSIDERATIONS

Medical ethics has a long history unlike bioethics which is a more recent phenomenon. In the past conscientious medical professionals were trained to act paternalistically towards patients, to treat patients according to the medical professional’s judgment and not what would be best for the patient with little regard for each patient’s perspective or preference[11]. Problems arise due to intimate and central aspects of a patient’s life, such as disability, sexuality, psychological well-being, life style, self-image and bodily integrity, to name but a few. It is not within the medical professional’s scope to make choices that rest within a patient’s value system[12].

Medical paternalism is being challenged the world over as patient autonomy is on the rise, rejecting the medical professional’s superior medical knowledge and increasingly insisting on their own rights[13]. The culmination of this was the case of Montgomery v Lanarkshire Health Board[14] in which the following was stated

“it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services.”[15]

“The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices”.[16]

The HPCSA Guidelines reiterate that patients have a right to information about the healthcare services available to them, presented in a way that is easy to follow and use.

The National Health Act provides that healthcare providers, this includes healthcare practitioners, must inform patients of the following:

· The patient’s health status except in circumstances where there is substantial evidence that the disclosure of the patient’s health status would be contrary to the best interests of the patients;

· The range of diagnostic procedures and treatment options generally available to the patients;

· The benefits, risks costs and consequences generally associated with each option; and

· The patient’s right to refuse health services and explain the implications, risks and obligations of such refusal.

Patients also have a right to information about any condition or disease from which they are suffering. Such information should be presented in a manner easy to follow and use, and should include information about the diagnosis, prognosis, treatment options, outcomes of treatment, common and serious side-effects of treatment, the likely time frames of treatment, and the expected costs, where relevant.

Healthcare practitioners should always give patients basic information about the treatment they propose to provide but should respect the wishes of any patient who asks not to be given detailed information. The latter requests place a considerable onus upon health care providers because, without such information, patients cannot make proper choices as partners in the health care process.

DISCLOSURE OF INFORMATION OTHER THAN FOR TREATMENT OF INDIVIDUAL PATIENTS[17]

Information about patients is requested for a wide variety of purposes including education, research, monitoring and epidemiology, public health surveillance, clinical audit, administration and planning, insurance and employment. Healthcare practitioners have a duty to protect the privacy of patients and respect their autonomy.

Seeking consent of patients to disclosure is part of good communication between healthcare practitioners and patients and is an essential part of respect for the autonomy and privacy of patients.

The following principles should be applied:

· Healthcare practitioners must obtain express consent where patients may be personally affected by the disclosure, for example when disclosing personal information to a patient's employer or to a medical scheme for ICD-10 coding.

· When seeking express consent, health care practitioners must make sure that patients are given enough information on which to base their decision, the reasons for the disclosure and the likely consequences of the disclosure.

· Healthcare practitioners should also explain how much information will be disclosed and to whom it will be given.

· If the patient withholds consent the healthcare practitioner should first attempt to persuade the patient to consent.

· If the patient continues to refuse consent, or consent cannot be obtained, the consequences of disclosure and non-disclosure should be explained to the patient. Disclosures may be made only where they can be justified in the public interest.

Obtaining consent where the disclosure is made for research, educational, training, efficient administration of health services or clinical audit purposes has its own set of rules to consider. If identifiable data is to be used this can only be done with informed consent of the patient. The following guidelines are given;

· Use of identifiable patient data is permitted for purposes of the efficient administration of health services and for clinical audit, with the proviso that only information relevant to the purpose of disclosure is revealed, and disclosure is only made to personnel with a direct interest in that information.

· Where de-identified information can serve any of the above purposes, it is incumbent on the healthcare provider to de-identify these data as soon as possible before making use of the data.

· Where healthcare practitioners have control of personal information about patients, they must not allow anyone access to that information for study, research or medical audit unless the person obtaining access has been properly trained and authorised by a health establishment, a healthcare provider or comparable body and is subject to a duty of confidentiality in their employment or because of their registration with a statutory regulatory body.

Disclosures in the public interest:

· In cases where healthcare practitioners have considered all the available means of obtaining consent, but are satisfied that it is not practicable to do so, or that patients are not competent to give consent, or exceptionally, in cases where patients withhold consent, personal information may be disclosed in the public interest where the benefits to an individual or to society of the disclosure outweigh the public and the patient's interest in keeping the information confidential, (e.g. endangered third parties such as the spouse or partner of a patient who is HIV positive, who after counselling refuses to disclosure his or her status to such spouse or partner; or reporting a notifiable disease).

· In all such cases the healthcare practitioner must weigh the possible harm (both to the patient, and the overall trust between practitioners and patients) against the benefits that are likely to arise from the release of information.

· Examples of circumstances to protect the patient or other persons from death or serious harm, include, but are not limited to:

o Access to prophylactic treatment for a person who has had contact with an infectious disease, or

o An employee with a health condition which may render him or her unable to work safely posing a danger to co-workers or clients

o A driver of a vehicle who requires medication to control an illness that might impair his or her driving ability.

Professional organisations and Government regulatory bodies that monitor the public health or the safety of medicines or devices, as well as registries of notifiable conditions, rely on information from patients' records for their effectiveness in safeguarding public health. For example, the effectiveness of the system of notifiable conditions depends on information provided by clinicians.

Healthcare practitioners must co-operate by providing relevant information wherever possible. The notification of some communicable diseases is required by law and in other cases healthcare practitioners should provide information in anonymised form when that would be sufficient.

Where personal information is needed, healthcare practitioners should seek express consent before disclosing information, whenever that is practicable. For example, where patients are receiving treatment there will usually be an opportunity for a health care practitioner to discuss disclosure of information with them.

Personal information may sometimes be sought about patients with whom healthcare practitioners are not in regular contact. Practitioners should therefore make sure that patients are given information about the possible value of their data in protecting public health in the longer-term, at the initial consultation or at another suitable occasion when they attend a health establishment. It should be clear that they may object to disclosures at any point. The healthcare practitioner must record any objections so that patient’s wishes can be respected. In such cases, the practitioner may pass on anonymised information if asked to do so.

Where patients have not expressed an objection, healthcare practitioners should assess the likely benefit of the disclosure to the public and commitment to confidentiality of the organisation requesting the information. If there is little or no evident public benefit, they should not disclose information without the express consent of the patient.

Where it is not practicable to seek the consent of patients for disclosure of personal information for these purposes, or where patients are not competent to give consent, health care practitioners must consider whether the disclosures would be justified in the public interest, by weighing the benefits to public health of the disclosure against the possible detriment to the patient.

The automatic transfer of personal information to a registry, whether by electronic or other means, before informing the patient that information will be passed on, is unacceptable, save in the most exceptional circumstances. These would be where a court has already decided that there is such an overwhelming public interest in the disclosure of information to a registry that rights of patients to confidentiality are overridden; or where healthcare practitioners are willing and able to justify the disclosure, potentially before a court or to the HPCSA, on the same grounds.

Healthcare practitioners must obtain express consent from patients before publishing personal information about them in media to which the public has access, for example in journals or text books, whether the practitioners believe the patients can be identified or not. Express consent must, therefore, be sought to the publication of, for example case-histories about, or photographs of patients. Where health care practitioners wish to publish information about a patient who has died, they should consider the guidelines in this booklet before deciding whether to do so.

Situations arise where healthcare practitioners have contractual obligations to third parties, such as companies or organisations, as well as obligations to patients. Such situations occur, for example when practitioners:

· Provide occupational health services or medical care for employees of a company or organisation;

· Are employed by an organisation such as an insurance company;

· Work for an agency assessing claims for benefits;

· Provide medical care to patients and are subsequently asked to provide medical reports or information for third parties about them;

· Work as district medical officers or forensic pathologists;

· Work in the armed forces;

· or Work in correctional services.

If healthcare practitioners are asked to write a report about or examine a patient, or to disclose information about a patient from existing records for a third party to whom the practitioners have contractual obligations, they must:

· Be satisfied that the patient has been told at the earliest opportunity about the purpose of the examination or disclosure;

· the extent of the information to be disclosed;

· and the fact that relevant information cannot be concealed or withheld.

· Healthcare practitioners should show the form to the patient before they complete it to ensure that the patient understands the scope of the information requested;

· Obtain, or have seen, written consent to the disclosure from the patient or a person properly authorised to act on the patient's behalf.

· Disclose only information relevant to the request for disclosure.

· Include only information that they can substantiate, and ensure that it is presented in an unbiased manner;

Patients may wish to see reports written about them before they are disclosed, in all circumstances healthcare practitioners should check whether patients wish to see their reports - unless patients have clearly and specifically stated that they do not wish to do so.

Disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to risk or death or serious harm. Where third parties are exposed to a risk so serious that it outweighs the patient's right to confidentiality, healthcare practitioners should seek consent to disclosure where practicable. If it is not practicable, they should disclose information promptly to an appropriate person or authority. They should generally inform the patient before disclosing the information. Such circumstances may be:

· A person who is placing co-workers at risk because of illness or some other medical condition. If healthcare practitioners are in doubt about whether such disclosure is justified, they should consult an experienced colleague or seek advice from a professional organisation. The safety of persons must come first always;

· A patient who continues to drive, against medical advice, when unfit to do so: In such circumstances healthcare practitioners should consider disclosing the relevant information to the patient’s next-of-kin or the traffic authorities or police. Where such a patient is employed as a professional driver the employer should be informed.

· A disclosure that may assist in the prevention or detection of a serious crime: In this context, serious crimes, means crimes that will put someone at risk of death or serious harm, and will usually be crimes against the person, such as abuse of children.

· Healthcare practitioners may be required to disclose information to satisfy a specific statutory requirement, such as notification of a notifiable disease or suspected child or elder abuse.

· Healthcare practitioners must also disclose information if ordered to do so by a judge or presiding officer of a court. They should object to the judge or the presiding officer if attempts are made to compel them to disclose what appear to them to be irrelevant matters, for example matters relating to relatives or partners of the patient, who are not parties to the proceedings.

Healthcare practitioners should not disclose personal information to a third party such as a lawyer, police officer or officer of a court without the patient's express consent, except in the circumstances described above.

Healthcare practitioners may disclose personal information in response to an official request from a statutory regulatory body for any of the healthcare professions, where that body determines that this is necessary in the interests of justice and for the safety of other patients. Wherever practicable they should discuss this with the patient. There may be exceptional cases where, even though the patient objects, disclosure is justified.

In all cases, should healthcare practitioners decide to disclose confidential information they must be prepared to explain and justify their decisions.

THE NATIONAL HEALTH ACT

The National Health Act requires that healthcare providers (which includes health care practitioners) and health care establishments are responsible for personal information about their patients and must make sure that such information is effectively protected against improper disclosure always. For example, this means that employees such as clerks and receptionists must also be trained to respect the confidentiality of patients when dealing with personal information.

Many improper disclosures are unintentional. Healthcare practitioners should not discuss information about patients where they can be overheard or leave patients' records where they are vulnerable to disclosure, either on paper or electronically, where they can be seen by other patients, unauthorised healthcare personnel or the public. Healthcare practitioners should endeavour to ensure that their consultations with patients are private.

PATIENTS WHO LACK CAPACITY

Various aspects require consideration in instances where a patient lacks capacity to act. The Mental Health Care Act[18] makes provision for Respect, Human Dignity and Privacy for mental health care patients[19]. Every mental health user must be provided with care, treatment and rehabilitation services that improve the mental capacity of the user to develop to full potential and to facilitate his or her integration into community life[20]. Treatment must intrude as little as possible and must be in line with his or her mental health status[21]

Consent to care, treatment and rehabilitation services and admission to health establishments[22] is dealt with in Section (9) (1) A health care provider may provide care, treatment and rehabilitation services to or admit a mental health care user only if the user has consented to the care, treatment and rehabilitation services or to admission; authorised by a court order or a Review Board; or due to a mental illness in which the delay in providing care, treatment and rehabilitation services or admission may result in the- (I) death or irreversible harm to the health of the user; (ii) user inflicting serious harm to himself or others; or (iii) user causing serious damage to or loss of property.

Disclosure of information is dealt with by section 13 (1) A person or health establishment may not disclose any information which a mental health care user is entitled to keep confidential in terms of any other law. (2) Despite subsection (1); the head of the national department, a head of provincial department or the head of a health establishment concerned may disclose such information if failure to do so would seriously prejudice the health of the mental health care user or of other people. (3) A mental health care provider may temporarily deny mental health care users access to information contained in their health records if disclosure of that information is likely to; seriously prejudice the user; or cause the user to conduct himself or herself in a manner that may seriously prejudice him or her or the health of other people.

Problems may arise if healthcare practitioners consider that a patient is incapable of giving consent to treatment or disclosure because of immaturity, illness or mental incapacity[23]. If such patients ask them not to disclose information to a third party, the healthcare practitioners should try to persuade them to allow an appropriate person to be involved in the consultation.

If patients refuse to give consent and healthcare practitioners are convinced that it is essential and in the patient’s medical interests, they may disclose relevant information to an appropriate person or authority. In such cases the healthcare practitioner must tell the patient before disclosing any information and seek the consent of the person legally designated to give such consent in terms of the National Health Act.

The National Health Act provides that if no person has been mandated or legally appointed to give consent, then in the following order of precedence, a spouse or partner, parent, grandparent, adult child or adult brother or sister may give consent.

Rule 57 of the Supreme Court Rules sets out the procedure to be followed if a person does not have the capacity to act. The court is requested to address three aspects in its enquiry: (i) to declare the patient of unsound mind and incapable of managing his/her affairs; (ii) to appoint a curator ad litem; (iii) to appoint a curator bonis or curator personae or both. It is not essential that a person be declared mentally ill in terms of the Mental Health Care Act before a curator can be appointed to his estate.

A person that does not have the ability to make decisions over his own person, such as medical procedures and treatment, needs the assistance of a curator ad personae. The definition of a curator personae is the curator “over the person” of the patient and means the control over the patient's personal welfare. In the case of the application for curator personae the request is that the patient be declared unable to see to his personal needs. Only property of the patient is really the concern of the Master of the High Court due to his dealing with "estates" which are proprietary and not personal rights. A curator persona is appointed with far less formality. He/she is in practice responsible for all decisions where money is not involved.

The definition of “INCAPACITY” for legal purposes is function-based (i.e. ability to make specific decision at a specific point in time) and accommodates fluctuant and temporary incapacity in terms of cognitive functioning based on clinical evaluation. It is not equivalent to inability to communicate and does not regard illiteracy as inability to communicate or make decisions. It includes the safeguarding of interference in lives of eccentric persons. It is not based on a finding by a specific person or the court but by supporting clinical evidence of at least two medical professionals one of which should be an alienist (not having treated patient).

Best interests of the person are defined with reference to the least restrictive option, necessary only about individual circumstances and needs and an adult must be encouraged to participate. The person’s cultural environment, values and beliefs must be respected as far as is reasonable and practicable and past and present wishes and feelings need to be considered. Consideration must be given to the views of persons with an interest in the welfare of the adult or the proposed intervention.

[1] Medical Law: Text, Cases and Materials page 166

[2] Michael Jones – Informed Consent and Other Fairy Stories 1999 7 Medical Law Review 103-34, 129

[3] Medical Law: Text, Cases and Materials page 167

[4] The Hippocratic Oath – “whatever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets”

[5] No 4 of 2013

[6] No 61 of 2003

[7] Booklet 4

[8] Act 108 of 1998

[9] Section 11

[10] Section 14

[11] Susan Sherwin – A Relational Approach to Autonomy in Healthcare

[12] Susan Sherwin supra

[13] Medical Law – Text Cases and Materials page 4

[14] [2015] UKSC 11 On appeal from: [2013] CSIH 3; [2010] CSIH 104

[15] Para 75 page 24 supra

[16] Para 81 page 26 supra

[17] http://www.hpcsa.co.za/Uploads/editor/UserFiles/downloads/conduct_ethics/Booklet%205.pdf

[18] Act 17 of 2002

[19] Chapter III (8) (1)

[20] (8) (2) supra

[21] (8) (3) supra

[22] Section 9 of Act 17 of 2002 supra

[23] http://www.hpcsa.co.za/Uploads/editor/UserFiles/downloads/conduct_ethics/Booklet%205.pdf

MEDICAL NEGLIGENCE CLAIMS: THE NEGATIVES, POSSIBLE SOLUTIONS THERETO AND THE POSITIVES - WHAT IT MEANS FOR THE DEVELOPMENT OF OUR LAW AND HUMAN RIGHTS

2017-02-27T16:04:00.001-08:00

MEDICAL NEGLIGENCE CLAIMS: THE NEGATIVES, POSSIBLE SOLUTIONS THERETO AND THE POSITIVES - WHAT IT MEANS FOR THE DEVELOPMENT OF OUR LAW AND HUMAN RIGHTS

First Published on January 24, 2017 on LinkedIn

The negatives

In the last decade, medical negligence claims have absolutely skyrocketed. Not many reasons are proffered for this as it has been solely a blame game by the Department of Health ("DOH") and insurers such as the Medical Protection Society ("MPS") covering the claims of the private medical and allied health professions. Instead of finding a solution through training and better facilities as it relates to public health and fighting the spurious claims on the side of both public and private, a plaster is offered to treat a weeping sore so to speak.

MPS (and I'm sure others) keep increasing their premiums to the extent that many specialists are no longer prepared to continue practicing to foot the insurance bill and junior doctors choose less risky specialties to train in causing a brain drain in those very specialities. The blame for the enormous increase in claims in the private sector is, similarly to the public sector, put before the door of the attorneys who make it their business to seek out such claimants. The current Minister of Health, Dr Aaron Motsoaledi, ("the Minister") has been particularly scathing towards the medical negligence legal fraternity and many a journalist has jumped on the band wagon without properly considering the issue.

As in the private sector, the Minister tries to stem the flow of claims by simply putting a plaster on the festering sore in that talks are already afoot to limit claims (as with claims against the Road Accident Fund - "RAF") and provide an undertaking for medical expenses i.e paying for the treatment yourself before claiming the money back from what would have to be a dedicated claims department at the DOH. The impact of this, as in RAF claims, would be that those who cannot afford to pay first (e.g. indigent parents of children diagnosed with cerebral palsy after suffering from birth asphyxia) would be severely prejudiced as state health facilities only provide the most basic treatment for these kids (especially in poor areas), the parents often having to travel some distance to get to a treating facility and a family member giving up their own employment to act as caregiver. The child's chance of making a meaningful contribution to society through continuous treatment and skills training is forever lost.

Is there a solution?

So, how do to we treat the avalanche of claims? The DOH firstly would have to admit that their services to the public at large fall well short of a reasonable standard of care. (Please note that there are dedicated and hardworking medical personnel all over the health industry and their efforts should not be overlooked). Hospital buildings, equipment and ambulance services are either in a state of disrepair, non-existent or stuck with some committee or department that needs to make a decision. Medical personnel are in short supply and the predicted shortage in certain areas of expertise would have an impact on both the public and private sectors. An urgent need exists to involve the private sector in public health services in joint partnerships to assist in the overflow of patients and in particular in specialised fields. This would be especially helpful in the smaller communities. The establishment of non-profit organisations that can place medical personnel from across the world (in a GAP year) in mobile treatment units can also be explored. Last mentioned has been successful in the wild life industry in particular. The fact that medicine requires specialised skill cannot be ignored but it should not be impossible to extend such working visitors visas to doctors, nurses and the like.

One solution proffered to the private sector is to fight the ambulance chasers with all the might of the law in instances where there is no or little merit in the claim. Too many matters are settled that genuinely had a chance of success in a court of law. One just has to request statistics from insurers on how many matters are settled and how many proceed to trial to realise that the scales weigh heavily in favour of settlement. This has three negative outcomes, the lawyers become more motivated to institute action as they almost always get paid their fee up to 25% of the capital amount paid (see the Contingency Fee Act 66 of 1997 - "The Act")) at no or very little risk to themselves. Unscrupulous medical professionals become hired guns and the medical fraternity lose faith in the legal system and their own ability to perform up to standard affecting morale and by extension productivity and performance.

Defending worthwhile cases would not prevent the institution of litigation at the outset but would curb pay outs to non-deserving claimants and slowly but surely the legal fraternity would stop fighting claims with no or little merit as they stand to make substantial losses due to the capital input required to fight a medical negligence claim at their own cost (see The Act) thereby reducing the number of claims and the negative consequences thereof.

The second option, and probably the best option for both public and private, would be to ensure that the medical doctors and the medical facility subject all legal action to mandatory mediation prior to the matter proceeding to trial. The pre-trial courts already in place in all courts in RSA can simply refuse parties certification for trial (See Practice Directives available on https://johannesburgbar.co.za/ in re: certification) if meaningful mediation was not undertaken. The emphasis is important as matrimonial mediation has been failing divorcees for many years due to a lack of understanding of what mediation should be i.e guidance and not decision making for the parties and a general misunderstanding from both the public and the legal fraternity on what mediation is.

Legal costs would be substantially reduced and matters can be finalised much sooner if one considers that new trial dates are already being allocated into the end of 2018 and beyond in most divisions. The presence of legal representatives and experts should be encouraged due to the complexities of medical negligence disputes and the disparity in power between doctor/hospital and patient with their role reduced to giving guidance rather than fighting the fight for the patient as the decision to settle remains that of the parties and can't be forced upon them. Last mentioned would still be cheaper than full blown litigation. The very important underlying maxim of total confidentiality in mediation encourages honesty between the parties as nothing said in mediation (bar the final settlement agreement) can be used in a court of law.

The positives

It would be impossible to find something positive in this one would think, but that would be incorrect. The law is and always would be the tool to apply checks and balances and medical negligence litigation should certainly force the DOH to take a hard look at the manner in which their institutions are run, find inventive ways in which to solve their staffing, space and equipment problems so as to ensure that the poor in this country has adequate health care, a basic human right underlying all other human rights as it is a necessity for a life itself (See section 27 (1)(a & b) of the South African Constitution). Currently the-plaster-over-oozing-sore view of medical negligence litigation is hampering this positive and one could only hope that the DOH realises that they shouldn't blame the lawyers for what is clearly a disaster in public health care. One just has to look at the number of legitimate birth asphyxia matters in court on a daily basis and increasing exponentially to know that there is something seriously wrong in perinatal and neonatal care in the public sector at an estimated cost of R20 million per claim.

Placing the blame at the foot of the lawyers also loses sight of the right of the patient to defend those rights, another right protected by the South African Constitution (Access to Courts - Section 34) and to do so with legal representation. This is equally true for both public and private sector disputes, although privately insured doctors and hospitals may have those rights curtailed by an overzealous insurance provider with settlement fever.

Over-compensation in patient treatment is seen as a negative by the medical aid schemes in that it is one of the many things that is blamed for the higher than average medical inflation. I for one would prefer my doctor to rather overcompensate than just doing the basics to appease the medical aids and I would like to surmise that this very "problem" has probably led to many a diagnosis that may have been missed at first bat.

Medical Negligence litigation has contributed hugely in the last decade but in particular in the last year, to the development of the common law. Age old cases on the duty of care have been revisited and refreshed. The Consumer Protection Act (68 of 2008) (See my article in De Rebus June 2012 p22-25 "The Law of Contract, the Consumer Protection Act and medical malpractice law") has added a whole new dimension (albeit seriously underutilised in my opinion) to services and goods provided by medical health professionals and the like. The South African Constitution recently found in favour of cases arguing the provisions of the Prescription Act (68 of 1969) as it related to when knowledge is acquired of harm done and then there is now a veritable smorgasbord of case law on medical negligence that was once in short supply.

As such, from a legal standpoint, we should thank the personal injury practitioners for developing our law and protecting human rights, both from a plaintiff and defendant perspective and the public and private sectors should join hands to seek a solution to the problem that lies at the heart of the very healthcare provided.

2017-02-27T15:38:00.002-08:00

CONTINGENCY DEDUCTIONS IN ACTUARIAL CALCULATIONS 101

INTRODUCTION

On 1 August 2008, the new RAF Act changed the lives of many people in that there was no longer an automatic right to general damages for inter alia pain and suffering. This meant that clients whom had suffered a loss of earning capacity was suddenly left without compensation and many a matter was settled on the basis that the plaintiff was only entitled to an undertaking. The right to an undertaking and the admission that an undertaking is needed for future medical expenses can be a basis for an argument on loss of earning capacity as the plaintiff wouldn’t need cover for future medical expenses if there was nothing wrong with her and would further need time off work to attend to such treatment which would translate into a loss of earning capacity.

The traditional view of damages is that you cannot separate the different heads of damages in such a manner as to decide one before the other, this essentially comes from the point of view that a loss of earning capacity should be bundled under general damages. The now infamous Deysel v RAF matter (unreported Bizos AJ) was and still is widely used in SGHC by RAF counsel (and some Judges) to force a postponement until general damages is decided (where these have been referred to the HPCSA) or to state that a loss of earning capacity should only increase the amount of general damages as the plaintiff will ‘struggle’ to do their job and an actual loss of earnings cannot be demonstrated.

It is however not that simple, a loss of earning capacity goes to the heart of the client’s ability to earn a living and in particular to the possibility of future loss of earnings due to time of work for treatment or losing out on a promotion. As much of last mentioned is often a possibility as opposed to a probability which would show a direct loss based on the evidence at hand, it cannot be ignored for various reasons. The court in Southern Insurance v Bailey (SCA) clearly stated that one cannot adopt a non-possumus attitude to loss simply because it cannot be quantified in general terms. A loss of earning capacity can also not be ignored because of the maxim of the ‘once and for all rule’ which does not allow a claimant to return for another slice of damages at a later stage.

This means that any possibility of a future loss must be taken into consideration over and above normal contingencies which an actuary would already be applying. These ordinary contingencies would not be visible in a calculation to an untrained eye as it is normally done by means of various algorithms that are automatically applied. Robert Koch in his book, The Quantum of Damages has various tables for longevity which are implemented automatically by actuaries based on the earnings and economic circumstances as well as for instance HIV status of a plaintiff (last mentioned can be more complicated though as the CD 4 count is taken into consideration) Koch also refers to normal contingencies being 5% (but for the accident on past loss) and 15% (now that the accident has happened on future loss). There is a myriad of case law on this aspect and in particular an old argument that a ½% per year should be allowed till date of retirement from date of calculation as a normal contingency) There is also a school of thought that feels that there should be no pre-morbid deduction of 5% (I’m one of them) as there is no possibility of anything unforeseen happening as it’s already in the past.

The above 5% and 15% is deducted from what the plaintiff would have earned if the accident did not happen for future possibilities such as death. The deduction is found in the first column of an actuarial calculation (depending on the actuary’s style) and is referred to as a negative contingency as it reduces your loss (explained below in more detail). The amount to be deducted from the second column is called a positive contingency as it increases the loss and this deduction is based on possibilities for a future loss of earning capacity including the prospect of early retirement. If one starts on Koch’s 15% as a normal contingency it would mean that one can never go lower than 15% on the positive deduction as that would mean that the plaintiff now has a better chance of survival than before the accident. One also cannot simply manipulate the contingencies where the plaintiff’s earnings is subject to the RAF CAP (Sweatman v RAF – SCA) without getting another calculation done unless the plaintiff falls far below the CAP. Simply lobbing off an amount from the total and calling it a contingency is also incorrect as the loss lies in the percentage difference between the negative and positive contingency and as such without a negative contingency being applied a positive contingency would skew the loss in favour of the defendant (see below).

A negative contingency can also be applied if the plaintiff is placed in a very high pre-earnings scenario, but for the accident, which scenario is for the most part only a possibility.

THE CALCULATION SIMPLIFIED

The easiest way to look at how the loss is calculated is to use an amount of R1000 in earnings for a client that could show no probability of loss, only a possibility and as such his earnings is calculated as also being a R1000 after the accident in question. We will ignore past loss.

BUT FOR THE ACCIDENT NOW THAT

Earnings R1000 R1000

Less Contingency 15% 25%

Equals R150 R250

Loss R850 minus R750 = R100

Without contingencies, no loss.

The calculation of the loss is based on what is referred to as a contingency differential i.e. the 10% difference between the 15% and the 25% and because the positive contingency is higher than the negative contingency you show a loss.

If the scenario was the other way around, say for instance where you reflect a loss based on a loss of a promotion (which was only ever a possibility) you can apply a negative contingency which would looks as follows.

BUT FOR THE ACCIDENT NOW THAT

Earnings R10 000 R1000

Less Contingency 20% 25%

Equals R 2 000 R 250

Loss R8 000 minus R 750 = R7 250

Without contingencies, the loss would be R 9000, hence the application of the higher but for contingency being referred to as a negative contingency as stated before, it reduces the loss.

CONCLUSION

An actuarial calculation can be manipulated in several different ways to ensure that client has the best and most reasonable outcome in any claim for damages. Aspects such as retirement age as well as the date on which a client will stop getting salary increases and the discount rate applied for capitalisation can all have an impact on the loss and will explain why on the same facts two actuaries with different instructions can come to a completely different conclusion.

2014-06-01T08:00:00.000-07:00

Appointing a curator ad litem – are we applying the law correctly?

DE REBUS June 1st, 2014

By Maud Letzler and Viviana Vergano

The appointment of curators is a daily occurrence in our courts and in particular in the North and South Gauteng High Courts where the proliferation of personal injury matters has made such appointments common place. On the other hand, in matrimonial matters it is not utilised enough to safeguard the interests of minor children, where such interests form the very dispute between parents (by inference we refer to any lawful guardian as well) and require that an independent person takes cognisance of the child’s wishes, which interests, however, may not always be sufficiently protected by an overworked family advocate.

A short summary of the different bases for the appointment of curators is detailed herein, together with an exposition of the law regulating the appointment of curators and the duties and responsibilities that rest on such curators by law or by inference.

The law

A number of writers who contributed to the Roman Dutch law from which curators originate are referred to in Ex Parte Hill 1970 (3) 411 (SA) by Van Winsen J such as Kaser Roman Private Law (Dannenburg’s trans) 2nd ed para 64 (iii); Gaius Elements of Roman Law (Poste’s trans) 3rd ed p 138; and de Groot Introduction 1.11.2.

The common law relating to curators was preserved by the Mental Disorders Act 38 of 1916 repealed twice and currently regulated by the Administration of Estates Act 66 of 1965. The latter Act of 1965, makes provision for the appointment of various types of curators inter alia a curator ad litem and would not be repeated here.

Rule 57 of the Uniform Rules of Court, deals specifically with the inherent power of the court to appoint curators and in particular, curators to people who are mentally incapacitated. A person who is not mentally incapacitated but still personally or through an interested party, feels the need to appoint a curator to manage his or her property may be declared a prodigal and a curator bonis may be appointed without the need for a curator ad litem. This is particularly useful in awards for damages where the amount awarded needs to be protected but the plaintiff is not of unsound mind (see Delius v Delius 1960 1 SA 270 (N)).

It may be useful in preparation for your duties as curator or in drafting such an application to have sight of not only Erasmus Superior Court Practice Uniform Rule 57 but also of LAWSA vol 3 ‘Civil Procedure’ Para 425 to 431; AC Cillier, C Loots and HC Nel Herbstein and van Winsen: The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa 5th ed (Cape Town: Juta) p 164 – 174 and Chapter 48, which deals with this in detail; and the Administration of Estates Act and the Mental Health Act supra.

The duties

According to r 57 (5) ‘Upon his appointment the curator ad litem … shall without delay interview the patient, and shall also inform him of the purpose and nature of the application. … He shall further make such inquiries as the case appears to require and thereafter prepare and file with the registrar his report on the matter to the court, at the same time furnishing the applicant with a copy thereof.’

The Gauteng High Courts very seldom implement the procedure set out in r 57 (5) and it is maybe time that the courts crack down on the current and very common practice of appointing curators on the day of trial. A recent unreported judgment of Bertelsman J in the matter of Modiba obo Ruca v Road Accident Fund (GP) (unreported case no 73012/13, 27-1-2014) questions this practice by stating at para 1 ‘By avoiding or circumventing the provisions of the Rule and the common law principles established over decades, these matters are prevented from coming to the Master’s attention, avoiding the latter’s supervision and scrutiny while the potential need to appoint a curator bonis or curator bonis et personae to the individual concerned is not considered properly or at all.’

It is noteworthy to reflect on the commentary set out in Erasmus (B1-395), relating to the importance of the duties of a curator and the fact that because the court relies heavily on the curator’s report that he or she is to fulfil his or her duties with efficiency and fully with great responsibility, and in order for the court to exercise a proper discretion in a particular case. It is the duty of the curator ad litem, by making such inquiries as he deems necessary, to see that the existence and extent of the patient’s mental illness are properly investigated, and to ensure that the proprietary and other interests of the patient are adequately protected by the terms of the order made by the court.

The courts have mentioned that the curator ad litem may in certain circumstances function rather as an amicus curiae, and his or her primary function in the present context is to ensure that the proprietary and other interests of the patient are adequately protected (Steyn v Steyn 1972 (4) SA 151 (NC) at 151).

According to F du Bois (ed) Wille’s Principles of South African Law 9th ed (Cape Town: Juta), a curator ad litem has no power over the person or property of the person whom he or she is appointed to represent, and his or her authority extends no further than the proceedings to which his or her appointment relates. He or she is responsible only to the court for the proper discharge of his or her functions. See also Ex Parte Campher 1951 (3) SA 248 (C).

In the matter of Ex Parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N), it was said that ‘… the duties of a curator ad litem are clearly not to be confined to, or delayed until, an appearance in Court; the curator must investigate the relevant facts and circumstances and apply his judgment extra forensically in deciding what attitude he should adopt and the precise contents of his report to the Court.’ The Sugar Millers case states further that ‘[C]urators must make such investigations and judgments in regard to the appointment of curatores bonis in terms of the Uniform Rules of Court.’

In the matter of Ex Parte Campher above at p 252, the following was said: ‘The curator will ordinarily appear on the return day of the rule if he be counsel: in the case of other curators, appearance in person, or a written communication addressed to the Registrar, will, in straightforward cases, normally suffice.’ Furthermore, the above case sets out that circumstances can easily be envisaged where the services of independent experts may also be required in addition to the services of an independent attorney. Thus, for example, it may be necessary to test an essential link in the claim that comprises documentary evidence of doubtful authenticity requiring the assistance of an expert in questioned documents. In such circumstances the curator ad litem would normally make a request to the applicant for such assistance and the applicant would, in the majority of cases, no doubt afford all reasonable assistance. In case of a difference of opinion regarding the necessity of such assistance, a curator ad litem would be at liberty to apply to the court for directions in regard to such matter.

In the Campher matter, it was also noted by Harcourt J that an over-enthusiastic curator ad litem may well incur criticism. The judge regarded this as an occupational hazard of curator’s ad litem who, being responsible persons discharging important functions to assist the court, are expected to act responsibly.

Furthermore, with regard the question as to whether investigations that were made, well before a court appearance would suffer from the demerit of not being on oath, if a curator ad litem were to have grounds to believe that this imperfection in his ability to investigate might prejudice his ability to assist the court, he should report this belief to the court which would, if convinced of the disadvantage, no doubt either send the matter to trial or direct that oral testimony should be offered. It is the duty of the curator ad litem to see that the existence and extent of the prospective defendant’s mental illness are properly investigated at the trial and – assuming that the plaintiff succeeds on the merits – to do his best to ensure that the proprietary, and other incidental, interests of the patient are adequately protected by the terms of the order made by the court. Such functions can only be discharged by responsible persons.

In the case of Du Plessis NO V Strauss 1988 (2) SA 105 (A), the court commented on the conduct of the curator ad litem, the curator’s attitude was that arguments against the appeal had been fully advanced by the respondent and that the Appellate Division would benefit if he adopted a ‘more objective’ approach. Van Heerden JA held that this attitude was clearly in conflict with the duties of the curator ad litem, and it was furthermore expected of him to advance all possible arguments in favour of his charges.

In Dickinson v Dickinson 1981 (3) SA 856 (W) at 857G, it was stated that the only duty that a curator ad litem has, after his or her appointment, is to inform himself or herself properly of the patient’s condition. He or she is clothed with no powers whatever to represent him or her on any other basis and in any event he or she has no power to enter into contracts on his or her behalf. He or she can only represent him or her during such proceedings.

In the matter of Ex Parte Comins 1951 (2) SA 249 (W), which application for the appointment of a curator bonis was heard before Murray J, the court was asked to stabilise the practice regarding the admissibility in such applications of evidence by way of affidavit without the necessity of viva voce evidence in open court to establish the inability of the person in question to manage his or her own affairs. In the great majority of cases full evidence on this point has already been given on affidavit by the medical practitioners at the stage when the appointment of the curator ad litem is asked for his or her opinion. In open court, they merely repeat such evidence and there is, normally, no necessity for the court or the curator ad litem to examine or cross-examine these medical practitioners further. In fact the curator ad litem, in the proper discharge of his duty, has previously interrogated these medical practitioners for the purpose of his report to the court.

Lastly in a more recent judgment by Van Zyl J, in the matter of Ex parte: Futter, In re: Walter v Road Accident Fund and Another (ECP) (unreported case no 2422/2008, 17-8-2012) it was stated by Van Zyl J that: ‘The person appointed as curator ad litem as envisaged in Rule 57, is not appointed to simply act as amicus curiae to assist the court in determining whether the patient is capable or incapable of managing his own affairs, and whether the proposed curator bonis is a fit and proper person to administer the estate of the patient. He is appointed as curator ad litem to the patient, to act on his [or her] behalf and to represent his [or her] interests in the litigation pertaining to the appointment of a curator bonis to manage his [or her] estate. The appointment itself reflects negatively on the status of the patient and his [or her] legal capacity, not only to manage his own affairs, but also to litigate on his own’ (para 19).

Conclusion

It is above all clear that the best interest of the patient, minor or prodigal is what should be uppermost in the mind of the curators and it is doubtful that a curator appointed on the day of a trial could execute his or her function properly. Such matters should be postponed to allow the curator to properly investigate the matter. It is also doubtful that the appointment of a curator ad litem without the appointment of a curator bonis and/or curator ad personae would stand the scrutiny of the court in future in light of the Modiba judgement. In the cases of prodigals, it may be prudent to appoint a curator bonis as well as a trustee if they cannot function as one and the same, as the appointment will ensure that the scrutiny of the Master safeguards their interests.

A curator should furthermore never be a creature of instructions but should always remain independent and fiercely protective of their client’s rights without fear of reprisal. The position is after all based on that of great trust

Maud Letzler LLB (Unisa) and Viviana Vergano LLM (Banking Law) (UJ) are advocates in Johannesburg.

This article was first published in De Rebus in 2014 (June) DR 30.

Actuarial calculations

2014-01-06T03:29:00.000-08:00

How to instruct your actuary and read your actuarial calculation - The most important consideration when instructing your actuary is not to simply forward the industrial psychologists report but to give due consideration to the past and future loss of income you want to claim for on behalf of your client.

The most important first step is getting the remuneration correct. A self employed individual would need to provide you with bank statements, tax returns and any info on additional part time income they might earn, last mentioned is very important as this is the first income that goes out the window when plaintiffs are injured. As per self employed individuals see my previous post for some advice in this regard

Make sure that you have a list of all benefits that a plaintiff receives from the company if this is not in his employment contract or reflected on his payslip, e.g. a paid lunch, transport or any daily cash allowance. Domestic workers and gardeners are a good example of this. Taxi drivers are a tricky one, make sure you contact the taxi association to determine the name and number of the owner of the taxi so as to enable you to confirm income and terms and conditions as taxi drivers actually pay the owner of the taxi and keep the rest for themselves, as such their income may fluctuate and not be in line with Patterson levels.

Make sure to inform the actuary if you want to use a different basis for calculation in terms of promotional prospects or future salary increases as per the industrial psychologists report. Even without an IP report you can adequately brief a actuary in an MVA matter but briefing an actuary in a medical negligence claim would require the quantification of all hospital and medical expenses and for that you will need to present the actuary with ALL your expert reports so as to allow him to do a schedule to the calculations.

Remember to tell your actuary which contingencies you would like him to apply and please consider these carefully and discuss them with your counsel as they can add or subtract to your calculation exponentially. If you are appearing for the defendant make sure you do not double discount. Look at employability versus a large contingency deduction and see which option would be the best.

Advise your actuary on any accelerated benefits received and/or disability benefits and remember not to include sympathetic employment as an income. Read your case law about this.

How do you read a calculation? First off you need to check that the info you provided the actuary with is in actual fact correct i.e. is all the factual information used by the actuary correct as provided by you.

Check the inflation rates and the discount rates used by the actuary and see if you are happy with them or if they differ substantially from the other sides calculation and ask why those were used. Make sure you are satisfied with the life tables used and that you find them applicable to your client as these may be very important not so much in MVA matters as in Med Neg matters where benefits are lifelong.

The calculation would be divided into various columns and tables. One for past loss before and after accident and up to date of trial. Then one for prospective earnings before and after accident. It is often referred to in case law as the "now then" and "but for" scenarios. Contingencies in these two scenarios differ markedly and you should know the difference between the two. Contingencies on the past loss should also differ on the but for and now that scenarios and should not be a globular deduction.

Contingencies can be deducted at the end of the matter as a lump sum but make sure you take the amount pre-contingencies on your calculation otherwise you will double discount the plaintiff. Again make sure that the discount is fair and reasonable taking into consideration all the relevant case law.

Actuarial calculations are not complicated but very important, don't ignore them and learn to use them in your favour.

Capacity v Productivity - An application to proceed to trial in personal injury matters?

2014-01-03T03:05:00.001-08:00

PETER WILLIAM AGNEW v C.E BARTLETT [2009] VCC 0110

I came across a matter from Australia, Victoria whilst doing capacity research and found it interesting to note that in terms of the Australian Accident Compensation Act a plaintiff shall not claim compensation for personal injury for pain and suffering and/or loss of earning capacity if the injury is not "very considerable" It further needs to be permanent and likely to persists in the foreseeable future and will last and not mend or repair or at least not to any significant extent. The plaintiff has to further establish a loss of earning capacity of more than 40% by comparing after injury earning with before scenario after suitable training (being hardening or retraining).

It is only once this has been established on an application procedure that the plaintiff is then allowed to proceed to trial to proof the quantum. It seems to be a very good way in which to reduce legal costs overall and to weed out claims early on that are not worth the disbursements that would be expended on it. It would certainly free up time in the courts.

What I found interesting though was the difference that is clearly present in that of a loss of productivity versus a loss of earning capacity which is often used interchangeably in our case law and day to day dealings with each other in negotiations. I have always maintained that their is a difference between not having the capacity to do the work and not being productive to do the work and feels that their should be such a distinction and that a lack of capacity should translate into compensation which could conveniently be correlated with a contingency deduction that should be in line with the amount of loss of capacity rather than looking at a pure economic loss in terms of hours in the day or increasing the general damages as per the much reviled Deysel case.

The Collins Thesaurus Dictionary definition of productivity is "output" but also productions, capacity, work rate, yield and efficiency whereas the definition for capacity is "ability" and also gift, genius, capability, aptitude, aptness, competence and competency. If one looks at it in terms of this meaning then my interpretation would be that productivity requires expending energy (of a physical nature) so to speak whereas capacity requires capability (both physical and psychological).

As such you would have a lack of productivity if it requires more energy to do it but a lack of capacity if you simply do not have the ability to do it. Practically this would mean that in the more common injuries, say a rotator cuff injury, that if a plaintiff is simply slower at doing something and has to expend more energy to do it but you can still perform the function, I would suggest a lack of productivity but if you are not capable of lifting your arm above your head 70 times a day you no longer have the capacity to do so and the question is then if you can retrain yourself to do so in future in terms of the Australian model.

This seems a more fair and reasonable way in determining a loss in personal injury matters if one keeps in mind the "once and for all" rule as the long term consequences of not having the capacity to do something would certainly have an impact on one's life. It would be worthwhile arguing and may translate into a fairer way to estimate compensation than on pure pecuniary loss alone and would take the guess work out of matters (Bailey) if a particular percentage loss of capacity is determined.

The AMA guidelines may be a good starting point, if a plaintiff has a certain percentage of whole person impairment and this translates directly into a physical impediment in his field of work and as such his capacity to perform such work then this may be a useful tool. An 8% WPI on a arm injury may indicate a 8% loss of capacity to use that arm in future and as such and 8% loss of ability to perform the work translating into an 8% pecuniary loss but alas that would be too easy and would not take into consideration the view of many other experts on the matter. The WPI of a person is however a good starting point to determine capacity.

The distinction between capacity and productivity should be considered and duly dealt with by our practitioners and our courts to ensure fair and reasonable compensation for personal injury victims and it would be worthwhile to get experts to utilise the guidelines for a determination on all personal injury matters so as to give defendants a clear picture of the plaintiff's loss.

QUANTIFICATION OF LOSS OF INCOME IN SELF EMPLOYED INDIVIDUALS

2014-01-01T22:44:00.000-08:00

QUANTIFICATION OF LOSS OF INCOME IN SELF EMPLOYED INDIVIDUALS

As we calculate loss for individuals on a payslip for the most part, bank statements and further collateral information, we should not loose sight of the fact that self employed individuals may in their tax returns list legitimate company expenses but the benefits that the individual derive from his business would include such company expenses. Trying to predict the business growth of an individual in a self employed capacity versus that of a salaried employee whose wages are stable and have a clear history, for the most part, statistically in any event, is in itself problematic.

To compensate the individual adequately the fraction of individual or family benefit that the plaintiff derived from such a benefit should be taken into consideration when estimations on income is done.

A benefit to the individual and family could be salaries paid to the spouse and children and thereby inflating the tax burden of a company and reducing the income of the individual which may be real or may be at a level much higher than the norm. It is advisable to compare this income with that of the standard levels of income as determined by PE Corporate services alternatively by the Patterson levels commonly used and any unnaturally inflated income should be attributed to the individual (plaintiff)

Many types of such business expenses that add benefit exist. A good example is a business premises that is also the home of the business owner. The business expenses deducted for power, bond, telephone etc. may all directly benefit the home owner and would dissipate or disappear should the business fail or no longer perform at sub optimum level after the incident.

The amount of benefit that an individual derives from after tax benefits should also be taken into consideration for e.g. the purchase of a business computer that is taxable but used for personal use as well. A telephone or Wi Fi service to name but a few and not to mention the company car. Depreciation of assets on a balance sheet can also proof to be problematic as the real market value may differ.

It also needs to be taken into consideration that an individual who can no longer perform the work of a sole proprietor may be capable of selling some of the assets of the business after the incident and derive a interest bearing benefit from it. This point of view would certainly have to be argued as the plaintiff is unlikely to accept such a scenario in settlement negotiations.

In estimating the individual business owners profits and as such his income it may be easier to calculate the loss by placing the individual in a position of another salaried employee doing the same job and deriving the same benefits rather than trying to decipher complicated accounting statements. This can however be problematic in instances where the individual is reliant on his goodwill or the special business skill he may have derive from his years of being in the industry and a replacement may not be possible.

All in all, determining earning capacity for a self employed individual needs to take place only after careful consultation with the client, forensic auditor and the actuary.

economica - Issues in Loss of income calculations for self employed individuals by Scott Beesley

Elective surgery and "informed consent"

2013-11-25T11:33:00.000-08:00

A contradiction in terms one would say, right? As lawyers we look at a lack of informed consent as a basis for negligence. In cases where the patient approaches the medical practitioner for an elective procedure this becomes obscured. Informed consent essentially in laymen's terms is an agreement between a doctor and a patient as what harm would be allowed and will be acceptable. Should a doctor neglect to inform the patient of all the harm that may befall them then the patient may feel that they lacked informed consent. This in itself is an anomaly as the human body is too dynamic to predict all the dangers but that's a topic for another time.

Why is it then that in an elective procedure, and I have a natural vaginal delivery in mind here, are the patient not informed of the harm that may befall them in their choice of delivery? Statistically the dangers involved in both procedures are equal, not similar but equal. Having been through both an elective natural birth and an elective C-section, it astounds me that I was not informed of the dangers involved in particularly the natural birth such as episiotomies, fentonplasty, cystocoele, rectoceles, anal sphincter repairs, fistulas and many many more side effects that may be experienced by a woman during a "natural" vaginal delivery. Have any of you ever been told that? Did your partner know, where you informed of the risks of a C-section versus a vaginal delivery and told to think about it and decide which is best for you? I bet you weren't.

So now my question is if you undergo an elective procedure, can we argue that there is an ethical obligation on the doctor to inform you, irrespective of it being your choice, of the dangers you, and your child, may face? (I still have to encounter a matter in which the health of a child was compromised during a C-section). In my opinion the answer has to be yes. If you approach a financial advisor, a lawyer or any other professional for advice, they will discourage you from going in a direction which may loose you money or cost you a court battle, as such I would argue that you should request a detailed Q & A session with your doctor before any surgery.

Would that prevent things from going wrong? No, but at least you will be prepared.

Genetic Testing - A moral dilemma or an insurance nightmare?

2013-10-12T01:46:00.001-07:00

Norton Rose Fulbright - Medical Law Seminar - 2013

I attended the above seminar this week and found the talk by Sandra Sithole (a director at Norton Rose Fulbright) food for thought.

The issue we are faced with is the possibility that should we undergo genetic testing for our own peace of mind then do we also have a responsibility to inform our insurer that we are at a greater risk for one or another medical ailment?

The issue of non-disclosure clearly becomes problematic especially in light of life insurance policies and income continuation benefits as it could be said that the client is no longer bona fide (as was the scenario with non disclosure in income tax returns) and clients could insure for what will now possibly become a bigger reality.

The question is, should one be entitled to keep this information to oneself in terms of Privacy Laws or can the insurance industry argue that this will be to the detriment of the healthy members? And as many such conditions are hereditary would the impact not spread far and wide for generations to come?

Maybe this would be a hurdle that we can overcome like we did for the HIV/Aids pandemic. If clients are forced by their insurer (and paid for by them) to undergo genetic testing, can one then not argue that you would be in a much better position to plan your insurance cover and in many instances a good case can then be made out for any elective surgery that a client may want to undergo to minimize the impact of genetics (as was recently seen with the much publicized Angelina Jolie surgery)

I see this as an opportunity for insurance companies to assist individuals to make their lives healthier and to provide a platform for argument that elective surgery which is still considered cosmetic, should be allowed into the fold of covered expenses.

Some basic form of genetic profiling is already allowed by taking a family history from a client as it relates to heart disease etc. Why can both client and insurer not benefit from such phenomenal strides in the medical fraternity?

The exclusion of elective surgery as it relates to corrective eye surgery by insurers has always baffled me. Why pay on a continued basis for glasses and contact lenses when your client can have corrective eye surgery and save in the long run? Many more examples of this wide interpretation of "cosmetic surgery" can be given.

A further possibility could be a reduction in the premiums of healthy individuals as they would no longer be judged statistically but rather on actual chances. The opportunity for a contingency reduction (or increase) may change the scales of balance where 99% percent of the healthy insured pay for 1% of the less healthy.

Would this make insurance unaffordable for the sickly or genetically predisposed? Yes maybe, but it could also save their lives and open the doors for prevention.

Prevention is still better than cure.

Poor prognosis of whiplash injuries

2012-09-20T02:33:00.001-07:00

As personal injury practitioners we often scoff at the thought of a whiplash injury being a serious injury that warrants our attention any more than as a mere nominal payment for General Damages if at all (MVA’s come to mind)

A Canadian study[1] found that socio-demographic factors associated with a longer recovery from whiplash include older age, female sex, having dependents and not being employed full time and that each factor decreases the rate of recovery by 14 to 16 per cent.

Factors related to the crash conditions indicate that being in a truck or bus, with a decrease of 52% in the rate of recovery, being a passenger in the vehicle (15%), colliding with a moving vehicle (16%), and a side or frontal collision (15%) all decrease the rate of recovery. One can assume that a falling lift, a tumble down the stairs or any other relevant injury may have the same consequences.

The study introduced a combined risk score that predicts longer recovery. In the subjects with these signs and symptoms, the median recovery time was 32 days and 12% of subjects had still not recovered after 6 months. The signs and symptoms that were found to be independently associated with a slower recovery from whiplash, besides female gender and older age, were neck pain on palpation; muscle pain; pain or numbness radiating from neck to arms , hands or shoulders; and headache. I would suggest that a predisposition to osteoporosis should also be taken into consideration.

Together, the presence of all these factors in females aged 60 predicted a median recovery time of 262 days, compared with 17 days for younger males aged 20 who do not have any of these factors.

In a different 15 year study of forty patients[2] with a whiplash injury, who had been reviewed previously 2 and 10 years after injury, were assessed again after a mean of 15.5 years by physical examination, pain and psychometric testing. Twenty-eight (70%) continued to complain of symptoms referable to the original accident. Neck pain was the commonest, but low-back pain was present in half. Women and older patients had a worse outcome. Radiating pain was more common in those with severe symptoms. Evidence of psychological disturbance was seen in 52% of patients with symptoms. Between 10 and 15 years after the accident 18% of the patients had improved whereas 28% had deteriorated.

In another study, Frequency, Timing, and Course of Depressive Symptomatology after Whiplash, the assessment of[3] 5,211 subjects reported no pre-injury mental health problems, 42.3% (95% confidence interval, 40.9–43.6) developed depressive symptoms within 6 weeks of the injury, with subsequent onset in 17.8% (95% confidence interval, 16.5–19.2). Depressive symptoms were recurrent or persistent in 37.6% of those with early post-injury onset. Pre-injury mental health problems increased the risk of later onset depressive symptoms and of a recurrent or persistent course of early onset depressive symptoms.

It was concluded from this study that depressive symptomatology after whiplash is common, occurs early after the injury, and is often persistent or recurrent. This suggests that, like neck pain and headache, depressed symptomatology is part of the cluster of acute whiplash symptoms and that clinicians should be aware of both physical and psychological injuries after traffic collisions.

What these studies prove is that we need to ask our experts to be clearer in their reports on patients future prospects, especially in cases where an addendum is prepared and where the only prospect of financial reward would be the application of the narrative test (MVA’s). It is clear from these studies that a whiplash injury cannot simply be ignored when taking into consideration if a client qualifies for general damages or for what amount such general damages should be awarded.

Careful consideration and adequate instructions to our experts will insure that matters are properly considered as they should be.

[1] McGill University, Montreal, Canada. samy.suissa@clinepi.mcgill.ca

Post Traumatic Stress Disorder (PTSD)

2012-09-20T01:43:00.002-07:00

A large number of South African suffers from Post Traumatic Stress Syndrome for some reason or another. It is common for Personal Injury victims to have recurring nightmares or unreasonable fear when again placed in the particular event or situation that afflicted them in the first place. Research indicates that 7 to 12 percent of people develop post-traumatic stress disorder (PTSD) at some point in their lives, with women more likely than men to develop it.

PTSD is an anxiety disorder that can occur after a person experiences a traumatic event such as combat or military experience, sexual or physical abuse or assault, a serious accident, or a natural disaster such as a fire, tornado, flood, or earthquake. Some people develop PTSD after seeing someone else experience a traumatic event. The more severe and the greater the number of traumatic events experienced, the more likely someone is to develop the disorder. PTSD often leaves one feeling vulnerable, out of control, and as if one is in constant danger. These feelings are persistent, are strong, and do not disappear over time on their own. Everyday life, work, and relationships can be negatively affected.

In some instances the effects of such PTSD can have a debilitating effect on the work and home environment of the sufferer and can go undiagnosed in such personal injury cases preventing provision being made for proper care and treatment after the fact.

To be diagnosed with PTSD, the person must have persistent trauma-related problems for at least a month after the event. The person must also have specific

symptoms, which are described below.

What Are the Symptoms of PTSD?

PTSD is defined as experiencing three types of persistent symptoms following a traumatic event:

• re-experiencing the event through intrusive memories, dreams, or flashbacks, or feeling distress upon exposure to trauma-related stimuli

• avoidance of people, places, or things that remind the person of the traumatic event; numbing of feelings or detachment from others

• increased arousal, including increased heart rate and muscular tension, restlessness, sleeping, irritability, poor concentration, feeling on guard or hyper vigilant, or having an exaggerated startle response[1]

I find that attorneys for both parties too easily dismiss these diagnoses with a wave of the hand and open themselves up to litigation for under settling. Once again, ensure that you investigate your client’s complaints completely and in totality.

[1] Co-occurring disorders program: Family program 2008 – Hazelden Foundation

The Correct Expert

2012-09-20T01:15:00.001-07:00

My most frustrating moments in settlement negotiations, regularly, is when your opponent does not know the difference between a neurosurgeon and a neuropsychologist and the impact this can have on your ability to settle a matter.

An orthopaedic surgeon who looks at the ex rays and does not test the physical capabilities of a particular body part to perform its functions as an occupational therapist does, can similarly prevent a fair and reasonable settlement discussion taking place.

Whereas the neurosurgeon is just that, a surgeon, the neuropsychologist does a battery of test not limited to cognitive functioning, that will enable him to determine if a minor brain injury has had an impact on a person’s capabilities and have led to any incapacity. Ditto for the Orthopaedic v the OT.

The AMA guidelines as applied by the surgeons are often incorrectly applied as they are not trauma specialist. As such it would be in the client’s best interest to utilize a Trauma Physician to assess the client for completion of the RAF 4 form.

The assessment of General Damages in any personal injury matter can be better determined with a Trauma Specialist so as to more fully appreciate the extend of the pain and suffering the client will be exposed to in future and will further assist in preventing the determination of General Damages being a thumb such stuck in the old ages without taking the subjective pain and suffering of the individual into account.

A short period of unconsciousness can have serious future complications and any lack of oxygen during injury can lead to future cognitive difficulties. Make sure that you investigate all your injuries carefully and peruse the hospital and medical reports in detail. The ambulance records form a vital part of such an investigation as a patient that is found unconscious at the scene of the accident should raise alarm bells. Check the time of accident and the time of arrival of the ambulance and you will have an estimated period of unconsciousness. As such make sure that the specialist completing your RAF 4 form is in possession of these docs and have considered them when applying the AMA Guidelines and the narrative test.

2012-03-01T08:00:00.000-08:00

Choosing the right expert in a medical negligence case

DE REBUS March 1st, 2012

‘How do you ensure that the opinion of your expert is favourably considered?’

By Maud Letzler

As the sun sets on personal injury law as we know it in South Africa due to the demise of road accident claims, counsel and attorneys will be confronted with an increase in medical malpractice matters.

Medical negligence claims have always been present in South Africa, but in the past insurers were happy to settle most matters quickly and quietly to avoid incurring unnecessary costs and to save the reputation of the doctor concerned. As renewed financial pressure will be placed on the resources of insurers, plaintiffs may find themselves having to fight harder to obtain a settlement or a favourable outcome in court, and herein lies the crux of the matter. No one can prove a medical negligence case, although some certainly try to, without expert medical opinion. However, with the variety of fields that may confront a legal practitioner, he may find himself swimming upstream.

Doctors in South Africa, as in other parts of the world, are notoriously reluctant to testify against each other, and medico-legal experts often find themselves on the outside of the fraternity being reviled for what is essentially a necessary service to mankind.

The medical profession, like any other, should be subject to checks and balances, and without doctors willing to give opinions in legal matters the rights of parties may be severely prejudiced.

The most dangerous scenario for any doctor would be to come up against a plaintiff who is litigating for the sake of it, that is, with his heart and not his head.

It is essential for practitioners who plan on moving from motor vehicle accident (MVA) work to medical malpractice to realise that the database of experts they have built up over the years to assist them in fighting for justice may now need to be revised. They will need an expert in almost every field of practice and, as will be illustrated below, will require working doctors and not academics in most cases.

Trying to find a suitable expert a couple of months before trial will be fruitless as it will require much persuasion to convince a practising specialist to give up his time to testify against a colleague, especially in a field that may only have a handful of specialists.

It may be prudent to obtain not just the services of an expert in the particular field, but also an opinion at the onset of the matter as it may save everyone a lot of money.

Courts and expert opinion

South African courts apply a test identical to that applied in most other common law jurisdictions to determine the weight to be attached to expert evidence in cases involving medical negligence.

The test was formulated by the Supreme Court of Appeal (SCA) in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at para 34. The court held:

‘In the course of the evidence counsel often asked the experts whether they thought this or that conduct was reasonable or unreasonable, or even negligent. The learned judge was not misled by this into abdicating his decision-making duty. Nor, we are sure, did counsel intend that that should happen. However, it is perhaps as well to re-emphasise that the question of reasonableness and negligence is one for the court itself to determine on the basis of the various, and often conflicting, expert opinions presented. As a rule, that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the court’s reaching its own conclusion on the issues raised.’

In this particular case the experts were not asked, nor purported, to express a collective or representative view of what was or was not accepted as reasonable in a South African specialist anesthetist practice in 1994. The court expressed its frustration that the experts called did not have a ‘collective or representative opinion’ to determine how a reasonable anesthetist would have reacted in the same circumstances. It also expressed concern that the primary function of the experts called was ‘to teach’.

It found that there was an ‘absence of evidence’ of what practice prevailed in the particular field and ‘[t]hat being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning’. The court also referred to the United Kingdom House of Lords decision in Bolitho v City and Hackney Health Authority [1998] AC 232, in which the court stated: ‘[T]he court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice.’ The court further held that it must be satisfied that such opinion has a ‘logical basis’, in other words, that the expert has considered comparative risks and benefits and has reached ‘a defensible conclusion’ (at 241G-242B).

It further went on to state that even in cases where the professional opinion held that overlooking an obvious risk is not negligent, the defendant can still be held liable (at 242H). The court further stated that courts have to rely on expert opinion to make an assessment of medical risks and benefits and, as such, the court would not be capable of making clinical judgments without the assistance of medical experts. ‘It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed’ (at 243A – E).

This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable of Strathclyde Police 2000 SC (HL) 77, in which the following warning was given:

‘One cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved – instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidence.’

The Western Cape High Court judgment in Kosana v MEC for Health (WCC) (unreported case no 9230/2005, 23-1-08) (Erasmus J) elaborated on this further. The court referred to a passage from the Appellate Division judgment in Van Wyk v Lewis 1924 AD 438 at 444 and stated at para 36:

‘In estimating the level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which a specialist belongs (the responsible body of medical men skilled in the particular art), “the evidence of qualified surgeons or physicians is of the greatest assistance”.’

The court then quoted from the following passage in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639:

‘I have to say that a judge’s “preference” for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. … For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.’

The court went on to quote from the judgment in the Bolitho case, where it was held that:

‘The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer the one of two views, both of which is capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.’

In Honisz v Lothian Health Board [2006] CSOH 24, at para 39, the Scottish court explained, relying on the judgment in the Bolitho case, that:

‘[As] a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman, p 639F-G). Secondly, however, the court does not defer to the opinion of the relevant professionals to the extent that, if a defender led evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson, pp 241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct.’

Similarly, the Supreme Court of Singapore stated in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] SGCA 40 at paras 51-53 that:

‘The Bolitho addendum merely affirms the supervisory judicial responsibility to ensure, at a minimum, that the expert opinion is defensible and grounded in logic and plain common sense. This non-delegable adjudicatory mandate to assess the appropriate standard of care cannot be seriously denied. In this context, we also find the observations of Moffitt J in Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 (Pacific Acceptance) at 75, cited by Ang J in Gaelic Inns ([34] supra ) at [11], particularly pertinent:

“When the conduct of an auditor is in question in legal proceedings it is not the province of the auditing profession itself to determine what is the legal duty of auditors or to determine what reasonable skill and care requires to be done in a particular case, although what others do or what is usually done is relevant to the question of whether there had been a breach of duty.

It follows, if the auditing profession or most of them fail to adopt some step, which despite their practice was reasonably required of them, such failure does not cease to be a breach of duty because all or most of them did the same.”

When assessing whether a professional has been negligent, courts will normally use as their benchmark the common practice within the relevant profession. However, notwithstanding that an expert witness may have considerable professional experience and knowledge about the reasonableness of prevailing standards, the court retains the supervisory responsibility to condemn an unjustifiably lax, albeit common, practice as negligent: See Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296.

In the light of the foregoing, even if the respondent’s expert’s evidence of the respondent’s expert about prevailing standards is accepted, a pertinent consideration is whether these standards fail the Bolitho addendum.’

In short, a faithful application of the Bolitho test, which has been endorsed by the SCA, as well as courts in other jurisdictions, would mean that a court must usually accept the views of a respected body of experts in cases involving medical negligence. The House of Lords, in the Bolitho decision, explained that there are only rare cases, that would be ‘very seldom’, where a judge should reach a conclusion that the views genuinely held by a competent expert are unreasonable and should be rejected.

Conclusion

The question for legal practitioners remains: How do you ensure that the opinion of your expert is favourably considered? If one looks at the cases above, it seems that legal practitioners may find themselves in an untenable situation if their expert’s opinion is not seen to carry much weight and the defendant, or the plaintiff for that matter, can be unsuccessful as a result.

It is thus imperative that medical experts are evaluated not just for their theoretical knowledge in a particular area of speciality but also for any hands-on experience they may have in practice.

It will be dangerous to use one expert for all matters. If a particular situation requires knowledge of practice rather than theory, then using an academic may prove fatal to the case.

Personal injury attorneys specialising in MVA matters have over the years become well acquainted with experts in their field of speciality and would be able to choose an expert in the particular area according to their needs.

Medical negligence is a whole new ball game as it deals with numerous specialities and attorneys may find themselves confronted with the great unknown when it comes to experts in a particular field.

If an attorney is serious about practising in this very challenging field then he must make sure that his database of experts gets attention early on. Attorneys should ensure that the nature of their relationships with their experts is such that they will be willing and able to assist them should the need arise.

Above all, attorneys should evaluate their claims early on to ensure that only the most meritorious matters proceed to trial.

Maud Letzler LLB (Unisa) is an advocate in Johannesburg.

This article was first published in De Rebus in 2012 (March) DR 34.

The Loss of a Chance to Recover

2011-09-19T08:19:00.000-07:00

The application of the doctrine of a loss of a chance to recover in medical law

A loss of a chance to recover is based on a plaintiff's right to institute action for the loss of a chance of avoiding a result rather than merely the result itself. Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. The law is invited to assess hypothetical outcomes, either affecting the claimant or a third party, where the defendant's breach of contract or of the duty of care for the purposes of negligence deprived the claimant of the opportunity to obtain a benefit and/or avoid a loss. For these purposes, the remedy of damages is normally intended to compensate for the claimant's loss of expectation (alternative rationales include restitution and reliance).

The doctrine is discussed in some detail by Pat vd Heever (2007 Pulp University Press) in his book of the same name. Van den Heever (supra) states that a court will have the advantage when applying the doctrine to award damages if a plaintiff is unable to proof damages on a balance of probabilities. The quantum of damages is assessed according to the degree by which the defendant reduced or destroyed the plaintiff's chance of avoiding the injurious outcome.Van den Heever indicates that there are to date no reported cases of a loss of a chance having been argued successfully in South African law. The doctrine is however applied in England, Australia and the USA.

In English Law, Lord Hoffmann in Kuwait Airways Corporation v Iraqi Airways Co (no's 4 & 5) states that one cannot separate questions of liability from questions of causation as one is not just liable but liable for something. In Australia the courts look at this issue as an injury within the scope of a foreseeable risk.The USA on the other hand looks at the doctrine from three different perspectives, the pure loss of a chance approach, the proportional approach and substantial possibility approach (Rufo v Hosking 2004 NSWCA 391)

Van den Heever states that an appropriate loss of a chance application in a medical negligence context should lift the burden of proof which confronts the plaintiff and simultaneously limit the defendant's liability. Van den Heever argues that in the South African context that such an action should be grounded on contract and tort in the alternative as causation in breach of contract is established when breach is proved on a balance of probabilities. A plaintiff will in such a case be entitled to non-patrimonial damages even if he is unable to prove causal damages. The question then arises what the standard of proof should be in such cases?

Van Den Heever proceeds to deal with the roll of medical statistics in evaluating chance and in specific if a statistical chance or a personal chance should be used as a method of determination. In the matter of De Klerk v ABSA Bank 2003 4 SA 315 (SCA) the court confirmed that determination of damages in a hypothetical future instance need not be established on a balance of probabilities but on the court's assessment of the chance of the risk coming to fruition. Van den Heever then begs the question if chance is real or substantial only at 51 % or if a 30% chance will also suffice.

Hill (1991 54 Modern Law Review 521) argues that a statistical chance will not be unreasonable as a patient who had a 50/50 chance of recovery without the doctors negligence will be content with a settlement of 50% of the full damages proved and the patient whose chances were lower would recover at least something and doctors whose patients had a 51% loss will not pay out too much. As such, keeping it fair and reasonable and to that extent preventing a situation where a patient will get nothing or a doctor overpay (or for that matter the insurer of the doctor).

As it relates to the quantum, medical experts will have to evaluate the individual patient to estimate the percentage loss and the calculation should benefit both plaintiff and defendant in that if a plaintiff can show a 75% chance then the defendant should only pay 75% of damages proved.

The application of the doctrine of a loss of a chance to recover in medical law by Pat van den Heever is available from Pretoria University Law Press.