August
Dear Colleagues and Friends
The importance of an organization such as the SAMLS becomes more and more evident every day. Not only the International scene makes its existence more compulsory, but the local medico-legal scene too. Developing of patient’s rights, informed consent, professional secrecy, causality in medical negligence, the ever increasing negligence litigation are just a few of the subjects that need continuous research. Prof S.A. Strauss played in this development a pioneering role in South Africa. For that reason Prof Strauss was elected as an honourary member of our Society and is still an encyclopaedia of knowledge concerning medico-legal matters for many of us. His book Doctor, Patient and the Law with short and practical essays on all kinds of subjects bears testimony of that.
The medico-legal education is continued at the seminar of 05 October 2002 at the Protea Midrand Hotel. The subject will be Expert Witness - Expert Opinion. An eminent line-up of speakers will make sure to disclose an inexhaustible source of knowledge. Experts Prof Vivian Fritz, child neurologist and Prof Ren van Rooyen, physician, will give us the medical point of view. Legal experts Prof Pieter Carstens, head of the Department of Public Law at the University of Pretoria, Adv Dawie Fourie S.C. and last but not least Judge Bertelsmann will guide us through the legal point of view. Definitely a meeting not to be missed!!. The meeting starts at 09:30 and will end at about 13:00.
An interesting development is taking place in the Netherlands as reported in the Medico Legal Journal “Gezondheidsrecht” No 3 of 2002. The matter concerned is the causal relationship between the breach of duty to supply sufficient information to take an informed consent and the damage that results afterwards. The highest court in the Netherlands, “De Hoge Raad” has up to now given three verdicts about this matter, the first in December 2000, and the second and third in November 2001. Although an extensive knowledge of causality in medical negligence and informed consent is necessary to understand the full implications, the matter can be summarized as follows.
If a patient approaches a doctor with a certain medical problem and the doctor proposes a specific treatment, the doctor has a duty to inform the patient of the risks involved. If the doctor does not do that and a complication materialises, the question can be asked whether the doctor should be held responsible because of a causal relationship between the breach of his duty to inform and the damage occurring because of the complication. A causal relationship needs to be proven by the factual tests of the conditio sine qua non or but for test and the legal causation should be established by the court whether or not the accused should be held accountable. There are two different situations.
One is where a doctor should be held accountable because a causal relationship exists between his breach of information duty and the damage. An example of that is the neglect to administer anti-coagulants and the following development of thrombosis. The other scenario is where spinal cord damage occurs after a scoliosis release and traction while the patient was not informed of such a possibility. The patient had in fact no choice to accept the risk of such a complication. Basic patient rights of a proper informed consent have been infringed, like the right to bodily and psychological integrity and the right to freedom and security of the person. (In our Constitution in article 12-2 and 12-1.)
If damage occurs because of the breach of the duty and the risk materialises in that manner a causal relationship between a delict or default exists. The shift of the burden of proof to the accused (res ipsa loquitur) only comes into being as soon as the prejudiced can prove that the norm infringement creates the risk of the damage and the damage realises. These three prerequisites are essential: norm infringement, creation of the risk of the damage and the realisation of the damage. Not informing a patient of the possibility of spinal cord damage and the realisation of that complication does not mean that the breach of information duty creates that risk. The same accounts in the case of sensory nerve damage after a tendon release at a wrist. The realisation of the not mentioned complication does not automatically mean that the risk is created by that.
Of interest is the role expert opinion and expert witnesses appointed by the court play in supplying expert information on specifically asked questions. Perhaps in our court system appointed expert witness or appointed assessors should be used more and more as well. This would be mean the end of biased and professional witnesses.
The details of the two interesting cases discussed in the Journal will not be discussed in full in this newsletter, but a presentation will be prepared on invitation to the South African Spinal Society’s meeting in Johannesburg next year.
At last the meeting of the specially appointed Committee about the format and remuneration of medico-legal report on 24/08/2002 can be mentioned. A very fruitful meeting was held and the consensus report of the committee will be published on our website : www.samls.co.za for comments by SAMLS members shortly. Specific guidelines for the format and billing, as well remuneration will be given. Every specialist group represented in our Society will be approached to work out an average hourly compensation for professional work done. The final draft will be the SAMLS point of view about that matter and representation to the RAF, WCC, Insurance companies and other important role players in that context will be made. A unified front by members of our Society will be mandatory in that regard. Next month a detailed newsletter about this subject can expected.
As new horizons loom, participation of all our members is essential. The medico-legal field is the fastest growing subject of interest groups not even in our country but worldwide. Please stay involved and get other people involved.
Your President
DR & ADV ANTON H VAN DEN BOUT
EXCO MEMBERS:- Mr Jan van Rooyen - Vice President
Dr. Dave Barnes - Secretary
Dr. Henny Pienaar – Treasurer
Prof Pieter Carstens – Member
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