Frequently Asked Questions about Medical Malpractice in South Africa

Understanding your rights as a patient in South Africa is important. You may have been a victim of medical malpractice without even knowing it, or you don’t know or understand which legal steps you can take against the institution or medical practitioner. A few of the frequently asked questions about medical negligence or malpractice in South Africa as related to confidentiality breaches and lack of informed consent are thus briefly answered below to help you become informed about your rights.

When is there a breach in doctor-patient confidentiality?

A breach in doctor-patient confidentiality occurs when the medical practitioner or one of their staff members working with the patient’s information discloses the patient’s information to a third party without the patient’s consent. Note that there are exceptions, such as when the practitioner by law is required to disclose the information to health officials, the medical aid company, or law officers upon a court order.

Why is there a doctor-patient confidentiality relationship?

It is necessary to ensure that the patient can be comfortable enough to disclose information to the health worker in order to allow them to make the correct diagnosis and provide the correct treatment. If no such a relationship exists, the patient may be wary to disclose sensitive information out of fear of the information becoming public or being shared with the patient’s employer, friends or family members causing embarrassment or job loss.

What does it cover and how long does it last?

The confidentiality relationship covers all the information that the patient reveals to the medical practitioner and the information that the practitioner collects from examining the patient, all medical records including the X-rays, lab results, history of the patient, and communication between the patient and the practitioner’s staff members. This relationship is ongoing, even after the patient has passed away.

What is informed consent?

This is provided by a patient, after all information on the condition and treatment relevant has been communicated and the patient bears knowledge of risks, side-effects, etc.

Must the informed consent be in writing?

This can be in writing or verbally. If the medical practitioner has not gone through the necessary steps to ensure that the patient understands the risks, benefits, possible outcomes and alternatives, then simply not questioning doesn’t necessarily mean that the patient has given consent. In this instance, the patient has not received enough information to make a decision. A patient has to prove that he/she suffered damages as a direct consequence of lack of informed consent.

Where there are serious risks or if the treatment is expected to be complex, the medical practitioner will normally require written consent. A surgery, for example, is an invasive and risky process, and for such there is normally written consent needed.

We recommend seeking legal guidance if you suspect that you may have been a victim of medical malpractice regarding informed consent or breach of confidentiality.

Disclaimer

Note that the information in this article is for information purposes only and should not be seen as an attempt to provide legal advice. We strongly recommend that you contact us at Adele van der Walt Incorporated for professional legal advice.

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