Die beslegtingsproblematiek in geval van mediese wanpraktyksgeskille met spesifieke verwysing na die "Action for wrongful conception" en die "ADR"-proses
Crous, Aletta Johanna
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Although sterilisation is the safest and most popular method of contraception, it sometimes happens that a sterilisation operation fails. Such failure can be ascribed to natural causes, such as re-canalisation of the Fallopian or seminal tubes, or to the negligence of the surgeon by whom the operation was performed. A legal action based upon a sterilisation which had been carried out negligently or not at all, constitutes a claim for medical malpractice. The medical practitioner had violated his legal duty towards the patient with detrimental consequences to the latter. Because of divergent and sometimes erroneous interpretations by American courts of the underlying principles pertaining to breach of warranty, actions for wrongful (undesired) conception (pregnancy) are based on contract rather than delict. According to the principles of the Law of Delict, the aggrieved party (the patient) must be placed in the same position in which helshe had been before the unsuccessful sterilisation. The negligent party (the medical practitioner) must bear the liability for all foreseeable adverse consequences of his negligent conduct. Damages are recovered for foreseeable detrimental consequences of a failed sterilisation, with the exception of the costs involved in the raising of an unplanned child. The majority of American courts applies the "limited damages M-rule in terms of which the granting of such costs is against public policy. The American public policy endorses the value of human life and the stability of family life. An unplanned child is not seen as a compensative disadvantage and emotional prejudice to the child, with the medical practitioner as "surrogate parent" responsible for the costs to rear the child, must be prevented. According to the "limited damages u-rule, the calculation of damages in this respect is also too speculative in nature. The "limited damages n-rule is based upon emotional considerations with a "pro-life" undertone. By refusing rearing costs, the fundamental nature of procreation rights is disregarded and the health considerations are frustrated. The prejudice referred to in the action for wrongful conception does not lie in the birth of an unplanned child, but in the upbringing of the child conceived and born as a result of the negligence of the medical practitioner. An order for costs related to the rearing of the child serves the purpose of providing for the child and is not tantamount to a rejection of him/her. A right only has any value if there is a remedy providing for the acknowledgement and enforcement thereof. Contemporary South African Law is inadequate as far as this type of action IS concerned. For example, a claim for non-patrimonial loss cannot be based upon contract, i.e. for breach of contract. An increase in medical malpractice claims can be expected in South Africa in view, of the fact that the public is becoming more and more aware of its rights in respect of health services and healthcare. The public opinion calls for development of the relevant legal principles in South African law. The fact that the law is not accessible to everyone in South Africa is a matter of concern. High litigation costs, coupled with the time consuming protracted, formal and complicated forensic process, calls for a transformation towards an alternative, non-judicial process that is suitable for a particular dispute and apposite to the parties involved. Selection panels, the medical ombudsperson and arbitration clauses incorporated in doctor/patient agreements are ADR-mechanisms that have been proved by American law as suitable for resolution of medical malpractice claims.
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