Medical Malpractice and Compensation in South Africa

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and loss of chance, liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and adverse events. Finally, certain attitudes and concerns about the liability and compensation systems are highlighted

Medical Malpractice and Compensation in South Africa

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and loss of chance, liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and adverse events. Finally, certain attitudes and concerns about the liability and compensation systems are highlighted

Speeding up switch Markov chains for sampling bipartite graphs with given degree sequence

We consider the well-studied problem of uniformly sampling (bipartite) graphs with a given degree sequence, or equivalently, the uniform sampling of binary matrices with fixed row and column sums. In particular, we focus on Markov Chain Monte Carlo (MCMC) approaches, which proceed by making small changes that preserve the degree sequence to a given graph. Such Markov chains converge to the uniform distribution, but the challenge is to show that they do so quickly, i.e., that they are rapidly mixing. The standard example of this Markov chain approach for sampling bipartite graphs is the switch algorithm, that proceeds by locally switching two edges while preserving the degree sequence. The Curveball algorithm is a variation on this approach in which essentially multiple switches (trades) are performed simultaneously, with the goal of speeding up switch-based algorithms. Even though the Curveball algorithm is expected to mix faster than switch-based algorithms for many degree sequences, nothing is currently known about its mixing time. On the other hand, the switch algorithm has been proven to be rapidly mixing for several classes of degree sequences. In this work we present the first results regarding the mixing time of the Curveball algorithm. We give a theoretical comparison between the switch and Curveball algorithms in terms of their underlying Markov chains. As our main result, we show that the Curveball chain is rapidly mixing whenever a switch-based chain is rapidly mixing. We do this using a novel state space graph decomposition of the switch chain into Johnson graphs. This decomposition is of independent interest

Revisiting the infamous Pernkopf anatomy atlas : historical lessons for medical law and ethics

The Pernkopf Anatomy Atlas was compiled in Austria during the Nazi era (1938 to 1945) by Eduard Pernkopf, professor of anatomy and director of the Anatomy Institute at the University of Vienna. Initially, the Atlas was hailed as a classic “masterpiece of unsurpassed beauty”, with reference to the anatomical illustrations, until it was discovered in the 1980s and mid-1990s that Pernkopf and his talented illustrators (all ardent Nazis), had used human material obtained from executed victims of Nazi terror to illustrate the Atlas. In addition, it transpired that the illustrators had signed some of the illustrations with offensive Nazi insignia (the swastika and the “SS bolts”). Amid international condemnation and outrage, whether the Atlas should be rejected or continued to be used has continued to be fiercely debated. This article revisits the Atlas with specific reference to transgressions of medical law and ethics, the debate about the continued use of the Atlas, as well as the startling revelation of the complicity of the medical and legal professions in providing the Nazi regime with the legitimacy it needed for the implementation of its political ideology. Ultimately, this article assesses the lessons to be learned from this historical, but contaminated publication. It is argued that the principle of moral complicity, the right to human dignity and, ultimately, civilisation all militate against the continued use of the Atlas.http://www.unisa.ac.za/default.asp?Cmd=ViewContent&ContentID=20119am2013ai201

Commentaire sur un essai de CJ Konnoth – Médicalisation et nouveaux droits civiques

This commentary, on an essay written by Konnoth, considers the stance taken and motivated by the said author whereby the term “medical civil rights” and the application thereof should be recognised, specifically in context of the “language of medicine”. The author departs sharply from the existing American legal scholarship, by defending medical rights-seeking. In essence, the commentary concurs with the said author's stance and illustrates the incidence and application thereof with examples of the Constitutional jurisprudence (case law) in South Africa as specifically pronounced by the Constitutional Court. The commentary concludes that the recognition of medical civil rights should find universal application and that underpinned values in Human Rights law (for example solidarity, justice and the right to dignity), relevant legislation, medical science and bio-ethics will be guiding sources in the recognition and application of medical civil rights to ultimately achieve transformation.Ce commentaire, d’un essai écrit par Konnoth, considère la position prise et motivée par ledit auteur selon laquelle le terme « droits civils médicaux » et son application devraient être reconnus, en particulier dans le contexte du « langage de la médecine ». L’auteur s’écarte fortement du savoir juridique américain existant, en défendant la recherche de droits médicaux. En substance, le commentaire rejoint la position de l’auteur et illustre son incidence et son application avec des exemples de la jurisprudence constitutionnelle en Afrique du Sud telle qu’elle a été spécifiquement prononcée par la Cour constitutionnelle. Le commentaire conclut que la reconnaissance des droits civils médicaux devrait trouver une application universelle et que les valeurs qui sous-tendent les droits de l’homme (par exemple la solidarité, la justice et le droit à la dignité), la législation pertinente, la science médicale et la bioéthique seront des sources directrices dans la reconnaissance et l’application des droits civils médicaux pour parvenir à terme à la transformation.https://www.journals.elsevier.com/ethics-medicine-and-public-healthhj2020Public La

Judicial recognition of the application of the maxim res ipsa loquitur to a case of medical negligence : Lungile Ntsele v MEC for Health, Gauteng Provincial Government (unreported as yet, case number : 2009/52394 (GSJ) dated 24 October 2012)

No abstract availablehttp://www.journals.co.za/ej/ejour_obiter.htmlam2013ai201

Medical negligence as a causative factor in South African criminal law : novus actus interveniens or mere misadventure?

The aim of this article is to assess the validity and applicability of medical negligence as a novus actus interveniens, with reference to recent South African criminal case law. Such an assessment necessitates an analysis of the most important rules pertaining to causation in South African criminal law. In the context of medical negligence as a new intervening act, reference is made to the influence of medical errors of judgement and the concept of medical misadventure. The judicial 'grading' of criminal medical negligence as 'gross' or 'overwhelming', with reference to relevant case law, is also explored and criticised. It is submitted that the courts should avoid 'grading' medical negligence by way of policy considerations to establish the absence of a novus actus interveniens. They should rather make a principled assessment of medical negligence, with due consideration to the concepts of medical misadventure and professional errors of judgement. More often than not, a principled assessment will lead to a finding that there was no medical negligence and consequently no novus actus interveniens, even in the face of adverse consequences

Revisiting the relationship between dolus eventualis and luxuria in context of vehicular collisions causing the death of fellow passengers and/or pedestrians : S v Humphreys 2013 (2) SACR 1 (SCA)

The relationship between intention and negligence (dolus and culpa), in the context of the crimes of murder and culpable homicide, has become somewhat clouded since the decision of S v Ngubane 1985 (3) SA 677 (A) at 687E-I. This is due to the fact that the Appellate Division (as it was then), ruled that it is incorrect to assume, on the same facts, that proof of intention excludes the possibility that the accused was negligent - thus resulting in the inevitable inference that intention and negligence could overlap or co-exist on the same facts: for example, where an accused is charged with the crime of culpable homicide, but the state proves that the accused, in fact, caused the victim's death intentionally, the accused can nevertheless still be convicted of culpable homicide (see CR Snyman Criminal Law 5ed (2008) 218: 'From a theoretical point of view the decision in Ngubane is clearly wrong. The argument of the court is contradictory and a study in illogicality'; see also S v Ramagaga 1992 (1) SACR 455 (B) 465-466; S v Seymour 1998 (1) SACR 66 (N); S v Jara 2003 (2) SACR 216 (Tk); also compare JM Burchell Principles of Criminal Law 3ed (2005) 541; PF Louw 'S v Ngubane 1985 (3) SA 677 (A): Strafreg - die oorvleueling van opset en nalatigheid' (1987) 20 De Jure 173).http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3599am2014ai201

Revisiting criminal medical negligence resulting in death - S v Van Heerden 2010 1 SACR 529 (ECP)

Cases dealing with criminal medical negligence in South Africa are relatively rare, and rarer still are those that are reported. It is for this reason that the reported case under discussion, more than two decades after the Kramer decision, is of interest. Of particular interest would be a principled assessment of the judgment, in context of criminal medical negligence with reference to the crime of culpable homicide. In this case, it is specifically some of the elements of criminal liability, namely the actus reus (in the form of an omission), causation and fault that attract academic attention, albeit by way of a deconstruction of the judgment.http://www.lexisnexis.co.zanf201