Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice
This dissertation seeks to argue that the doctrine of a loss of a chance should be adopted into South African law, specifically within the medical malpractice field. This doctrine allows for a physician to be held delictually liable for causing a loss of a chance of recovery or survival in medical misdiagnosis cases where a physician negligently failed to diagnose a curable disease, and the patient is thus harmed by or succumbs to such a disease. It is this writer's objective to demonstrate why such a doctrine ought to be introduced into South African delictual law as a secondary claim which is to be available once a claimant is unable to meet the traditional test for causation, and then evaluate in which manner this doctrine should be integrated into the law, keeping in mind South Africa's law of delict and the court's past practices in developing delictual principles. Two different approaches predominately adopted in other jurisdictions in order to overcome the concerns regarding how the doctrine disregards the causation standard will be discussed. The first approach, the 'substantial possibility' approach, calls for the relaxation of the causation standard in specific cases, whilst the second approach, the 'pure chance' approach, views the loss of a chance as an autonomous injury in and of itself. Each of the two approaches are evaluated in relation to South Africa's delictual law, as well as its judiciary's past practices in developing delictual principles. By doing so this writer will illustrate which approach is more beneficial and suitable within the South African delictual law context. It is this writer's contention that, in order to ensure the effectiveness of the doctrine, it would be wiser to introduce the loss of a chance doctrine by ways of wrongfulness, whereby the court could create a new harm which is wrongful in the eyes of the law if it holds that it is reasonable, in terms of public policy and the views of the community, to hold a physician responsible for negligently causing the patient to lose a chance of survival or a cure. By means of wrongfulness, the loss of a chance doctrine can therefore be integrated into South African delictual law on a strong fundamental foothold as to not impeach and threaten the effectiveness of the doctrine in future.
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