Jurisprudential developments relating to the nature and standard of medical liability (2000-2016)

Abstract

Occupations which are comprised within the generic term ‘profession’ share certain common characteristics. Inherent in their very nature is the requirement of specialised knowledge and skill attainable only through the rigours of theoretical and practical training. Concomitantly, there usually also exists a strong sense of responsibility and commitment towards the client. The health care provider does not guarantee that he will cure the patient, just as the lawyer does not guarantee that he will win the case. The crux of the judiciary’s and the legislature’s approach to professional liability to be found in the formidable task of striking a fair balance between providing appropriate protection for the patient and allowing for factors which are beyond the professional’s control, by tolerating a certain amount of discretionary authority on the latter’s part without which the latter will be unable to carry out his/her duties as a professional. In spite of the limitations posed by the title, this Research Project attempts to analyse trends in the area of medical liability, relating specifically to the nature and standard of medical negligence, through an analysis of the application of contract and tort law by the Courts and examining the role of concepts such as culpa, gross negligence and professional error in defining the standard of liability through a chronological assessment of recent pronouncements. Litigation on such matters is beginning to escalate, and hence the value of this research paper to both doctors and patients.