| Summary: | 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
damagesM-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 damagesu-rule, the calculation
of damages in this respect is also too speculative in nature.
The "limited damagesn-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 himlher.
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 nonpatrimonial
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 doctorlpatient agreements are
ADR-mechanisms that have been proved by American law as suitable for
resolution of medical malpractice claims. === Thesis (Ph.D. (Civil law))--North-West University, Potchefstroom Campus, 2003.
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