By Kim Hawkey
The Consumer Protection Act 68 of 2008 (CPA), medical experts in court and malpractice in psychiatry and psychology were the topics of a recent seminar hosted by the South African Medico Legal Society.
The society’s members include legal and medical practitioners, as well as judges and academics, who engage in issues related to law and medicine.
Attorney Marietjie Botes from Pretoria firm Dyason addressed delegates on the CPA, which she said applied to every transaction in South Africa that involved the supply of goods or services in exchange for consideration, unless exempted.
Ms Botes said that the scope of the Act was ‘very wide’ and, to the extent that it conflicted with other legislation, the Act providing the greater protection to the consumer would apply.
Below is a summary of some of the topics discussed by Ms Botes in relation to the CPA.
Strict liability
Ms Botes spoke about the strict, or no-fault, liability introduced in the Act, which she said entailed that the consumer had a right to expect goods to be reasonably suitable for the purposes for which they are generally intended, that they are in good working order and free from defects, and that they are usable and durable for a reasonable period of time. In the medical context, this would relate to, for example, medical devices and prostheses, as well as medication.
Implied warranty
Ms Botes said that the CPA provided for implied warranty in each transaction relating to the supply of goods to a consumer and that this extended to the importer, distributer and retailer, each of whom warrants that the goods meet the requirements and standards stipulated in the CPA.
Liability
All those in the supply chain can be held jointly and severally liable for any harm (injury, illness or death, for example) caused as a result of supplying unsafe goods, a product failure, insufficient instructions or warnings relating to any hazard associated with the goods – irrespective of whether the harm was the result of negligence on the part of any of the parties involved, Ms Botes said.
Therefore, she added, the consumer would only need to prove harm (on a balance of probabilities), which was caused by the faulty, unsafe or hazardous product. The consumer would then be entitled to institute action against anyone in the supply chain.
Ms Botes said that as the health care professional who delivered the care is usually the most identifiable person in the supply chain, it was likely that he would be the first person that a patient/consumer would institute action against.
Defences and exceptions to strict liability
Ms Botes said that the following were some of the defences to strict liability in terms of the Act:
Gross negligence
Ms Botes said that a contract may not limit or exempt any supplier of goods or services from liability for any form of damages resulting from gross negligence by the supplier or any person acting under his supervision or on his behalf. This would apply to hospital admission contracts that exclude liability in instances of serious, reckless disregard or carelessness. None of these could be excluded contractually, she said.
Purported limitation of liability
Any contractual terms that purport to limit the liability of a supplier must be brought to the attention of the consumer, especially if the terms relate to activity that is subject to risk of an unusual nature, that could result in serious injury or death, or which a consumer could not reasonably be expected to be aware of, notice or contemplate – such as surgery.
Minimising liability risks
Risks for liability could be minimised by drawing the patient’s attention to all relevant risks in plain language, Ms Botes said. In addition, the patient should be given sufficient time to consider and understand all the risks. Importantly, the patient must consent to and sign the terms in the contract.
Ms Botes advised that a clause containing a complete breakdown of all the patient’s financial obligations should be included in the contract as disputes often arose from the financial aspects of medical treatment. Ms Botes said that a record of all contracts – both written and verbal – must be retained, however she added the rider that in an emergency situation it may not be possible to keep detailed notes.
Quality of goods and services
Ms Botes said that consumers, including patients, had a right to good quality and safe products and services. She said that this requirement would be met by performance of services in a manner and of a quality that people are generally entitled to expect and, in respect of goods, that these are reasonably suitable for the purpose for which they are intended and will be usable and durable for a reasonable period of time (subject to any implied warranty).
Overselling and overbooking
If a supplier/service provider who accepts a reservation for a specific date and time fails to meet this undertaking, he can be held liable for repayment to the consumer. In the medical context, this would apply, for example, to a doctor who books a patient in for surgery on a specific date and at a specific time, but then fails to operate at the specified time due to overbooking. In such circumstances, he may be held liable for repayment of any money paid by the patient together with interest, as well as for costs ‘directly incidental’ to the breach of contract, for example the patient’s loss of income for the day.
However, an exception to this would be where the cause of the delay was due to circumstances beyond the control of the supplier/service provider and the supplier/service provider took reasonable steps to inform the consumer of the delay as soon as possible.
In addition to the discussion on the CPA, associate professor at Unisa Magdaleen Swanepoel and forensic psychologist Dr Louise Olivier spoke about malpractice in psychiatry and psychology, while North Gauteng High Court Judge Ronel Tolmay provided guidance to medical practitioners who acted or wished to act as expert witnesses in court.
Kim Hawkey, kim.hawkey@derebus.org.za
This article was first published in De Rebus in 2012 (Aug) DR 11.
