Postoperative care: From a legal point of view, whose responsibility is it?

An ear, nose and throat surgeon recently asked if anyone else would be responsible postoperatively for removing a patient's throat pack that had been negligently left in place by the anaesthetist. Generally, members of the operating or treatment team such as anaesthetists, surgeons and circulating nurses are not legally liable for one another's negligent acts or omissions in theatre or postoperatively. However, in situations where one or both of the other members of the team could have directly intervened to prevent harm to a patient and failed to do so, such team members could have legal liability imposed on them as joint wrongdoers, e.

When may doctors give nurses telephonic treatment instructions?

Doctors are expected to examine their patients before issuing telephonic instructions to nurses. However, in emergencies or when they are aware of the health status of their patients, it may be justified for a doctor to issue telephonic instructions to nurses without examining the patient. Doctors on call owe a special duty to patients, who they may have to examine or arrange for another doctor to do so before issuing telephonic instructions.

Public health officials and MECs should be held liable for harm caused to patients through incompetence, indifference, maladministration or negligence regarding the availability of hospital equipment.

There have been several reports of state hospitals not having functional equipment such as radiological equipment. Where these are due to incompetence, Indifference, maladministration or negligence by the public officials concerned, they may be held personally liable for the resulting harm to patients. However, the courts have often observed that where the State has been sued vicariously for the wrongs of public officials, it has not obtained reimbursement from the offending official.

When are doctors legally obliged to stop and render assistance to injured persons at road accidents?

Unlike the USA, South Africa (SA) does not have 'Good Samaritan' laws that oblige doctors to stop at road accidents. In SA, the conduct of doctors in such situations is governed by the common law. Doctors coming across injured people at a road accident should stop and render assistance, unless they are likely to be exposed to personal danger or injury, they are mentally or physically incapable of assisting, or other medical or paramedical practitioners are at the scene.

Is it ever justified for doctors to sue their patients whose allegations against them have been dismissed by the courts or the Health Professions Council of South Africa?

Doctors should be cautious about suing their patients, because it may generate bad publicity. Where a criminal or civil case or complaint to the Health Professions Council of South Africa by a patient about a doctor's professional conduct is withdrawn or dismissed, a doctor may only sue the patient for defamation if it can be proved that the patient acted from malice, spite or an improper motive. Doctors may only sue patients for malicious prosecution or abuse of civil proceedings if such patients acted with 'malice' and 'without reasonable and probable cause'.

Must doctors disclose their fees before treatment?

The bioethical principles of patient autonomy, beneficence, non-maleficence and justice or fairness require doctors to disclose their fees before treating patients. The provisions regarding disclosures about fees in the Health Professions Act and National Health Act are in conflict. Those in the National Health Act are likely to be applied by the courts to impose a legal duty on healthcare practitioners to disclose their fees before treating patients.

Can children aged 12 years or more refuse life-saving treatment without consent or assistance from anyone else?

The question of whether a child aged 12 years or more who is sufficiently mature and has the necessary mental capacity may refuse to consent to life-saving treatment without consent from a parent, guardian or caregiver or without the assistance of a parent or guardian is governed by the Constitution, the Children's Act, the National Health Act and the common law. The best interests of the child are paramount, and should the child unreasonably refuse to consent to life-saving treatment, the Minister of Social Development may give consent for such treatment in terms of the Children's Act. Otherwise, should a parent, guardian, caregiver or healthcare provider believe that such a refusal is not in the best interests of the child, he or she may approach the High Court for an order to provide such treatment.

Overturning refusal of a hospital to terminate life support for a brain-dead mother until the fetus was born: What is the law in South Africa?

In a Texas case the court granted a husband an order for the removal of life support from his brain-dead pregnant wife after a hospital tried to keep her on it until the fetus was born. In South Africa the court would have issued a similar order, but for different reasons. Here, unlawfully and intentionally subjecting a pregnant corpse to life-support measures to keep a fetus alive against the wishes of the family would amount to the crime of violating a corpse.