Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice

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dc.contributor.advisorPrice, Alistairen_ZA
dc.contributor.authorBusch, Stefanieen_ZA
dc.date.accessioned2017-09-14T12:26:39Z
dc.date.available2017-09-14T12:26:39Z
dc.date.issued2017en_ZA
dc.description.abstractThis 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.en_ZA
dc.identifier.apacitationBusch, S. (2017). <i>Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Private Law. Retrieved from http://hdl.handle.net/11427/25202en_ZA
dc.identifier.chicagocitationBusch, Stefanie. <i>"Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Private Law, 2017. http://hdl.handle.net/11427/25202en_ZA
dc.identifier.citationBusch, S. 2017. Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Busch, Stefanie AB - 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. DA - 2017 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2017 T1 - Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice TI - Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice UR - http://hdl.handle.net/11427/25202 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/25202
dc.identifier.vancouvercitationBusch S. Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Private Law, 2017 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/25202en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Private Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherPrivate Lawen_ZA
dc.subject.otherDelictual Lawen_ZA
dc.subject.otherDelictual Liabilityen_ZA
dc.titleRecovering for a loss of a chance of survival: loss of a chance in South African medical malpracticeen_ZA
dc.typeMaster Thesis
dc.type.qualificationlevelMasters
dc.type.qualificationnameLLMen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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