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Hospital exclusion clauses limiting liability for medical malpractice resulting in death or physical or psychological injury: What is the effect of the Consumer Protection Act?

David J McQuoid-Mason

Abstract


In 2002 the Supreme Court of Appeal ruling in Afrox Healthcare Beperk v. Strydom held that the common law allows hospitals to exclude liability for medical malpractice resulting in death or physical or psychological injury – except in the case of gross negligence. The effect of this judgment has now been superseded by the provisions of the Consumer Protection Act of 2008, which came into effect in March 2011. The Act states that unfair, unreasonable or unjust contract terms are prohibited and that certain terms and conditions have to be drawn to consumers’ attention and cannot be buried in the small print.
It is argued that as a result of the Act, exclusion clauses that unfairly, unreasonably or unjustly protect hospitals from liability for death or bodily or psychological injury caused by the fault of their staff, may be declared by the courts to be invalid and not binding on consumers. They may also be regarded as unconstitutional.

Author's affiliations

David J McQuoid-Mason, Advocate of the High Court of South Africa, Fellow of the University of KwaZulu-Natal, Acting Director, Centre for Socio-Legal Studies, University of KwaZulu-Natal, Durban

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Keywords

Exclusion clauses; Hospitals; Common law; Consumer Protection Act; Death; Bodily injury; Psychological injury

Cite this article

South African Journal of Bioethics and Law 2012;5(2):65-68. DOI:10.7196/SAJBL.202

Article History

Date submitted: 2012-03-23
Date published: 2012-11-23

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