In Practice

Liability of doctors based on negligence for culpable homicide: No need to change the law concerning medical negligence or to establish special medical malpractice courts – use mediation and medical assessors instead

D J McQuoid-Mason

Abstract


Doctors’ organisations have called for special legislation regarding the criminal charging of doctors for culpable homicide, and the need for special medical malpractice courts to deal with the huge increase in the number of medical malpractice cases. However, there are very few criminal prosecutions, because the prosecuting authorities generally accept that doctors do not intend to kill their patients, and are only likely to charge them for intentional or very serious deviations from the standard of a reasonably competent doctor in their profession. Doctors are also generally not held liable for mere errors of judgement. Although the call is for special legislation, the issues concerned can generally be dealt with administratively by existing legislation. For instance, the requirement of mediation before litigation could be introduced by the Chief Justice. Doctors need not fear making admissions during mediation proceedings in civil matters, because legislation provides that such admissions and evidence may not be used in subsequent civil actions. The Chief Justice can also issue a practice directive that all presiding officers must appoint medicolegal experts as assessors in medical malpractice cases. The medical profession can assist the process by arranging a panel of such experts who can be called upon to serve as assessors by the courts.

Author's affiliations

D J McQuoid-Mason, Centre for Socio-Legal Studies, University of KwaZulu-Natal, Durban, South Africa

Full Text

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Keywords

Medical malpractice; Culpable homicide; Mediation; Medical assessors; Panel of experts

Cite this article

South African Medical Journal 2022;112(3):216-218.

Article History

Date submitted: 2022-01-27
Date published: 2022-01-27

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