Traditionally, our courts have held that where a patient absolves a hospital or doctor from medical negligence, he or she can’t sue if an operation goes wrong.

Typically, an exemption clause will indemnify the hospital, surgeon and anaesthesiologist “from all liability for damages or loss of whatsoever nature, including consequential damages or special damages from any direct or indirect injury caused to the patient by act or omission”.

Although writers have critisised this type of exclusionary clause, until now, the Supreme Court of Appeal has upheld it.

In other countries, such as the United States, the UK and other European countries, courts usually regard these clauses in hospital contracts as invalid on the basis that they frown upon any conduct that would move away from a generally accepted standard of discharging professional duties. The traditional view is that is that professionals cannot exclude their liability for negligence.

The Consumer Protection Act

In light of the Consumer Protection Act 68 of 2008 (CPA) it is likely that our courts will frown on exclusionary clauses in respect of hospitals and doctors and  bring South Africa in line with foreign jurisdictions in regard to medical liability.

Section 2(2) of the CPA requires our courts to take account of foreign and international law when interpreting the provisions of the CPA.  It provides:

‘When interpreting or applying this Act, a person, court or tribunal or the commission may consider –

• appropriate foreign and international law;
• appropriate international conventions, declarations or protocols relating to consumer protection; and
• any decision of a consumer court, ombud or arbitrator in terms of this Act, to the extent that such a decision has not been set aside, reversed or overruled by the High Court, the Supreme Court of Appeal or the Constitutional Court.’

On that basis, having regard to foreign and international law, our courts will probably conclude that exclusion of liability in medical cases is unfair and should be unenforceable.

This is more so as the CPA contains certain outright prohibitions on the terms that can appear in contracts. An exclusionary clause is probably automatically void. Thus, an exclusion of a hospital’s duty to provide quality service would almost certainly fall foul of the CPA, especially where the hospital is at fault, regardless of whether it is intentional or due to negligence.

Section 51(1)(b) of the CPA provides:

‘51(1) A supplier must not make a transaction or agreement subject to any term or condition if –

(b) it directly or indirectly purports to –

(i) waive or deprive a consumer of a right in terms of this Act;

(ii) avoid a supplier’s obligation or duty in terms of this Act;

(iii) set aside or override the effect of any provision of this Act; or

(iv)  authorise the supplier to –

(aa)    do anything that is unlawful in terms of this Act; or

(bb)    fail to do anything that is required in terms of this Act … .’

54(1)(b) of the CPA obliges a hospital to provide quality service to its patients (and not to avoid liability by hiding behind an exclusionary clause). Section provides:

‘54(1) When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to –

…

(b) the performance of the services in a manner and quality that persons are generally entitled to expect; …

Section 51(1)(c)(i) of the CPA prohibits any term in a hospital contract that purports to ‘limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier …’.

Section 48(1)(a)(ii) of the CPA prohibits ‘terms that are unfair, unreasonable or unjust’. This is supported by s 48(1)(c), which prohibits any agreement that requires a consumer to waive any rights, assume any obligations or waive any liability of the supplier on terms that are unfair, unreasonable or unjust.

Even if the exclusionary clauses in hospital contracts do not fall under the blacklist contained in s 51 of the CPA (which in all likelihood they will), they certainly fall under the general prohibition on unfair, unreasonable or unjust terms contained in s 48 of the CPA. As such, they are void and cannot be relied on by a hospital to escape liability.