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SAMJ: South African Medical Journal

On-line version ISSN 2078-5135
Print version ISSN 0256-9574


MCQUOID-MASON, D J. 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. SAMJ, S. Afr. med. j. [online]. 2022, vol.112, n.3. ISSN 2078-5135.

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.

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