Informed consent in medical malpractice suits: An analysis of Beukes v Smith
Author B Townsend & D Thaldar
Affiliations: Postdoctoral Research Fellow, School of Law, University of KwaZulu-Natal; Associate Professor, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 1, p. 13-25
In this case note we make two salient observations regarding the recent Supreme Court of Appeal judgment in Beukes v Smith. First, the judgment shows that when assessing alleged wrong fulness, the court is concerned with whether the health-care user did in fact provide informed consent, and not with formalities such as making notes of consultations. Secondly, the SCA assumed that the health-care user was using pain medication, and further assumed that she was not attentive during the consultation; hence her version of events was rejected. This line of assumption-based reasoning introduces a new anti-patient prejudice in our law, which is clearly unconstitutional, and should be rectified by the SCA at the earliest opportunity.