You know that old saying that doctors bury their mistakes? It may be the only thing they have in common with mafia hit men, in addition to the lust for young female nurses. I will grant you though, that the hit men probably did not make any mistakes for their dead, but I am sure you get what I mean.
Last Friday my mom collapsed and I had to rush her to hospital thinking she may have had another stroke. She had one on 16 May this year and I had the unique experience of my mom being in ICU here, my wife in ICU in Orlando FL and all that on my departed father's birthday. Yes, a day as bad as 21 May 2014 for me that was, and never to be repeated, thank the Lord. Luckily this time we went to another hospital where a stent or something medical was placed in her heart and she is now recovering rapidly for someone in her mid-seventies.
So why do I mention this in my blog? Simply, because the treatment between the two hospitals (both private and very well-known) differed tremendously. About the only thing they have in common are the outrageously high fees they charge and you have to ask, for what? Decent medical services? Well, one found the problem, and the other did not even try. So where does that leave us? What does the law say about such bad service?
Frankly, a couple of things. First, someone who claims to be an expert is judged at a higher ratio than the one who is not. Obviously a specialist surgeon is judged by what a run of the mill (if there is such a thing for they are the clever folks amongst us) specialist surgeon and not the reasonable man test. In this case he failed to spot the blocked artery which caused a lack of blood to the brain which caused the first stroke. It is not a new condition which happened in the previous six weeks - it takes years for an artery to be blocked - so he cannot even claim that. So, he is guilty as far as I am concerned but of what exactly? Medical negligence? Yes, but what of theft? He also charged thousands of Rand for service done so badly that it is legally a breach of contract. I am asking myself why he should be paid...if I make such a mistake in my legal consultancy I will do the honourable thing and not charge money for it. If you are an electrician and you make such a mistake why would the client pay you? Should these professional men not also have a sense of decency about such things I wonder? Some do, it is known that attorneys actually resigned because of a mistake they made in a contract which did not even cost the client money. Or at least offer to resign. I believe it is a moral and legal responsibility to take responsibility for your signature on a document - which is why I know of many engineers refusing to sign off plans - they are way too scared to do so. So we find this problem amongst all professions.
Now you may not know this but, up to 1942 or thereabouts, no hospital in South Africa could be sued legally. You will remember that the idea of a hospital started in the Crimean War with one English lady called Florence Nightingale. Our English Judges felt it would be wrong morally to sue a charitable institution which is trying to help you. So it took almost 80 years before the first civil case reached the English Supreme Courts.
* For those interested in legal academic cr-p it was the Younger Umfolozi War Memorial Hospital case where the plaintiff was packed with hot water bottles after an appendix operation. The water leaked and he suffered severe burns. Because of the anaesthetics he did not feel the pain at first and the nurses on duty did not notice either - hence the negligence.
To answer my rhetorical question on theft...no, but it is daylight robbery and should be reported to the medical aid. However, since they already paid it then becomes a nightmare civil suite with one doctors covering for the other and don't even dare to deny that - I saw it happen more than once. The answer to this? Make sure you speak to your mates on which hospital or doctor they recommend and don't trust blindly. Ask questions and research the answers. And lastly, the hospitals are not charitable institutions anymore but big business - yes you can sue them if it makes you feel better.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.