Written by: Mthokozisi Maphumulo, Litigation Attorney at Adams and Adams
In South Africa, the health sector (public and private) is a ‘famous’ Defendant in our courts as the government, hospitals and/or doctors are often sued for medical negligence by the members of the public. With the COVID-19 putting more pressure in our no-so-perfect health system and medical personnel, it remains to be seen whether there will be legal suits stemming from COVID-19 related cases. With the government’s proposed mass screenings, testing and treatment, the health workers and the relevant role players will need to carry out their duties with utmost diligence and professionalism. There has already been a public panic about the said mass screenings, as people fear that the supposed to be detected and treated virus may well be unknowingly transmitted by the personnel conducting the tests.
Fears have been fuelled by the ongoing events at St Augustine Hospital in Durban – with more than 40 patients and health workers having been infected. In view of the panic, uncertainty and the rush in trying to curb the spread of the virus, there is not much of thorough training and preparation done to equip the pertinent personnel and this may very well result in several civil suits against the health sector, if the virus gets transmitted in the process, by the relevant personnel, the success of which will be a matter of evidence in court.
South African government and Health Department, in particular, has received a global recognition and praise for its proactive and effective approach in dealing with the spread of the virus. The effective steps have seen the “curve flattening” and a number of recoveries. Whilst the steps taken are praiseworthy, the government or relevant hospitals are not immune to being sued should the medical assistance rendered relating to COVID-19 fall below the accepted standard. For example, the aforementioned mass screenings and testing are for the greater benefit of the public and are applaudable initiatives by the government. What may happen, however, is that during these screenings and testing, the transmission of the virus may occur and at a mass scale. If during these screenings and testing a person contracts the virus, they may institute a legal action against the relevant role-players. This is so despite the good reason and rationale behind the initiative.
The effects of contracting the virus are dire for the person – not only because of the possible complex life-long health implications but financially, psychologically, and otherwise. It is for this reason that the victim will have to be compensated with what is just and equitable in view of the prevailing circumstances. Whilst there may be issues with proving that the victim contracted the virus during the screening and/or testing – this will be a matter of evidence. Documentary and circumstantial evidence will be of great use herein. Also, to ease the burden of proof for the victim, is the fact that s/he has to prove a prima facie case i.e. on the face value, the victim has to prove a case on the balance of probabilities. This will shift the burden to the government or hospital and/or doctor, to disprove the prima facie case which may not be an easy task. That said, the success or failure thereof of each claim will depend on the circumstances of each case. Notwithstanding the fact that the government and the health sector are doing their utmost best to save lives, it will be greatly important to ensure that in executing their duties, the relevant personnel does so with the greatest care and diligence, failing which they may attract legal liability. We have seen already with “mass infections” at St Augustine Hospital and Morningside Clinic that even in the hospitals (let alone this being a highly rated and respected), transmission is possible if necessary and utmost care is not given. Should the proposed probe into both incidents prove that there was negligence on the part of the hospital and/or doctor/s, we may well see an influx of claims laid by the infected patients. Given the dire health ramifications which may result from being contracted with COVID-19, it will only be just for the victims to seek compensation, accordingly