A critical analysis of exclusionary clauses in medical contracts.
Loading...
Date
2013
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Abstract
Exclusionary clauses in South Africa have thus far been interpreted narrowly by the South
African Courts. It has been accepted that where a patient enters into a medical
contract/agreement with a hospital that includes a clause excluding the hospital and its
employees from any form of liability whether negligently or not, the patient has no form of
recourse against the hospital for any damages caused except that caused by gross negligence;
the hospital will be absolved of any form of liability. The term caveat subscriptor applies –
“let the signer be aware” that he/she is bound by the agreement signed by him/her whether or
not it was read and understood. The leading case in South Africa dealing with exclusionary
clauses in medical contracts is Afrox Healthcare Limited v Strydom. Since that decision the
Consumer Protection Act has came into existence. My research question involves
determining the impact an exclusionary clause would have, when analysed in terms of the
provisions of the Consumer Protection Act with particular reference to its applicability and
enforcement in medical/hospital contracts. The Afrox case has in itself been a controversial
decision, with many legal writers of the opinion that the principles laid down by the case
need to be overturned as the judgement is not in line with public policy. It is argued that with
the Consumer Protection Act in place, it can be assumed that exclusionary clauses in
medical/hospital will no longer be valid. The Act is a step in the right direction towards
patient/consumer protection and awareness.
Description
Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.
Keywords
Clauses (Law)--South Africa, Contracts--South Africa., Theses--Medical law.