A critical analysis of exclusionary clauses in medical contracts.

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.