Sandra Sithole (ZA)

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Hospital receptionists owe duty to inform patients accurately regarding available medical assistance

By Sandra Sithole (ZA) on November 12, 2018 Posted in General

A judgment of the English Court of Appeal which we called ‘bizarre’ and ‘peculiar’ has been predictably overturned by the UK Supreme Court. The Supreme Court found that the hospital run by the NHS Trust is liable to a patient with a head injury who had been given misinformation by the hospital receptionist that he … Continue reading

Strip club not covered for credit card theft by employees (US)

By Sandra Sithole (ZA) on September 6, 2018 Posted in Insurance

In August 2018, a US federal court ruled that an insurer did not have to cover a strip club for third party reimbursement costs arising from credit card fraud on its customers by the club’s employees because no direct loss was suffered by the club itself. The insured, a club owner, was the holder of … Continue reading

Damage arising from marijuana operations not covered by policy (US)

By Sandra Sithole (ZA) on September 3, 2018 Posted in Insurance

A US appeals court in August 2018 found that an insurer does not have to indemnify its insured for damage to a warehouse by tenants who converted it into a marijuana growing operation, finding that an exclusion in the policy for losses resulting from criminal acts precluded cover. The claim arose under the building and … Continue reading

Wrongful death claims at bar fails on assault exclusion (US)

By Sandra Sithole (ZA) on August 6, 2018 Posted in Insurance

Two US district courts in two separate cases held in July 2018 that the insurers of public bars do not have a duty to defend or indemnify the insured owners of the bars for violent deaths of patrons because of the policy exclusion for bodily injury arising from an assault, battery or physical altercation. The … Continue reading

The massive cost of medical negligence cases is an international problem

By Sandra Sithole (ZA) on December 11, 2017 Posted in Insurance

It is not only in South Africa that the cost of medical negligence lawsuits is draining the health service. There are calls in Britain for reform to help protect the National Health Service from pay-outs which hit GBP1.4 billion in the fiscal year ending March 2016 alone. The UK Centre for Policy Studies says that the … Continue reading

Periodic compensation of future medical expenses

By Sandra Sithole (ZA) and Patrick Bracher (ZA) on November 6, 2017 Posted in General

In a landmark judgment, the Constitutional Court has left the door open for the development of the common law to have future damages in personal injury claims paid periodically and by way of services. The Constitutional Court was faced with the question whether massive future medical expenses based on speculation can be paid by way … Continue reading

Court restates principles relating to the duty of utmost good faith in insurance contracts (UK)

By Sandra Sithole (ZA) on September 14, 2017 Posted in Insurance

A UK court has found that an insurer is entitled to avoid a policy where the insured had misrepresented the state of repair of the insured property and failed to disclose malicious acts and vandalism which had the effect of increasing the risk of fire in the property. The insured, a mixed commercial and residential … Continue reading

Struck off doctor practising without insurance refused appeal (UK)

By Sandra Sithole (ZA) on September 12, 2017 Posted in Insurance

In August 2017, the English Court of Appeal denied an appeal to a gynaecologist who was struck off the roll for practising without professional indemnity cover, which is compulsory in the UK. The doctor, who had a substantial private practice, was uninsured for a period of 5 years between 2007 and 2012. Until 2002, he … Continue reading

Appeal Court confirms insurer liable to indemnify insured for failure to assess the risk of a schizophrenic prison inmate (Australia)

By Sandra Sithole (ZA) on September 12, 2017 Posted in Insurance

The New South Wales Court of Appeal upheld the decision of a lower court, holding an insurer liable to indemnify its insured, a prison detention centre for failing to assess the risk of a chronic schizophrenic prison inmate. The inmate threw himself from a building and suffered serious brain and other physical injuries. The issue … Continue reading

Cover under US liability policy does not extend to arson by hospital patients

By Sandra Sithole (ZA) on September 11, 2017 Posted in Insurance

In August 2017, a US federal court held that the indemnity for ‘activities’ on behalf of the insured under a liability policy of an insured and its members does not extend to cover arson or attempted suicide by two mentally ill patients who attempted to commit suicide by burning down their apartments owned and managed … Continue reading

When is cover extended to companies in which insured has ‘majority interest?’ (US)

By Sandra Sithole (ZA) on August 14, 2017 Posted in Insurance

In August 2017, a US federal court ruled that the ordinary meaning of ‘majority interest’ in a liability policy where cover is extended to all companies in which the named insured holds a majority interest is a financial interest, either direct or indirect, of greater than 50% and not only absolute ownership or a controlling … Continue reading

Law Commission report on medico-legal claims for comment by 30 September 2017

By Donald Dinnie and Sandra Sithole (ZA) on July 31, 2017 Posted in General

The South African Law Reform Commission has issued a lengthy paper on the investigations into medico-legal claims with proposals for the reform of the law in connection with those claims. The paper discusses the current situation and the legal principles underlying claims for damages for medical negligence, state liability, the basis for payment of compensation … Continue reading

Doctor/Patient confidentiality and failure to disclose genetic risk of Huntington’s Disease (UK)

By Sandra Sithole (ZA) on June 5, 2017 Posted in General

A pregnant woman in the UK has sued a hospital and mental facility for failing to inform her that she had, through her father, a high risk of suffering from Huntington’s disease. Huntington’s Disease is a hereditary condition causing damage to the brain cells, giving rise to disruption of movement, cognition and personality change and … Continue reading

Duty to disclose diagnosis of a genetic disease may be extended to family members (UK)

By Sandra Sithole (ZA) on June 5, 2017 Posted in General

In a landmark judgment, the English court of appeal has opened the door in the UK to the extension of the duty of care owed by a hospital to the daughter whose father had been diagnosed with Huntington’s Disease despite the father refusing to consent to the disclosure. The facts of this case are tragic. … Continue reading

Facebook page costs woman future loss claim (UK)

By Sandra Sithole (ZA) on May 10, 2017 Posted in General

A 37 year old woman from Nottingham has lost a claim for future pain and suffering following failure by a hospital to notify her of a positive result of a sexually transmitted infection with the result that the infection was left untreated for a year. The woman who suffered from a pre-existing somatic symptom disorder … Continue reading

Exclusion for medical services in a medical malpractice claim (US)

By Sandra Sithole (ZA) on April 24, 2017 Posted in Insurance

Over a 150 patients claimed damages against a hospital because of an outbreak of fungal meningitis and related infections which resulted from the patients receiving injections with contaminated substances. The court held that there was no claim under the insurer’s commercial package policy based on personal injury claims because the policies excluded bodily injury ‘due … Continue reading

Failure to assess risk of schizophrenic prison inmate covered by policy

By Sandra Sithole (ZA) on September 26, 2016 Posted in Insurance

In June 2016, the Australian New South Wales Supreme Court held a liability insurer liable to indemnify its insured, a prison detention centre, for a claim arising from the insured’s failure to note that one of its inmates suffered from chronic schizophrenia as a result of which he was not given access to his anti-psychotic … Continue reading

Communication via brokers held not to be privileged

By Sandra Sithole (ZA) on September 22, 2016 Posted in Insurance

A US court has ruled that communications between lawyers and insurers which passed through a London broker are not privileged. This is because entrusting lawyer advices to a third party, such as a third party broker, amounts to a waiver of privilege since those communications are no longer confidential. The London brokers acted as nothing … Continue reading

Pain and suffering includes mental anguish from medical negligence

By Sandra Sithole (ZA) on September 21, 2016 Posted in General

In March 2016, the Austrian Supreme Court granted an award for pain and suffering to a patient for mental strain after a piece of broken scissors was left in his body following a surgery despite the fact that the claimant had not suffered any physical pain. The action was brought against the manufacturer of the … Continue reading

Withdrawal of life support from child in his best interests (UK)

By Sandra Sithole (ZA) on September 20, 2016 Posted in General

The mother of a 2-year old child who suffered grave injuries in a road traffic accident appealed against the court order obtained by the grandmother to withdraw all respiration and to treat the child only with pain relief, sedation and nursing as appropriate. The evidence was that the child could not feel anything below his … Continue reading

Difficulty in interpreting a policy does not mean it is ambiguous

By Sandra Sithole (ZA) on May 31, 2016 Posted in Insurance

Policies like any contract are not rendered uncertain because the parties disagree on their meaning. The court in Expectio Properties (Pty) Ltd v Mutual & Federal Insurance Company Limited was called upon to decide whether a dispute relating to the interpretation of an insurance contract between Mutual & Federal and the liquidators of Expectio Properties indicated … Continue reading

Confusion over reinstatement value conditions

By Sandra Sithole (ZA) on May 30, 2016 Posted in Insurance

An insurer’s obligation to indemnify the insured does not arise until the insurer has elected whether to indemnify in money or by reinstatement. The election must be made within a reasonable time. Mutual & Federal concluded an insurance contract with the liquidators of Expectio Properties and agreed to indemnify the insured for damage to the … Continue reading

Higher degree of care required when dealing with children

By Sandra Sithole (ZA) on May 22, 2016 Posted in General

A higher degree of care is required when dealing with children. Teachers owe young children in their care a legal duty to act positively to prevent physical harm being sustained by them through misadventure. The appellant Pro Tempo Akademie CC, conducts a school which caters for learners who struggle with learning disabilities and which Jaco, a … Continue reading

Significant changes expected in the healthcare sector in 2015

By Donald Dinnie and Sandra Sithole (ZA) on March 24, 2015 Posted in Insurance

The Minister of Health, Dr Aaron Motsoaledi called a Medico-Legal Summit on 9 and 10 March 2015 which we participated in as part of the Ministerial task team appointed to look into the rise of medical negligence claims against the healthcare sector. The objective of the Summit, which was attended by interested stakeholders both in … Continue reading