Topic: Healthcare

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The Department of Health may classify medicines for public procurement purposes

The Pretoria High Court recently dismissed a pharmaceutical company’s application to review the Department of Health’s (DOH) decision to classify medicines for the purposes of assessing tender bids.     The DOH awarded a tender to supply surfactants to treat Respiratory Distress Syndrome at public hospitals.  The tender bid invitation was based on two therapeutic classes, … Continue reading

Regulatory requirements behind the peanut butter recall

The National Consumer Commission (NCC) has recently urged the public to return various brands of peanut butters for a refund. The manufacturer of the peanut butters had informed the NCC that the affected products contain higher than the legally accepted levels of Aflatoxin. The recall of most consumer products is regulated by the Consumer Protection … Continue reading

The effect of Avian Influenza on insuring South African poultry farming

Avian Influenza (Bird Flu) is a highly contagious viral disease affecting domestic poultry and wild birds. It is a significant concern to poultry farmers in South Africa. South Africa’s recent Bird Flu outbreak highlighted the need for appropriate insurance for these events. The South African Poultry Association (SAPA) has confirmed that South Africa’s 2023 Bird … Continue reading

Medmal claim unsuccessful for failure to notify request for medical records (US)

A Maryland US court declined a doctor’s request for an indemnity from his medical malpractice insurers because the insured doctor failed to report a request for medical records from the patient’s lawyer as required by the policy during the policy period. The attorney’s request for medical records was sent on 20 April 2021. The insurance policy … Continue reading

Private hospitals cannot employ healthcare practitioners according to the HPCSA’s Rules

Most people are not aware that according to the Health Professions Council of South Africa’s rules, private hospitals cannot employ doctors. While no single provision prevents a private hospital from employing a healthcare practitioner, various health legislation and guidelines read together do. Under the National Health Act, 2003, a private health establishment is a health … Continue reading

Extinction of liability for medical malpractice by prescription

Chapter III of the Prescription Act, 1969 deals with the extinction of debts by prescription.  But how does this relate to personal injury cases? Most claims for damages prescribe in three years, but prescription does not run against minors (people under the age of 18), those with severe mental and intellectual disabilities, or those under … Continue reading

Court confirms that specially trained pharmacists may prescribe prophylaxis HIV medication

The Pretoria High Court upheld the South African Pharmacy Counsel’s decision to implement the Pharmacist-Initiated Management of Antiretroviral Treatment programme allowing suitably qualified pharmacists with the necessary permits in term of section 22A(15) of the Medicines and Related Substances Act, 1965, to prescribe Pre-Exposure and Post-Exposure Prophylaxes (more commonly known as PrEP and PEP), first-line … Continue reading

Prescription does not run against a mentally incapacitated claimant despite having a curator

The Supreme Court of Appeal confirmed that in circumstances where a claimant is mentally incapacitated, the completion of the period of the prescription of a claim would not occur for as long as the mental health impediment exists. Placing a claimant under curatorship is in itself an impediment. It does not bring about a cessation … Continue reading

Medical schemes cannot refuse to pay for single available treatment of a rare condition because it is not “prevalent”

MD and Another v Medihelp Medical Scheme and Another [2022] ZAGPPHC 640 An urgent application was brought to the High Court by the mother of a three-year-old child (“Z”) who has been diagnosed with a rare genetic condition, Hunters Syndrome MPS II (“MPS II”). Z has been a member of the respondent medical scheme from … Continue reading

Court declares regulations on complementary medicines & health supplements unlawful

This blog was co-authored by Lisa Kriegler, Trainee Associate The Supreme Court of Appeal dismissed an appeal by the Minister of Health and the South African Health Products Regulatory Authority (SAHPRA) in favour of the South African Alliance of Natural Health Products.  The Alliance brought an application to set aside the 25 August 2017 General … Continue reading

Court Rejects Sub-Threshold Theory for Acute Profound Brain Injuries

This blog was co-authored by: Felix Le Roux, candidate attorney and Donald Dinnie, director Recently, plaintiffs in medical malpractice litigation involving cerebral palsy have sought to advance the theory that acute profound brain injuries may be preceded by an intermittent deprivation of oxygen to the brain in the hours leading up to delivery.  This theory, … Continue reading

Non-variation clause leads to contract invalidity

This blog was co-authored by Zahraa Amod-Carim In May 2022, the Eastern Cape High Court handed down a judgment that invalidated a shareholders agreement between a private entity and its respective shareholders. Five medical doctors and shareholders challenged the hospital in respect of a new shareholders agreement put into effect without their signed consent required … Continue reading

Claim dismissed for failure to give notice to the State

This blog was drafted by: Paulette Khumalo, Associate A party who intends to bring a claim for damages against an organ of state must comply with the Institution of Legal Proceedings against Certain Organs of State Act, 2002. Section 3(2)(a) of the Act provides that a notice must be served on the organ of state … Continue reading

Blog: Covid-19 Vaccine injury no-fault compensation scheme

This no-fault compensation scheme previously discussed here, has now amended regulations and directions published on the 4th April 2022, available here. The purpose of the Scheme is to provide expeditious and easy access to compensation for persons who suffer from a Covid-19 Vaccine Injury caused by the administration of an improved Covid-19 vaccine. Injuries covered … Continue reading

Medico-Legal Claims paper by South African Law Reform Commission for comments by 28 February 2022

The South African Law Reform Commission published its discussion paper 154 on medico-legal claims. The extended deadline for comments and submission is now the 28th February 2022. While acknowledging the constitutional right of access to the courts, the paper proposes that a system be developed to deal with public healthcare medico-legal claims commencing at the hospital. … Continue reading

Medical Brief: Ethical duties demanded of health researchers in South Africa

Medical Brief recently published an article written by Donald Dinnie and Rethabile Shabalala. They write that being registered as a health practitioner under the Health Professions Act of 1974 confers certain rights and privileges and corresponding to these rights and privileges are the ethical duties a health practitioner owes to individuals and society. You can read … Continue reading

Rejection of ‘the matter speaks for itself’ doctrine and the Onus of Proof in Medical Negligence cases (Part 3)

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this judgement in the Supreme Court of Appeal the claimant submitted that the hospital breached its statutory duty in that it failed to ensure the proper safe-keeping of the hospital records of the claimant and her cerebral palsied child. The court considered the application of res … Continue reading

Evaluating Expert Medical Evidence (Part 2)

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this claim, alleging that the hospital staff’s negligence during the claimant’s labour resulted in her child’s cerebral palsy, the Supreme Court of Appeal addressed the issue of how to assess expert evidence in a field where medical certainty is virtually impossible. In such circumstances a … Continue reading

Missing Hospital Records and Adverse Inference (Part 1)

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this case, the Claimant sued for damages, alleging that the hospital staff’s negligence during her labour resulted in her child’s cerebral palsy. The Supreme Court of Appeal found that no adverse inference should be drawn because the hospital records are missing. Nor could any negative … Continue reading

Kholina v Health Professionals Councils of South Africa and Others (8523/21) [2021] ZAGPPHC 404 (18 June 2021)

This blog was co-authored by: Rethabile Shabalala, Associate Designate Ksenia Kholina brought a successful application here, to oblige the Health Professions Council of South Africa (HPCSA) to set a date for an examination to enable her to practise as a dentist.  Ksenia was born in Russia but, with her family, relocated to South Africa in … Continue reading