Medical guidelines in South African courts: exploring their role in medical negligence matters

Abstract

This chapter analyses South African courts' approach to clinical guidelines in medical negligence case law. It is widely accepted that guidelines 'do not have the status of law' and this was recently confirmed by the Western Cape High Court. However, this statement conveys very little about the subject and there is a need to explore this issue because various healthcare providers have been found negligent for failing to comply with medical guidelines and this suggests that guidelines hold some value in law. In this chapter I offer an overview of what the case law has to say on the subject and I explore the role of guidelines in the context of proving reasonable foreseeability and preventability of harm. Further, I tease out some underlying issues that might impact decision making such as conflicting expert medical opinions, conflicting positions between healthcare professionals and medical guidelines, the role of limited resources, and the acceptability of foreign medical guidelines within the South African context. The chapter also analyses indications that South African courts are, in some instances, swayed by the privileged position of doctors in society or by the influential nature of medical knowledge (a form of authoritative knowledge). To this end, courts are found to 'bend over backwards' to avoid a finding of negligence where guidelines have been ignored and the chapter explores this issue in detail.