South Africa: Private Or Public Hospitals - Who Cares?

Last Updated: 7 December 2011
Article by Elvis Simaya and Themba Malandela

Personal Injury News December 2011

The general perception among members of the public is that private hospitals provide better care. This assumption is premised on the comfort provided in private hospitals, their cleanliness, and the costs associated with the treatment offered at such institutions. Private hospitals promote this perception with clever marketing and public relations campaigns, where they advertise their newly bought equipment and high standards of care.

On the other hand, public hospitals are entirely run on government funding. They are considered to be the most viable option for the lower income earners and those without medical aid. The perception of public hospitals is that they are run-down by their management, poorly maintained and over-crowded. It must, however, be acknowledged that public hospitals often contain centres of excellence within them, such as the neurosurgery department at Chris Hani Baragwanath Hospital or the Trauma Unit at Charlotte Maxeke Johannesburg Academic Hospital.

The question then is, should the duty of care owed to patients differ between the two institutions, in other words should it be greater in private health institutions as compared to public health institutions?

This is assessed by evaluating the conduct of the medical professionals or the institution giving such assistance to the patient. This conduct may be positive or negligent. Conduct is said to be negligent if the person does not observe that degree of care which the law of delict requires. The standard which is used to determine whether a person was negligent is that of the care of the reasonable person.

A medical practitioner is expected to exercise the degree of skill and care of a reasonably skilled practitioner in his or her field. It was held in the case of Van Wyk v Lewis 1924 AD 438 that a medical practitioner is not expected to bring upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care. In deciding what is reasonable the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. The test for professional negligence is: how would a reasonably competent practitioner in that branch of medicine have acted in a similar situation?

There is no distinction made with regard to services rendered to patients, between private and public practitioners/health institutions in either the legislation (the National Health Act and the Health Professions Act) or in case law.

It was held in the case of Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) that a patient, who consults a medical practitioner in private practice, enters into a contractual relationship with the doctor concerned. It follows therefore, that where a doctor fails to carry out the terms of a contract he or she may be sued for damages resulting from such breach of contract. Apart from the contractual relationship, the doctor also owes the patient a duty of care, which arises in common law. The same applies to a patient who goes to any hospital for medical treatment. A contract arises between the patient and the hospital authority, with the hospital authority being represented by the hospital staff concerned. Therefore, should there be negligence on the part of said hospital staff, then the hospital authority can be held vicariously liable.

In respect of the duty to treat people who present at public hospitals, in the case of Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC) the Constitutional Court held that where there is a scarcity of resources the courts "will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters". In this case, an application for an order compelling a provincial hospital to provide kidney dialysis was dismissed on the basis of lack of resources. Where, however, the public authority has not proved that its resources are so limited that it cannot provide the treatment requested, the court may order it to provide such treatment.

In conclusion we can accept that there are challenges in the public hospitals which include, but are not limited to, overcrowding, underpaid staff, lack of management, corruption and lack of resources. It is also evident that a large part of the financial and human resources for health is located in the private health sector serving a minority of the population. Medical aid schemes are the major catalyst of services in the private sector which covers 16.2% of the population. The public sector has disproportionately less human resources than the private sector, yet it has to manage significantly high number of patients.

Despite these differences, the degree of care and the test for negligence in both institutions remain the same as healthcare professionals are bound by the same common law duty of care to patients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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