SCA dismisses patient’s appeal over informed consent

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SCAA North West surgeon has been vindicated by a Supreme Court of Appeal (SCA) ruling, which dismissed a patient’s legal challenge that he did not explain surgery options available to her and was therefore responsible for the pain she had experienced.

Smith, who was described in the judgment as a “caring and diligent doctor”, afterwards chose to waive his right to pursue costs because of difficult financial circumstances of the plaintiff.

According to a Cape Times report, Rabia Beukes had in 2012 been referred to Dr Samuel Smith at the Life Anncron Hospital in Klerksdorp after she complained of abdominal pain and swelling. According to court papers, Smith had admitted Beukes in February 2012, and two days later he performed a laparoscopic hernia repair on her. After Beukes was discharged, complications arose, leading to her being readmitted. Smith had then performed three more surgical procedures, and after that she had seen another doctor.

The report says in 2014, Beukes set out to claim damages from Smith and the hospital, alleging that the laparoscopy had caused a further hernia; and that Smith had failed to inform her that the hernia could also be repaired with open surgery instead of a laparoscopy. Such information, Beukes had alleged, would have helped her in making a choice between the two operations. But Smith argued he had explained the different procedures to Beukes, and the risks in both.

The report says Smith’s advice at the time to Beukes was that laparoscopic surgery was preferable for her, mainly because of her weight.

The High Court had initially dismissed Beukes’s claim and found she had not been a reliable witness.

The report says referring to the consent the consent Beukes had given for the laparoscopy, SCA Judge Nambitha Dambuza said it appeared to have been an informed decision. “An entry made in Beukes’s hospital records at 8.30pm on February 22, 2012, shows that she was ‘aware of the diagnostic procedure’ that was to be performed on her the following morning. This suggests that there had been a more substantive discussion between her and Dr Smith than she was willing to admit.

“Nothing in the medical records contradicted Dr Smith’s evidence.

“On the other hand, a response by Beukes during cross-examination that she had lost a lot of memory is indicative of her poor recollective faculties.

“Consequently, there is no basis to overturn the factual finding by the trial court (High Court) that Dr Smith’s version was probable and that of Beukes was not,” Judge Dambuza said.

The report says Judge Dambuza also highlighted the responsibility of medical practitioners to provide sufficient information to patients. “I interpose to state that it was never Beukes’ case that she was unable, because of medication or otherwise, to appreciate what was being communicated to her by Dr Smith. Her case was that she was never fully informed of her options and the risks and benefits.”

Cape Times report
Judgment


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