Pretoria University Law Press (PULP)

PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria

The application of the doctrine of a loss of a chance to recover in medical law

The application of the doctrine of a loss of a chance to recover in medical law
by Pat van den Heever
2007
ISBN: 978-0-9802658-4-2
Pages: vi 84
Print version: Available
Electronic version: Free PDF available

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About the publication

In this book, Pat van den Heever assesses the application of the doctrine of a loss of a chance in medical negligence cases in South Africa. He emphasises the difficulties often encountered by courts when adjudicating on causation in medical negligence cases in the face of multiple causation theories. On the basis of a thorough review of the position regarding the doctrine of a loss of a chance in The United States of America, Australia and Britain, he proposes for South Africa a de lege ferenda loss of chance model for application in medical negligence matters.

As the first ever major work dealing with the application of the doctrine of a loss of a chance in medical negligence matters in South Africa, this book is of interest to the courts and the legal profession generally, legal academics working in the field of medical law and the law of delict, health care providers, and members of the medical and allied professions, their councils, associations and protection societies.

"This publication is the first authoritative and substantive research on the doctrine of a loss of a chance in the context of medical negligence in South African medical law ... Dr van den Heever's thorough and comprehensive comparative approach and discussion of the doctrine here, is commendable ... [T]his publication is indeed timely!"

- Pieter Carstens, Professor of Medical Law, University of Pretoria

About the editor:

Advocate Patrick van den Heever is a member of the Cape Bar and is an Extraordinary Professor of law in the Department of Criminal and Medical law at the University of the Free State.


Table of Contents

Foreword
Acknowledgments

  • Chapter 1 General introduction
  • Chapter 2 Origin and history of the doctrine
    2.1 The origin of the doctrine of a loss of a chance
    2.2 The historical development of the doctrine
  • Chapter 3 Development of the doctrine
    3.1 Philosophical approaches to causation in loss of chance cases
    3.2 Legal opinion relating to the application of the doctrine in cases of clinical negligence
    3.3 Further considerations in favour of recognition of the doctrine of loss of a chance
    3.3.1 A chance has value
    3.3.2 Autonomy
    3.3.3 Fairness based on difficulty of proof
    3.3.4 Deterrence
    3.4 The development of the doctrine in cases of clinical negligence in England, Australia, The United States of America, Canada and South Africa
    3.4.1 England
    3.4.2 Australia
    3.4.3 The United States of America
    3.4.4 Canada
    3.4.5 South Africa
  • Chapter 4 Current status of the doctrine
    4.1 An analysis of the current status of the application of the doctrine to clinical negligence cases
    4.2 England
    4.3 Australia
    4.4 The United States of America
    4.5 Canada and South Africa
    4.6 Synopsis
    4.6.1 Introduction
    4.6.2 England
    4.6.2.1The so-called ‘injury within the scope of risk’ cases
    4.6.2.2The breach of a duty to warn
    4.6.2.3The ‘dimunition of prospects’ approach
    4.6.3 Australia
    4.6.3.1The breach of a duty to warn
    4.6.3.2The position after Rufo
    4.6.4 The United States of America
    4.6.5 Canada
    4.6.6 South Africa
  • Chapter 5 Recommendation and conclusion
    5.1 A de lege ferenda loss of chance model for universal application to clinical negligence actions
    5.2 Introduction
    5.3 Should the claimant’s action be grounded in contract or tort
    5.4 Standard of proof
    5.5 The roll of medical statistics in evaluating the chance
    5.6 Quantification of damages
    5.7 Conclusion

Bibliography
Register of cases
Index


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