Know your medical rights

2018-05-17 06:01

WE are all familiar with the admin and “paper work” that needs to be completed prior to one being admitted to a hospital or receiving any kind of medical treatment.

At this point, the patient is often not preoccupied with reading the “fine print” or even appreciating that he or she has entered into a legal contract. And yet lurking within the lines of those documents are clauses and provisions which could have profound effect on their rights as patients and as consumers.

A standard clause in medical contracts is the so-called “exclusionary clause. This is a clause in a contract that excludes liability of one of the parties.

Exclusionary clauses have traditionally been accepted as valid and enforceable as it gives effect to the concept of freedom of contract. In other words a party will be bound to the terms and conditions which he or she agreed to.

Upon signature of a medical contract the patient in essence agrees (whether knowingly or not) that neither the hospital, nor its staff including medical practitioners, will be liable for medical malpractice which may result in death or injury, with the exception of cases wherein the patient is able to prove gross negligence. The standard of proof for gross negligence is extremely onerous, most especially within the context of a contractual relationship which is as unequal as that between patient and hospital.

Now in terms of the Consumer Protection Act (CPA) “service” includes any work or undertaking performed by one person for the direct or indirect benefit of another. This will include all medical and or health care services. This means that apart from the rights enshrined in the Constitution and the rights afforded to patients in terms of the National Health Department’s Patients Rights Charter, patients are entitled to the rights set out in the CPA. Application of the CPA will most likely render most widely worded medical exclusionary clauses invalid thus holding hospitals and health care providers to the standard of care expected of them, rather than placing the onus on a patient to prove a level of negligence that is in most cases impossible to prove.

The CPA provides that unfair, unreasonable or unjust contract terms may result in a court setting aside the exclusion clauses that a provider such as a hospital or medical practitioner, seeks to rely upon. The Act lists criteria which would assist in deciding whether any contract term is unfair, unreasonable or unjust. A study of these criteria reveals that the intention of the law is clearly not to exclude liability only in cases of gross negligence, and that with respect to medical contracts specifically, such exclusionary clauses may fall to be invalidated. In addition, certain terms and conditions have to be drawn to the attention of consumers otherwise they too may be set aside. This is particularly so in the case of exclusionary clauses. It is evident from the provisions of the CPA that this onus on the supplier (hospital or health care provider) would not be deemed to have been fulfilled merely by the patient’s signature of the contract.

Despite the provisions of the CPA though, it is common knowledge that patients are faced with an avalanche of forms and disclaimers which need to be signed before one receives any kind of health service. Due to necessity in most instances, consumers feel they have no other option but to sign on the dotted line. Nevertheless it is comforting to note that should the need arise, effective application of the provisions of the CPA will ensure that unfair, unreasonable or unjust clauses lurking within the contract will be invalidated. Thanks to the CPA you now have rights not only as a patient, but as a consumer as well. — Supplied


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