Either patient or doctor, keep records in case of litigation


April 1, 2019, was certainly not a day for fools. The Supreme Court of Appeal gave judgment in the case of Beukes v Smith (211/2018) [2019] ZASCA 48), for a surgeon whose information to his patient was called into question.

The decision really highlights the value of keeping proper records of discussions leading to an informed consent, to avoid protracted legal proceedings.

According to the Health Professions Council of SA's ethical guidelines, informed consent is: "Patients must be given sufficient information, which they can understand, to enable them to make informed decisions about their care.

"This is what is meant by an informed consent."

Medical treatment cannot be provided in the absence of consent. Our courts have held that, to give proper informed consent, a patient must be informed of all material risks associated with the treatment.

To give proper informed consent, the patient must know, appreciate and, understand the nature and extent of the harm or risk.

Smith performed a laparoscopic hernia repair on Beukes.

She sued him for damages, alleging that he had negligently failed to provide her with sufficient information which caused her to give an uninformed consent to laparoscopy during which her colon was perforated, and as a consequence of which she suffered complications and damages.

Beukes lost in the Gauteng division of the high court in Pretoria. The appeal was against that judgment.

After having consulted the referring doctor's report and radiological reports, Smith's recommendation was that the laparoscopy would be the best option for Beukes under the circumstances.

The laparoscopy was performed by Smith on February 23 , 2012. Beukes was discharged from hospital on 28 February 2012.

Three days post-discharge, Beukes was re-admitted to hospital with complications associated with a perforated colon.

She underwent three further surgical procedures and was hospitalised until 19 April 2012.

According to Smith, Beukes gave him informed consent orally on February 22 , 2012, after he had consulted with her and explained the nature of each of the two options available, being laparoscopic surgery and the laparotomy, and the material benefits and risks associated with each.

He had informed her that, in his opinion, the laparoscopy was the better option in the circumstances. He also testified that she had signed a written consent shortly before the operation on 23 February 2012 which formed part of the record.

Beukes, on the other hand, denied that the doctor had explained both procedures to her.

Fortunately for Smith, the Appeal Court found no basis upon which to overturn the factual finding by the trial court that Smith's version was probable and that of Beukes was not.

However, Smith was unfortunately subjected to lengthy cross-examination from which he might have been spared had there been a written or other recordal of his explanation, discussion and advice leading to the informed consent.

Keeping record not only protects the patient which is primary. It also protects the practitioner and may well avoid the risk of becoming embroiled in costly and lengthy "he said - she said" debates.

- Swaine, is a partner at Webber Wentzel

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