Hospital exclusion clauses limiting liability for medical malpractice resulting in death or physical or psychological injury: What is the effect of the Consumer Protection Act?

Abstract

In 2002 the Supreme Court of Appeal ruling in Afrox Healthcare Beperk v. Strydom held that the common law allows hospitals to exclude liability for medical malpractice resulting in death or physical or psychological injury – except in the case of gross negligence. The effect of this judgment has now been superseded by the provisions of the Consumer Protection Act of 2008, which came into effect in March 2011. The Act states that unfair, unreasonable or unjust contract terms are prohibited and that certain terms and conditions have to be drawn to consumers’ attention and cannot be buried in the small print.
It is argued that as a result of the Act, exclusion clauses that unfairly, unreasonably or unjustly protect hospitals from liability for death or bodily or psychological injury caused by the fault of their staff, may be declared by the courts to be invalid and not binding on consumers. They may also be regarded as unconstitutional.