Book Review: Foundational Principles of South African Medical Law

• Jurisdiction: South Africa
• Citation: (2008) 19 Stell LR 495
• Date: 27 May 2019
• Author: Andra le Roux-Kemp
• Pages: 495-497
• Published date: 27 May 2019

495

booK reViews / boeKresensies

Foundational Principles of South African Medica l Law by Pieter

Carstens and Debbie Pearmain. LexisNexis Durban 2007. xxvii and

1112 pp. ISBN: 9780409 020274. Price 764.81 (softcover)

The increased contact between law and medical science, as well as the

new constitutional disp ensation in South Africa inuenced both the legal and

medical pr ofession t o the extent that new research on the topic was desper-

ately needed. This book by Ca rstens and Pearma in is therefore a well-timed

endeavour. The preface of this volumi nous work brings the following quote

to mind:

“Medical Law used to be fun. All you had to do was read lots of strange American cases, the odd

Commonwealth decision and maybe some English 19th century cases on crime. Then you could

reect that none of these was relevant and get on with the fun of inventing answers.” (Kennedy “The

Patient on the Clapham Omnibus” 1984 (47) MLR 454)

As the authors clearly point out, this is no longer the case. Medical law and

health care law – a valid distinct ion is drawn between these two concepts i n

chapter one – are denitely not a compe ndium of legal principles applied to a

particular context . Rather, they have evolved into an independent body of law

governing a specic are a of legal interac tion.

While ver y little regard was had to skill, knowledge and the education of

physicians in ancient times, the medical profession tod ay is a highly special-

ized discipline and the law has also developed to an extent where it provides

for the c urrent framework in which the med ical science is to operate within

the commu nity and broader social arena ( pages 611–619). The rst reported

incidence of the interaction between law and the medical profession was noted

in England during the reign of Hen ry IV in 1374 (pages 617–619). This case

conrmed that a surgeon would be liable for failure to treat a patient in a

competent ma nner. From these e arly cases to the 21st century, the incide nce

of medica l negligence ca ses and the interact ion between law and medicine

increased t o the level at which we nd it today. The very rst medical negli-

gence case in South Africa is t he Cape decision of Lee v Schönnber g (1877

Buch 136) followed by Kovalsky v Krige (1910 20 CTR 822). Thereaf ter, the

incidence of local medical negligence cases increased rapidly, although not

quite to the extent of America n case law.

Despite the dynamic nature of this particular branch of the law, the increase

in med ical negligence litigat ion (also in South A frica), as well as increased

research on med ical law i n other jurisdictions, relatively lit tle research on

medical law i ssues has actually been conducted in South Africa. A nd as the

authors of th is book rightly point out , relatively few acad emics and other

researchers choose to wr ite on and do research on mat ters with regard to

medical law in South A frica (page 18). It is exactly for th is reason that this

timely work is so welcome.

The book at tempts to provide the rea der with an all-inclusive and d etailed

report on the basic principles under pinning medical law in Sout h Africa. It

(2008) 19 Stell LR 495

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