Title page for ETD etd-05252009-215044

Document Type Doctoral Thesis
Author Lerm, Henry
Email henryl@legal-aid.co.za
URN etd-05252009-215044
Document Title A critical analysis of exclusionary clauses in medical contracts
Degree LLD
Department Public Law
Advisor Name Title
Prof P A Carstens Supervisor
  • medical and normative ethics
  • access to the courts
  • inalienable right
  • integrative approach
  • status of the contracting parties
  • unconscionable-ness
  • public interests
  • unequal bargaining position
  • exclusionary clauses
  • doctor/hospital-patient relationship
  • just and fair results in contract
  • inequality in contract
  • inalienable rights in terms of the Constitution
  • exclusion of professional liability
  • legislative reform
  • ethos of contractual freedom versus fairness and r
Date 2009-04-16
Availability unrestricted
This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability arising from the negligent conduct of its staff, resulting in the patient suffering damages. In assessing whether these types of clauses should be outlawed by our courts, this thesis attempts to synthesize six major traditional areas of law, namely, the law of delict, the law of contract, medical law and ethics, international and foreign law, statutory law and constitutional law into a legal conceptual framework relating specifically to exclusionary clauses in medical contracts in South Africa. This thesis highlights systemic inconsistencies with regard to the central issue, namely, whether these types of clauses are valid or not, especially, given the fact that the practice of exclusionary clauses or waivers in hospital contracts has hitherto traditionally been assessed within the framework of the law of contract. The alignment of the various pre-existing areas of statutory and common law with the Constitution highlights that an inter-disciplinary and purposive approach under the value-driven Constitution, brings about a less fragmented picture in assessing the validity of these types of clauses. This approach accords with the new solicitude of the executive, the judiciary, the legislature and academia to transform the South African legal system not only in terms of procedural law but also substantive law. This has resulted in the alignment with constitutional principles and the underlying values to test the validity of these types of clauses, alternatively, contracts.

Whereas pre-constitutionally the assessment of disclaimers in hospital contracts was done against the stratum of antiquated principles, namely, freedom of contract and the sanctity of contract, ignoring values such as reasonableness, fairness and conscionability, post-constitutionally, because the values that underlie the Bill of Rights and which affects all spheres of law, including the law of contract, concepts such as fairness, equity, reasonableness should weigh heavily with the decision-maker. In this regard, broader medico-legal considerations, normative medical ethics and the common law principles of good faith, fairness and reasonableness play a fundamental role in the assessment of contractual provisions, including the practice of disclaimers or exclusionary clauses in hospital contracts. This thesis critically examines how these types of clauses or contracts ought to be adjudicated eventually against the background of such alignment. It concludes that the entering into a hospital contract, in which the patient exonerates a hospital and its staff from liability flowing from the hospital or its staff's negligence causing damages to the patient, would be inconsistent with the Constitution and invalid. In the old order in which traditional divisions of law have been encouraged, a fragmented approach resulted in legal in congruencies which, in turn, created turbulence and a lot of uncertainty. This approach is apposite to that which the new constitutionally based legal system, aims to achieve. The rights in the Bill of Rights which are interconnected and which influences all spheres of law, including contract law, offers a fairer basis upon which, the validity of contracts, or contractual provisions, can be measured than, the pure contract approach. In this regard, although contracts or contractual provisions in the past may have been unfair and unreasonable, the courts, however, refused to strike them down purely on this basis. The law of contract, as a legal vehicle for adjudicating the validity of exclusionary clauses or waivers in hospital contracts, is therefore not ideal. This is primarily due to the antiquated approach the South African courts have always taken in this area of law. The law of delict, statutory law and medical law, standing alone, also does not provide a satisfactory answer. What is needed is an integrated approach in which the traditional areas of law are united and wherein constitutional principles and values, give much guidance and direction. Alternatively, should the unification of the traditional areas of law not be possible in bringing about fair and equitable results, the introduction of legislative measures may very well be indicated.

University of Pretoria 2008

Please cite as follows:

Lerm, H 2008, A critical analysis of exclusionary clauses in medical contracts, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-etd-05252009-215044/ >


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  00front.pdf 762.72 Kb 00:03:31 00:01:48 00:01:35 00:00:47 00:00:04
  01chapters1-3.pdf 961.21 Kb 00:04:27 00:02:17 00:02:00 00:01:00 00:00:05
  02chapters4-5.pdf 785.80 Kb 00:03:38 00:01:52 00:01:38 00:00:49 00:00:04
  03chapters6-7.pdf 1.01 Mb 00:04:40 00:02:24 00:02:06 00:01:03 00:00:05
  04chapters8-9.pdf 1.12 Mb 00:05:11 00:02:40 00:02:20 00:01:10 00:00:05
  05chapters10-11.pdf 1.48 Mb 00:06:51 00:03:31 00:03:05 00:01:32 00:00:07
  06chapter12.pdf 1.17 Mb 00:05:24 00:02:46 00:02:26 00:01:13 00:00:06
  07chapters13-14.pdf 1.33 Mb 00:06:10 00:03:10 00:02:46 00:01:23 00:00:07
  08bibliography.pdf 236.69 Kb 00:01:05 00:00:33 00:00:29 00:00:14 00:00:01

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