![]() ![]() On appeal, Mrs Sibisi relied on her rights to have been informed of the risks of vaginal delivery based on the estimated and actual weight of the baby. The High Court found in favour of Dr Maitin in that his conduct was not negligent and further found no need to develop the common law. Mrs Sibisi also asked the court to develop the common law in line with the constitutional rights to bodily integrity and autonomy by establishing that the test for whether a doctor has obtained a patient’s informed consent is whether, a patient in the position of the plaintiff would have elected not to undergo the procedure and instead elect another one. It was pleaded further that as a result of Dr Maitin’s negligent conduct, Yandiswa had suffered a right brachial plexus palsy that had led to her requiring continued medical treatment. She therefore alleged that she had not provided Dr Maitin with her informed consent, as he had not informed her of the inherent risks associated with her procedure. She also alleged that Dr Maitin should have foreseen the risks of vaginal delivery given the size of the child. Mrs Sibisi alleged (among other arguments) that Dr Maitin had a duty to inform her prior to inducing labour of the material risks and complications associated with vaginal delivery and of alternative procedures, such as the option of undergoing a Caesarean, which may have minimised the risks. ![]() As a result of this injury Yandiswa is disabled and has very little movement of her right arm, and the effect of the injury is that the root of the damaged nerve has caused her to have a sunken eye. Yandiswa was diagnosed with a right brachial plexus palsy. After she was born and Dr Maitin noticed that Yandiswa’s right shoulder was not moving, he called the relevant experts to attend to the child. Dr Maitin employed the “McRoberts” manoeuvre, which is used only in an emergency situation when the lives of mother and baby are at risk. Her anterior shoulder was stuck and would not pass through the pelvis without assistance (shoulder dystocia). After a long and difficult labour, Mrs Sibisi was ready to give birth. Mrs Sibisi was admitted into hospital and her labour was induced. The doctor estimated Yandiswa’s weight at approximately 4kg, which is considered to be a large baby. Mrs Sibisi saw Dr Maitin a week after her due date when she was very uncomfortable. He had attended to her when she fell pregnant with Yandiswa in 2006. Mrs Sibisi had been a patient of Dr Maitin since the birth of her first child in 2001. Mrs Sibisi sued her obstetrician and gynaecologist, Dr Maitin, as a result of damages suffered by her daughter Yandiswa. The case of Sibisi NO v Maitin (311/13) ZASCA 156, recently handed down by the Supreme Court of Appeal, has highlighted that the medical aspect of informed consent, combined with points of law, may be more complicated than initially anticipated. Informed consent is an aspect of medical law that would appear to be straightforward, however, it has left much room for interpretation and determination as to what exactly is expected on the part of doctors. Medical malpractice claims are rapidly becoming more prevalent and litigious, which requires our courts to provide clarity as to the duties and obligations of both medical practitioners and their patients. Informed consent has recently become a hot topic among medical practitioners and their insurers and attorneys alike. Hogan Lovells Publications | December 2014 The doctor’s duty to inform ![]()
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