Press Release

Court rules doctor committed assault by operating without informed consent

Press Release

The Cape High Court has ruled that a surgeon's failure to obtain an informed consent from a patient before surgery amounted to an assault on the patient's physical integrity.

In the judgement delivered yesterday, Justice James Yekiso said he was bound by a 1994 precedent that a medical practitioner had committed an assault if he or she administered treatment to a patient without the patient's informed consent.

This included being informed of the material risks, alternative treatment and complications.

Judge Yekiso made the comments in a judgement in favour of 53 year old Milnerton man, James Oldwage, who sued a Panorama Medi-Clinic vascular surgeon, Henk Louwrens, for R3.1 million damages, after he performed the wrong operation on him in June 2000.

The court has not ruled on the amount of damages.

On June 7, Louwrens performed an angiogram on Oldwage and advised him to undergo a by-pass operation, which was performed the next day.

After the operation, the pain persisted and on June 14, Oldwage consulted a neurosurgeon who diagnosed a prolapsed disc as the cause of pain.

Oldwage approached the Cape High Court and alleged that Louwrens failed to examine him properly or to procure his informed consent by failing to advise him of possible consequences.

Judge Yekiso said he was unable to find that Oldwage had been properly counselled by the surgeon or that alternative procedures were discussed with him.

Oldwage was represented by Pat Gamble, SC, instructed by Pat van der Heever of Millers Inc, and Louwrens was represented by Roelof van Riet, SC, instructed by MacRobert Inc.

James Oldwage's legal costs are underwritten by Constantia Insurance Company under a policy issued by Legal Protection Services.

February 21, 2004 - Cape Argus

By Fatima Schroeder