Exclusionary clauses have long formed part of the large volume of contracts that legal professionals deal with on a daily basis. Legal professionals themselves have no doubt been apprehensive about signing such clauses in relation to their own health and well-being.
The hospital exclusionary clause (as well as the ones that may be required for surgeons and anaesthesiologists) has with time become the norm in hospitals.
The purpose of this article is to explore if the Consumer Protection Act 68 of 2008 (CPA) will influence how the courts will look at exclusionary clauses in all contracts, and in respect of hospitals and doctors in particular.
Background
Exclusionary clauses in the form of hospital exemption clauses are mainly used in the private health care sphere and seek to protect the hospital (or doctor) from personal liability arising from negligence that will cause the patient harm. In my view, such exclusionary clauses are problematic not only for the patient but also for the doctor as they seem to go against the grain of the Hippocratic Oath.
