When people think of medical negligence, they picture an operation that went wrong: the wrong procedure, a surgical error, a missed diagnosis. Those are real claims. But there is another kind that people rarely recognise, even when it has happened to them. It arises not from how the treatment was done, but from whether you truly agreed to it in the first place.

Consent has to be informed

Under South African law, a patient has the right to make decisions about their own body. For that right to mean anything, your agreement to treatment has to be an informed one. You must understand what is proposed, why it is proposed, and the material risks that come with it, before you agree.

Signing a consent form at the hospital reception is not, on its own, informed consent. A signature records that something was agreed. It does not prove that you were actually told what you were agreeing to. If the conversation about the risks never happened, the form does not fill the gap.

What counts as a “material” risk

Your doctor does not have to list every theoretical risk in a medical textbook. The law focuses on material risks. A risk is material if a reasonable person in your position would attach significance to it, or if your doctor should reasonably have been aware that you, specifically, would want to know about it.

That second part matters. A risk that might be minor to one patient can be decisive for another. A pianist facing hand surgery, a singer facing throat surgery, a person whose job depends on their eyesight: each may regard a particular risk as something they absolutely needed to weigh before saying yes. A doctor who knew the patient’s circumstances cannot treat that risk as trivial.

Why this is its own kind of claim

Here is the part that surprises people. If you were not given the information you needed, and you would not have gone ahead had you known, the treatment can be legally wrongful even if it was performed perfectly competently.

In other words, the surgeon may have done everything right in theatre, and you may still have a claim, because you were never properly in a position to agree to the risk that then materialised. The wrong is the failure to inform, not the slip of a scalpel. This is a separate basis from the usual “the treatment was botched” claim, and it is often overlooked.

When consent is not required, or is limited

The rule is not absolute. In a genuine emergency, where you cannot consent and treatment cannot wait, doctors may act to save life or prevent serious harm.

There are also narrow situations where the law and professional ethics address how and when information is given. These are exceptions, not loopholes, and they are far narrower than hospitals sometimes assume.

How to tell whether this applies to you

Ask yourself three questions. Were the real risks of the procedure explained to you, in language you understood, before you agreed? Would you have made a different decision if they had been? And did one of those un-mentioned risks actually come to pass?

If the answer to those is yes, it is worth having the matter looked at, whatever the consent form says. These claims turn on the records and on what was and was not said, and like all medical claims they prescribe, so the position is best assessed sooner rather than later.

Tzvi Brivik (Author)
Director at Malcolm Lyons & Brivik Attorneys Inc.

Malcolm Lyons & Brivik has acted for victims of medical negligence for decades. If you believe you were not properly informed of the risks of a procedure, or were harmed by negligent treatment, contact us for an assessment.

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