Max Mosselson
AS a disinterested observer it seems that the recent “acid-burn case”, as it has come to be known, has four important repercussions for the South African legal system, apart from the individual participants in the drama.
As any legal practitioner with experience in the field will confirm, there is an almost total blanket of silence over any matter which may give rise to a medical malpractice suit, as brought by Bernadette Gibson against her gynaecologist, Dr Joshua Berkowitz. It is exceedingly difficult, if not impossible, to obtain an opinion even vaguely critical of a colleague from a member of the medical profession when the question of negligence of one of their members is at stake.
Indeed, the Medical and Dental Council findings in this case exonerated Berkowitz in its disciplinary inquiry, even though the court subsequently held him guilty of negligence.
What the case may have done, through the wide media attention and resulting public spotlight brought to bear on it, is make the medical profession more reluctant to support victims of medical malpractice. Practitioners may, in future, be more reticent and unwilling than ever to criticise their colleagues in case they are required to give evidence in court. This can only be to the detriment of the public in general as it will allow incompetent or careless practitioners to continue maiming and damaging patients. Thus they practise with virtual impunity from a damages claim or, in fact, from fear of detection.
This is a most unwelcome development in our public life which, at present, calls for greater openness and accountability than the medical profession is prepared to grant the fee-paying public of South Africa.
The second repercussion of the case reflects on the legal profession and the debate between advocate and attorney professions. It seems that the presentation of the plaintiff’s case in this matter gives ammunition to the argument for the retention of the split bar and the reservation of supreme court work for advocates. Coming as it does so soon after the granting to attorneys of rights of appearance in the supreme court, this case has left little room to argue with those who maintain that attorneys are not trained or experienced enough to argue a matter through trial.
The skills and training needed to bring a matter to the courthouse doors are not the same skills needed to lead evidence, cross-examine witnesses and convince the judge of a client’s point of view inside the court. Unfortunately the outcome of this matter seems to reaffirm this view. This is not to say that advocates don’t lose cases for their clients. Indeed they do, but errors which were made by the plaintiff’s attorney one hopes should not have been made by one more skilled in the art of trial advocacy.
Another aspect which is troubling is the damage the matter may have done to the system of contingency fees which is relatively new and somewhat controversial in South Africa. The case illustrates the very danger that the opponents of the contingency system use to attack it. Here the legal representatives of the claimant have a vested interest in the outcome of the matter and being human and somewhat fallible they may lose sight of the trees in order to extract maximum wood from the defendant.
A certain level of professional perspective is lost when the legal representative has his or her own financial well-being to consider. He or she may be closed to what is in the best interest of the client, which may not be in the best interest of the legal representative. Put another way, professional distance that a trained, dispassionate individual should bring to a case may indeed be lost by the prospect of a large pay cheque. But proponents of the contingency system say it keeps lawyers on their toes. The result in this case has called the system itself into question and it may well be that the interests of other well-deserving —but poor — litigants have been prejudiced by this unfortunate case.
A fourth aspect worth considering in the light of the judgment concerns the value of awards made in this country for damages. This matter highlights the low damages awarded to victims (mostly of motor vehicle accidents) for life-destroying injuries and disfigurement. How does one value a limb or compensate someone for the loss of sight or, worse still, compensate a brain-damaged wreck who emerges from an accident unable to resume his or her previous existence?
Some argue, with a certain justification, that victims should be given as much as possible in the form of damages to try and replace what has been lost, while others argue that one cannot fully compensate anybody for such loss and the award is meant as a token.
In South Africa, unlike the United States, we do not have a system of punitive damages whereby victims are compensated by awards designed to punish wrong- doers (or their insurers) by making an example of them, and acting as a warning to others who act negligently when lives are at risk. This case seems to have had the potential to set the precedent for such an award. Certainly the victim and her attorney believed it to be so. The judge, however, was not persuaded that he was entitled to punish the act of negligence in such a way, despite overwhelming sympathy for the plaintiff and revulsion at her wounds, both in the court and the media.
Thus we have a sad case which may leave as deep a scar on our body politic as the scars left on the body and psyche of Bernadette Gibson.
Max Mosselson is a Johannesburg attorney