Important note: Information in this article was accurate in 2002. The state of the art may have changed since the publication date.
South African Press Association (Johannesburg) - May 8, 2002
The child was stillborn three years ago.
"She was deprived of the right to do whatever she could to prevent the transfer of the virus to her baby," counsel for the woman, identified only as VRM or Ms V, told the court.
Ms V claims that an obstetrician, identified only as Dr E Labuschagne, tested her for HIV without her consent in January 1999. He failed to tell her that the results had come back positive until after her baby was stillborn on April 3.
She claims the doctor told her at her bedside that the child had also been HIV positive, and this had been the cause of death. No consent was given for the child to be tested.
Ms V subsequently lodged a complaint to the Health Professions Council of SA (HPCSA), which found there was no evidence of improper or disgraceful conduct on the doctor's part, and resolved that no further steps be taken.
She is now asking the court to overturn that decision, in order for the matter to be referred to a disciplinary committee.
The woman has asked the court to protect her identity to safeguard her employment and preserve her privacy.
Her legal counsel, Lara Grenfell, argued that the council had failed to execute its task of protecting the public and guiding the profession. Its decision displayed paternalism and capriciousness, and was grossly irregular.
Labuschagne, she said, had failed to live up to the council's guidelines on the management of HIV-positive patients, and should be punished.
Grenfell questioned Labuschagne's statement that he did not tell Ms V of her HIV-positive status because she was merely a month from delivery and he did not want to complicate matters.
He deprived from her the ability to make a decision on the use of anti-retroviral drugs, and on steps she could take to prevent her husband from getting infected as well, Grenfell argued. The husband later tested negative.
Ms V also claims the doctor failed to give her any special care notwithstanding his awareness of her condition. Among other things, he ignored the importance of performing a caesarean section before the onset of labour in a bid to further reduce the chances of the virus being transmitted to the baby.
Reacting to Labuschagne's statement that no counseling facilities were available at the Louis Trichardt state hospital, where Ms V was treated, Grenfell asked the court: "Why didn't he just do it himself? If he was not prepared to counsel her, he should never have subjected her to an HIV test."
Seth Nthai, for the council, argued that the decision to inform a patient of her HIV status remained at the discretion of the doctor.
In this case, Labuschagne took into account the possible psychological consequences of telling his patient.
"It would not have made much difference, given the statistics that of the 60 percent of babies born HIV negative only half remain so," Nthai told the court. "These are the things he took into consideration."
Nthai argued the council was not only there to protect members of the public, but also medical practitioners.
Judgment was reserved.
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SA020505
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