In Kite v Malycha (1998) 71 SASR 321 (Kite v Malycha), Justice Perry found a medical practitioner negligent for not informing a patient that a fine-needle aspiration biopsy of a breast lump showed cancer cells. The medical practitioner did not have a system for detecting when patients had not received test results. Part of the medical practitioner’s defence was that the patient did not follow his advice to telephone for the result later the same day and return for review in a few weeks. However, Justice Perry stated in his judgment that ‘[Mrs Kite] was entitled to assume that if the outcome of the testing of the biopsy gave cause for concern, she would be informed’. Thus, he rejected an argument that Mrs Kite contributed to, or caused, her own damage through her failure to carry out the medical practitioner’s advice regarding follow-up.
Because testing for HIV antibody status is often anonymous (i.e. the blood sample is often sent without patient identification, but with a code assigned by the referring practitioner), the judgment in Kite v Malycha establishes that health practitioners ordering tests have a duty to follow up abnormal test results and therefore, must have systems in place to enable them to do so.
Note: in some instances, a patient may request anonymous testing or may refuse to give contact details (or provide false contact details). This should not preclude access to HIV test results. The practitioner should stress to the patient that it is important that the patient re-attend the service to receive the results.
