MEDICAL NEGLIGENCE CLAIMS

Medical negligence refers to a negative consequence of a medical treatment that could have been avoided by the medical practitioner. The Health Professions Act 56 of 1974 outlines South African medical law and it should be consulted by any person who suspects a case of medical negligence.

What is medical negligence?

Imagine breaking your leg and requiring surgery for it to heal correctly. After being admitted for surgery, the surgeon guarantees you that it is a routine procedure and that your leg will heal perfectly. However, after the surgery, you have no feeling in your one foot. It is possible that a nerve has been damaged. If the surgeon is the primary cause of this consequence, for example he/she was careless, then it is considered as medical negligence.

It is worth noting that a medical practitioner cannot be held responsible for unforeseen complications that arose from unavoidable treatments. If complications arose from unknown sources, even though the practitioner has performed the treatment perfectly, he/she cannot be held responsible.

Any complication that arose after a treatment could be a result of negligence. If you suffer from an unusual complication that you suspect arose from medical treatment, it is advised to get a second opinion. If you are certain that the medical practitioner was negligent, you should not wait too long before you consult a medical malpractice lawyer, because your case can weaken over time; witnesses may forget what happened and documents can go missing. 

How is it decided who was negligent?

If you believe that you have suffered because of negligence by a medical practitioner, you have the right to lay a claim in court against him/her. A Judge will hear arguments from both legal representations and then decide whether or not negligence has occurred. Usually other medical practitioners are consulted to provide their expert testimony for both cases. The Judge must evaluate all the evidence and then pass judgment on the claim.

1. In South Africa, the Judge must decide first whether or not the medical practitioner is liable, and then to what extent the patient must be compensated.

2. In extreme instances, a medical negligence case can turn into a criminal case if it is proved that the medical practitioner is guilty of criminal conduct.

Sometimes the medical practitioner may be completely accountable, for example he/she could have performed the medical procedure incorrectly out of ignorance. It could also be decided that the company is completely responsible, because it did not provide the adequate equipment for the procedure. A Judge may decide that both parties are guilty of negligence and then hold them equally or partially responsible.

How does the claiming process work?

If you are no longer in need of medical attention, the first person you should get in touch with is your legal adviser. Then it is necessary to inform the Health Professions Council of South Africa to lodge a complaint.

Your legal adviser will request all your medical records to review the evidence so he/she can send a letter of demand to the medical practitioner. The response to this letter will determine whether or not the matter will go to trial; the practitioner may decide to rather settle the matter out of court and to meet the demands. If the matter does go to court, you may be required to testify.

If your claim is successful, the Judge may grant you compensation in an amount that is equal to what he/she considers fair; this may include the legal costs, loss of income and any other cost you incurred.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

• Claimhelp.co.za. (2017). Medical Negligence Claims – South Africa | Medical Negligence in SA | Claim Help. [online] Available at: https://www.claimhelp.co.za/medical-negligence/ [Accessed 22 Jun. 2017].