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Claiming for Medical Malpractice: The Legal Process and What to Expect

Claiming for Medical Malpractice: The Legal Process and What to Expect
July 14, 2017 gnuworld
claiming for medical malpractice

If you’ve been the victim of medical negligence in South Africa and you wish to proceed with a claim for medical malpractice, it’s good to know what the legal claims process involves and what to expect.

Proceeding with a claim for medical malpractice

Before you proceed with a claim, it’s highly recommended that you consult a personal injury attorney who specialises in medical malpractice claims.

The attorney can help determine the validity of the claim and advise you on what to expect. If you choose to proceed, the attorney can assist in gathering the evidence you’ll need to prosecute the claim, including medical records, expert opinions and, if relevant, witness statements.

Time limits for medical malpractice claims

It’s important to note that in South Africa, you generally have to proceed with a medical malpractice claim within three years from the time when the alleged medical negligence occurred.

However, the issue of prescription of claims is complex and, in some cases, a person may still be able to claim after the three-year period. An attorney can advise you on the validity of a claim, given applicable time limits.

Also note that in claims against the State, a statutory notice has to be sent to the correct state department, notifying them that a possible claim may be instituted. Again though, it may still be possible to institute a claim if no notice was given, so it’s best to contact a qualified attorney for advice.

Summons and settlement

Once you and your attorney have gathered the necessary evidence to support your claim, the attorney will issue a summons to the practitioner or medical institution that you’re claiming from.

The defendant will typically deny the allegations of medical malpractice at first, but may decide to offer you a settlement later, once they have concluded their own investigations into the matter.

If you accept the settlement offer, the matter will not go to court. If you’re not offered a settlement or do not accept the offer, the matter will go to court.

Going to trial

If no settlement is reached, and if your attorney believes that the defendant’s defence is unlikely to succeed, your case will go to trial. Based on the evidence presented, the presiding judge will decide whether the claim is valid and, if the claim is successful, determine the compensation you’ll be awarded.

How much will it cost?

This depends on several factors, including the complexity and duration of the case, and who you choose to represent you.

Some firms, including DSC Attorneys, work on a contingency basis, meaning that fees are payable if your claim succeeds. The amount an attorney can charge if your claim is successful is governed by the Contingency Fees Act, 1997.

How long will it take?

This depends on whether you settle out of court or the case goes to trial. It can take a substantial amount of time to collect evidence, obtain expert opinions, draft and issue a summons, wait for a response from the defendant, apply for a trial date and go to trial.

Unless a settlement is reached, you can expect a minimum of two or three years from the date of instituting your claim to the time when it’s finalised.

Finding a medical malpractice attorney to represent you

At DSC Attorneys, we specialise in personal injury law and our medico-legal team has extensive experience in handling medical malpractice claims.

We can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve. We also work on a “no win, no fee” basis.

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