How Long Does a Medical Negligence Case Take in South Africa?

It’s difficult to predict exactly how long a medical negligence case will take in South Africa. Cases are complex and rely on expert medical testimony.

Knowing that a medical negligence case will be lengthy shouldn’t stop you from making a claim.

If you’ve been harmed as a result of a medical procedure that didn’t meet accepted standards of practice or was performed without informed consent, you may have grounds for a claim.

In this article, we will look at:

• the time a case typically takes
• the factors that affect the claim’s duration
• the steps in a medical negligence case.

How long a medical malpractice claim typically takes?

It’s common for medical malpractice cases in South Africa to take several years to resolve. Malpractice claims are complex and heavily defended.

Factors affecting the duration of the claims process

Several factors influence the time a claims process takes.

It can take a year or more from a negligent act by a doctor, hospital or healthcare practitioner for an injury to settle down enough for an attorney to begin obtaining the necessary expert and medical evidence to prove your claim.

It also takes time to gather and compile this evidence. Waiting for consultations with suitably qualified medical experts and obtaining essential medical records and reports can take many months.

If a case goes to trial, factors like the availability of independent experts willing to assist, mandatory pre-trial court processes and clogged court rolls can all affect the time a case takes to resolve.

If a defendant offers a settlement, it can reduce the time it takes to finalise a claim. However, it’s not uncommon for a settlement to be offered only after court proceedings have started.

Steps involved in a medical negligence case

Delays in any of the steps involved in a medical negligence case will add to the time it takes for a claim to be finalised.

1. Consult a specialist medical malpractice attorney

Medical malpractice and medical negligence cases are notoriously complex, so the first step is to consult a personal injury attorney who specialises in medical malpractice claims.

These cases are subject to special limitations and rely on expert legal and medical knowledge. It’s vital to have an experienced attorney who knows how to pursue a medical negligence case.

Without an attorney, a claim will take considerably longer and face many more delays.

2. Gather evidence

You and your attorney will work together to gather the necessary evidence to support a medical malpractice claim.

An experienced attorney knows how and where to gather expert testimony and what’s needed. Experience expedites what it still a long and laborious process. Delays in gathering expert testimony will delay the case.

Evidence that needs gathering usually includes:

• details of what occurred
• witness statements
• medical records
• expert medical testimony
• records of costs incurred due to injury caused by the malpractice.

3. Issue a summons

Your attorney will issue a summons to the party you have a claim against.

Initially, the defendant usually denies allegations of medical malpractice. However, once the defendant has finished his or her investigations, he or she may choose to offer a settlement.

If no settlement is offered, or you don’t accept an offer, the matter goes to trial.

4. Defending a medical malpractice claim in court

As a rule, a lengthy pre-trial process is involved before you are permitted to obtain a trial date in South Africa – and the date can then easily be over a year away.

Once a case goes to court, a presiding judge hears the evidence.

Almost without exception, medical malpractice litigation involves two phases. The first is to establish liability. The second is to the quantify the losses directly attributable to the practitioner’s negligence.

Expert medical testimony is key during the first phase. It is necessary to prove that accepted standards of care were breached and led to the injury.

This will involve examining in detail either the procedure that went wrong or some other failure in medical procedure, such as a failure to diagnose your condition.

A judge determines whether the plaintiff has presented sufficient evidence to sustain a finding that the medical practitioner provided treatment that did not meet the accepted standard of care and that this caused damage and proven losses.

If the judge rules in favour of the plaintiff, a further, separate hearing is usually required to determine the amount of the compensation that’s payable.