Prescription of Medical Malpractice Claims in South Africa

Failure to make a medical malpractice claim within the legally prescribed period could mean you don’t receive the compensation you deserve. So what time limits apply, and what else should you know about the prescription of medical malpractice claims?

What is prescription of a claim?

Prescription is a legal concept that refers to a time frame after which a debtor’s obligation to pay a debt no longer exists.

For medical malpractice, prescription law outlines the time frame during which a claim can be made. Once the time period has prescribed, or elapsed, a claim can no longer be instituted.

Why is there a prescription period? Prescription aims to promote “legal certainty, avoid stale claims, and provide a fair and just resolution to disputes”.

The prescription period for medical malpractice claims

Prescription periods are set out in different laws and regulations. The prescription period for medical malpractice claims is governed by the Prescription Act 68 of 1969.

The Act provides that anyone seeking damages for injuries caused by medical malpractice must be made within three years of the incident. In other words, prescription of medical malpractice claims in South Africa is three years.

The time frame allows the patient to discover that medical negligence has taken place. This is not always immediately clear. It can take months, even years, especially for a minor.

Exceptions to the standard time limit

However, while most medical malpractice claims prescribe in three years, there are exceptions to this time limit.

When the prescription period starts later than the time of injury

While the prescription period is three years, this time frame may not always start on the date of the incident.

Legally, this period can be taken from the time when the claimant knows the identity of the party responsible for malpractice and the facts of the claim.

In practice, it can be tricky for a court to determine exactly when this occurred. There are conflicting judgements.

Special exceptions for minors and those who are mentally incapacitated at the time of injury are clearer.

Prescription of claims by minors

The Act provides that all minors injured as a result of medical malpractice are entitled to at least one year from the age of majority (age 18) to institute a claim.

Minors are given the three-year prescription but it varies depending on the interplay of time, awareness of the facts of the case, and age.

In most cases, when a minor’s legal team has sufficient facts to institute a claim and the three-year period of prescription ends before the minor is 18, the victim still has one year from their 18^th birthday to institute a claim.

For example, if a girl is injured when she’s 13, the facts of the case are clear, and the three-year prescription expires when she’s 16, she has one year from the day she turns 18 to institute a medical malpractice claim.

However, if the minor is 17 at the time of the incident and the facts of the case are clear, it must be instituted before she turns 20. That is when the three-year prescription ends.

If the minor is nine months old when the incident occurs and the negligence only becomes apparent when the child is three, that is when the three-year prescription begins. But the child still has one year after turning 18 to institute a claim.

Prescription of claims by those who were mentally incapacitated

The Act also protects people who are mentally incapacitated or under curatorship.

Claims by victims who have “incurable, severe and permanent mental or intellectual disabilities” never prescribe. They are exempt from the three-year rule and a claim can be instituted any time.

A Supreme Court of Appeal (SCA) case clarified this with regards the appointment of a curator ad litem for a person with a permanent mental disability.

Nolunga Mkhwanazi was packing merchandise on high shelves at a Checkers Hyper store in Edenvale. She was lifted metres above the ground in a cage attached to a forklift.

The cage tilted, Mkhwanazi fell to the floor and the cage came “hurtling down”, hitting her on the head. She suffered severe head injuries that caused permanent mental incapacity.

Her condition meant she could not institute a claim on her own. A curator ad litem, Cecil Mafate, was appointed to act on her behalf.

Mafate filed a claim against Shoprite Holdings Ltd, believing it was the liable party. After discovering that it was actually Shoprite Checkers (Pty) Ltd, he instituted a new claim.

Shoprite Checkers’ legal team asserted that the claim had prescribed. The SCA, however, stated that the appointment of a curator does not lift the prescription impediment as the mental disability still existed. The claim could continue.

If a claimant’s mental or intellectual incapacity ends, section 13(1((a) of the Prescription Act states that the prescription period won’t end until one year has passed since the impediment’s cessation.

Special requirements for claims against the state

When a medical malpractice claim is being made against a government hospital or the Department of Health – not an individual or private institution – special time requirements apply.

Within six months of the incident, written notification of your intention to make a claim must be sent to the organ of state in question. Legal proceedings can only be instituted 30 days after this written notification has been sent.

Failure to send this notification requires you to apply to the court for condonation. For your claim to go ahead, you must have a very good reason for the delays.

Medical malpractice claims with DSC Attorneys

At DSC Attorneys, we have extensive experience in handling medical negligence claims against both private and state institutions and individuals.

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 work on a no win, no fee basis. We work on a no win, no fee  basis. Contact us online or call us on 0861 465 879 to arrange a consultation.