Time Limits on Medical Negligence Claims in South Africa

It’s important to understand that there are time limits on medical negligence claims in South Africa.

If you don’t institute a court action within this time limit, also known as a prescription period, you may miss your chance forever to pursue a personal injury claim.

Prescription periods on medical negligence claims

Different types of personal injury claims have slightly different prescription periods. It’s important to be aware of them if you think you have grounds for a claim.

For medical negligence claims, you generally have to proceed with your claim within three years of the incidence of medical negligence.

However, working out when the prescription period starts can be less clear. In limited cases, a person might be able to claim after the three-year period.

When does the prescription period start on a medical negligence claim?

To find out if you’ve still got time to pursue a medical negligence or malpractice claim, you need to know exactly when the clock starts on the prescription period. This has been known to cause confusion.

In past cases, there has a been a question of when it becomes clear that there was medical negligence, as opposed to when the incident actually took place. It’s not always immediately obvious to the patient that his or her medical procedure or care went wrong.

If there is any choice or confusion as to when the prescription period starts, it’s safest to assume the period starts from the date when the injury was sustained.

Special requirements for medical negligence claims against the state

If your medical negligence claim is against a government hospital or the Department of Health, as opposed to a private individual or institution, certain special requirements apply.

You will need to send written notification of your intention to lay a claim to the organ of state in question. This notification needs to be sent within six months of the incident of medical negligence or malpractice.

Legal proceedings can only be instituted 30 days after this written notification has been sent. If you fail to send this notification, you can apply to the court for condonation. Your claim can still go ahead but you need to have a very good reason.

Exceptions to these special requirements

In some cases, the prescription period for personal injury claims against the state can be extended. These circumstances can include:

• if the claimant is mentally disabled
• if the claimant is a minor (the prescription period then starts on his or her 18th birthday and lasts one year)
• if injury or death occurs sometime after the incident i.e. if death or complications occur as a direct result of an incident well after it occurred.

Getting professional representation for medical negligence claims

Other exceptions or requirements may apply to a medical negligence claim and very few people are aware of all of them. This is why it’s important to have professional legal representation when pursuing a medical negligence claim.

An experienced attorney can advise you on whether or not your claim is viable. An attorney can also make you aware of any exceptions or requirements. This way, you’ll have a much better chance of getting the compensation you’re owed. Under-prepared cases can be dismissed all too easily.