Medical Malpractice Claims

Medical practitioners have a duty to obtain patients’ informed consent and to provide care of a reasonable standard. If a failure to meet accepted standards results in harm to a patient, it may be grounds for a medical malpractice claim.

What is medical malpractice?

Medical malpractice – also called medical negligence – is improper or negligent treatment of a patient by any healthcare professional. It occurs when medical treatment or care fails to meet accepted standards of practice.

Medical malpractice can involve negligent acts. Examples are misdiagnosing a condition, surgically removing the wrong organ or administering the wrong type or dose of medication.

It can also involve an omission, or failure to act. For instance, it might involve failing to provide proper wound care. Other examples are failing to request necessary medical tests or failing to intervene to address complications in a childbirth.

Failing to obtain a patient’s informed consent before performing a procedure may also constitute malpractice.

What to do if you’re a victim of medical malpractice

If you or a close family member is a victim of medical malpractice, it’s important to contact a medical malpractice lawyer.

A suitably qualified legal professional can provide you with important advice and represent your interests in a medical malpractice claim.

It’s also possible to file a complaint with the Health Professions Council of South Africa (HPCSA). This won’t result in you receiving compensation for harm or losses you’ve suffered. However, it could lead to disciplinary action being taken against the negligent party.

Who can you sue for medical negligence?

Medical malpractice claims can be brought against individual medical practitioners – from GPs to anaesthetists, paediatricians, plastic surgeons, oncologists or other specialists.

They can also be filed against hospitals and/or against the state.

If negligence by nurses or other hospital staff results directly in harm to a patient, the hospital as a whole can be held vicariously liable.

In the case of a private hospital, the body responsible for running the hospital can be sued for malpractice.

In the case of a state hospital, the state itself (or the state representative for the relevant province) can be held liable.

In South Africa, special requirements apply to personal injury claims against the state, including medical malpractice claims against state hospitals.

Compensation you can claim

A victim of medical malpractice can claim compensation in five areas, referred to as “heads of damage”:

• past hospital and medical expenses
• past loss of earnings
• future hospital, medical and supplementary expenses
• future loss of earnings and interference with earning capacity
• general damages for pain, suffering and loss of amenity.

A different amount of compensation may be claimed in each of these areas.

In addition, a family member of a breadwinner who has died as a result of medical malpractice can claim funeral expenses and loss of support.

What to expect from the medical malpractice claims process

A medical malpractice claim typically takes several years to conclude.

Even where the facts of a claim appear fairly straightforward, it’s typical for a case to take three to five years to finalise. Some claims take twice that long.

The claims process involves:

• collecting and evaluating medical records
• obtaining expert medical opinions
• issuing a summons with particulars of the claim
• waiting for the defendant’s plea (which usually denies all allegations of negligence)
• applying and waiting for a trial date
• through evidence and expert medical opinion, proving the alleged negligence in court.

A settlement may be offered at any point in the claims process. However, it’s best not to count on this occurring – especially not early on in the process.

It’s important to have sound legal advice so you don’t accept a settlement offer that’s unreasonably low.

What’s needed for a successful medical malpractice claim?

In medical malpractice/negligence claims, the burden of proof lies with the claimant.

Through evidence and expert medical opinion, the claimant’s legal team must prove that:

• medical malpractice occurred and this led directly to injury or harm, resulting in significant losses (such as considerable pain and suffering or disfigurement, medical expenses and loss of income) to the patient, or
• the patient did not provide informed consent for a medical procedure, and this procedure resulted in serious harm or injury.

How a medical malpractice attorney can help

An attorney who specialises in medical malpractice claims can provide guidance on:

• the validity, or likely success, of your claim
• the party or parties against which to pursue your claim
• applicable limitations, including relevant prescription periods (time limits), on the claim
• details of medical experts who can provide appropriate medical testimony
• compiling other evidence for supporting the claim
• what will be involved in the claims process.

The medical negligence attorney will also provide you with expert legal representation in court and/or settlement proceedings.