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

claiming for medical malpractice

Below we outline what to expect from the legal process when claiming for medical malpractice in South Africa, including time frames, stages in the process and costs.

Proceeding with a claim for medical malpractice

Claiming compensation for medical malpractice involves instituting a personal injury claim. This type of claim is complex and can take many years to be resolved.

The legal process may require stamina. However, it can result in much-needed financial compensation and justice for victims.

Sometimes, it also prompts corrective steps that help protect others from similar medical negligence in future.

Consulting a suitable attorney

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

The attorney can:

  • determine the validity of the claim and advise you on what to expect
  • assist in gathering the evidence you’ll need to prosecute the claim (including medical records, expert opinions and, if relevant, witness statements)
  • ensure all requirements associated with the legal claims process are met
  • represent you in court and/or settlement proceedings.

If you’ve been the victim of medical negligence in South Africa and you’re considering claiming for medical malpractice, contact us at DSC Attorneys for expert legal advice and representation.

Time limits for medical malpractice claims

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 medical malpractice claims is complex. 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 within six months of the incident occurring. This notifies the relevant department that a possible claim may be instituted.

Again though, it may still be possible to institute a claim if no notice was given. It’s best to contact a qualified attorney for advice.

Issuing a summons

Once the necessary evidence to support a claim is in place, your attorney will issue a summons.

This is delivered to the defendant – the practitioner or medical institution from which you’re claiming compensation.

Settlement offers for medical malpractice claims

At first, a defendant commonly denies allegations of medical malpractice.

Settlement offers are more likely to be made later, after the defendant concludes their own investigation into the matter.

If you accept a settlement offer, the matter will not go to court. If you’re not offered a settlement or choose not to accept an offer, the matter may proceed to court.

Going to trial

If no settlement is reached and your attorney believes that you have reasonable prospects of success, your case will go to trial.

Based on the evidence presented, the presiding judge will decide whether the claim is valid. If the claim is successful, the judge will also determine the compensation you’ll be awarded.

In medical malpractice cases, often the issue of whether the medical practitioner or hospital was negligent is adjudicated first. The amount of compensation to be awarded is then decided in a second, later trial.

How much will a medical malpractice case 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 only if your claim succeeds.

In South Africa, the amount an attorney can charge if your claim is successful is governed by the Contingency Fees Act, 1997.

In addition to an attorney’s fees, litigation of this sort will also involve the cost of instructing independent experts and counsel.

How long can a medical malpractice claim take to finalise?

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, even a seemingly straightforward case can take at least three to five years to finalise.

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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 work on a no win, no fee basis.

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