Medical negligence is an area of personal injury law that is fast becoming more relevant in South Africa. The decline in the level of healthcare is further contributing to malpractice. Every healthcare professional (whether it be a doctor or a hospital) owes a duty of care to their patients. This is monitored and overseen by the Health Professions Council of South Africa (HPCSA).
A medical accident may be a breach of that duty, and if you’ve suffered an injury due to medical negligence, you may have a legitimate claim to be granted compensation under the law. Granted things can go wrong in any situation, but as a patient, you are entitled to reasonable care as well as informed consent; if those expectations aren’t met, you have the right to make a claim against the medical personnel or facility to blame for your adverse experience.
What is medical negligence?
Medical negligence claims are defined by two categories, namely:
- Economical damages
- Non-economical damages
Economical damages include monetary expenses incurred due to lack of proper medical attention, and the resulting financial losses caused by this. Non-economical damages can include the loss of a limb or the inability to lead a normal life as a result of an accident. Compensation in these cases will be determined by the court, based on extensive investigations pertaining to the losses and damages.
When can you claim with regard to medical negligence?
Each case for medical negligence is unique and a claim will be dependent on a number of important factors, such as:
- the definition of medical negligence in terms of the law
- the severity of the injury
- whether the duty on the part of the medical practitioner was properly performed
- whether there was sub-standard care provided to a patient, where the patient suffered an injury or loss as a result
- whether the medical assistance provided was in line with the standards of good practice in South Africa.
The process of pursuing a claim for compensation
Where medical malpractice or negligence results directly in harm to a patient, a claim for compensation can be pursued against:
- the responsible medical practitioner
- a private hospital where the malpractice occurred
- the State, if the malpractice occurred at a government hospital, subject to certain requirements.
Time, cost and process
- A medical malpractice claim should be made within three years from when the alleged malpractice occurred or when it becomes reasonably known to the person that they may have a possible case.
- Documentation must be presented, including: details of what occurred, any witness statements, medical records, expert medical testimony, records of costs you’ve incurred due to injury caused by the malpractice.
- It’s wise to count on a medical malpractice case taking at least two or three years – or even up to five or six years if the case goes to trial.
- It takes time to gather and compile evidence; gather reports from suitably qualified medical experts; issue a summons and get the defendant’s response; book a court date; and complete the trial process.
Counting the costs of medical negligence in South Africa
The rising cost of medical care in South Africa, is disturbingly accompanied by a steep rise in medical malpractice litigation. Media reports of high damages awarded for malpractice in public health institutions are becoming more frequent. Many of these related to claims of misdiagnosis, practising outside the scope of practice, and refusal to treat patients.
Cost consequences of increased medical malpractice litigation:
- causes healthcare practitioners’ insurance premiums to increase, leading to a hike in fees payable by patients for professional services
- increased risks of litigation may prompt practitioners to perform additional (often unnecessary) diagnostic and screening tests
- these moves towards defensive medicine drive up the cost of healthcare and may even expose patients to unnecessary risk
- increasing medical liability risks may cause aspirant healthcare professionals, and especially junior doctors, to shy away from certain specialties owing to a fear of the accompanying litigation risk, thus contributing to a skills shortage in the country.
Some good news is that both industry and government are keenly aware of the real and present need to change the claims situation. Both have committed to identifying ways of curbing the tide in medical malpractice claims and litigation, as well as in implementing measures aimed at reinforcing defined standards of care, managing patient expectations and outcomes, and improving patient experience through better communication and more education.
Simpsons Attorneys
Simpsons Attorneys Inc. was established in 1998 and is a vibrant and dynamic firm of attorneys in Cape Town specialising in personal injury law and family law. We operate on a no-win, no fee basis.
Personal injury claims stem from motor vehicle accidents, medical negligence, as well as product and public liability. Family law includes divorces, maintenance orders, parenting plans, relocation plans, domestic violence and protection orders.
As some of the most talented and specialised attorneys in the Cape Town area, we are proud to consider ourselves as #AttorneysWithHeart – we will always take your personal needs into consideration, alongside your legal journey.
Find us at: www.simpsons.co.za
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