Francois was admitted to hospital for a routine back operation. He underwent surgery but when he woke up he couldn’t feel his legs. He was later informed that he suffered serious nerve damage at the hands of the neurosurgeon. Who is to blame?
Does Francois have a claim?
The test for negligence is an objective one. The courts will consider whether a neurosurgeon in the same position as the doctor in question would have foreseen the reasonable possibility that his conduct would cause injury to Francois and result in loss. A further consideration will include whether such a doctor would have guarded against this loss (this is referred to as “The Reasonable Man Test”) Many surgeries do associated risks. The reasonableness of the outcome, when considering the nature of the surgery, as well as the information provided to a patient before deciding to have the surgery, is however of great importance.
Francois had a routine operation and paralysis is certainly not an expected complication. The Simpsons team will certainly investigate this further.
What can he claim for?
If liability is proven or accepted by the wrongdoer (doctor, hospital, etc.) a claim for damages arises.
Damages consist of the following:
- Past and future hospital, medical and related expenses.
- Past and future loss of income.
- General damages (pain and suffering, loss of amenities of life etc.)
What should Francois bring to his first consultation?
- Copy of his ID;
- A written statement of the events leading up to the injury;
- Details of all hospitals/medical practitioners involved (including pre and post-surgery);
- Hospital folder number/reference, where relevant;
- Proof of medical expenses incurred (whether this be personal expenses medical aid expenses);
- Proof of income;
- Photos of any scarring and/or disfigurement.
What are the next steps, i.e. explain all the steps in the process from Simpsons side?
The first step your Attorney will take is to request all the relevant hospital records and/or clinical notes.
These are then submitted to a specialist working in a related field of medicine in order to request an opinion as to whether an adequate level of diligence, care and skill was shown by the specialist in question.
If this opinion confirms that the case has merit we will proceed with litigation against the doctors, medical staff and/or hospital concerned.
What are the problems that could delay the case or affect its outcome?
One of the toughest hurdles in a medical negligence claim is finding a correct and willing specialist to testify against what is quite possibly his colleague. We do however overcome this by using specialists in various provinces and have built up relationships with many reliable and honest specialists who will assist with opinions.
The main delay in litigation proceedings is waiting for allocation of a court date. We can wait up to 3 years from date of application to see the inside of a court room. In cases where urgency is present, (e.g., where the client cannot generate an income due to the negligent act) we may make application for early allocation.
What would/could have happened if Francois approached the hospital himself?
This is never recommended. Often the negligent party may attempt to settle on a nominal amount with you before you have accessed an Attorney – they may also try to pressurise you into signing an agreement in full and final settlement of any claims against them. Attorneys specialising in the Law of Delict would be in the best position to ensure that you receive adequate compensation for the damages you have suffered
What are the typical scenarios where you would normally not have a claim?
Many medical procedures come with associated risks. If the risk was properly explained to you and is a reasonable risk, given the nature of the procedure you would not have a claim.
If action is taken to save your life you may not have a claim (e.g., if the doctor didn’t remove your womb during the caesarean you would have passed away). Life above all else.
