Medical Negligence Claim Procedures
It is very important to know what you need to do if you believe that you have a medical negligence claim against a healthcare provider in South Africa. A healthcare provider may be a nurse, a doctor, or a hospital.
Medical negligence occurs when a patient is harmed by a doctor (or other medical professionals) who fails to competently perform his or her medical duties. Even if it is clear that the care was below the expected standard, you can’t sue for medical negligence if you didn’t suffer any harm.
South African medical law stipulates that the injury suffered must be the direct result of the medical practitioner’s actions or lack thereof. If, however, the practitioner followed the correct procedures and still, the patient suffers with unfavourable consequences, then medical negligence cannot be claimed.
When is the time frame in which I can claim?
In the case of adults, you must formally submit (summons delivered) your medical negligence claim within three years from the time when you became aware of the facts necessary to institute a claim. A good rule of thumb is to claim within three years of realising you have suffered harm or a negative outcome.
In the case of children, the claim must be formally submitted before the 19th birthday, or within three years, whichever’s latest.
There are various exceptions to this general rule though and it would be wise to seek legal advice even if three years have already passed since the date of injury.
The process
Once your attorney accepts your case the first step the team will take is to request all of your medical records. When your records have been received, they will review the evidence and obtain an expert medicolegal opinion as to whether your claim has good prospects of success or not. If there is a good chance of success, a claim will be submitted by way of formal court process (summons). The healthcare provider will generally defend the claim, while also getting an expert medicolegal opinion on whether there is liability or not. This two-sided process can take a while. Claims are seldom settled in a very short space of time. Very few cases actually go to trial – if your case does go to trial, you may be required to testify in person.
Team of Experts
Assessing your claim will often involve advice from a team of medicolegal experts. These experts will be required to provide a medicolegal opinion (report) and, if your case goes to trial, to testify in support of your claim. The only way that a medical negligence claim can be proven is with expert evidence. The experts are required to testify on things like the standard of care, whether your treatment was negligent, whether your harm was caused by the negligent treatment, and lastly what the extent is of that harm.
Going to court
A Judge will hear expert evidence and arguments from both the healthcare provider and your legal representations and will decide whether negligence has occurred.
The court process is generally split up into two phases. First negligence and liability are determined. Once this has been sorted out, your legal team will set about working out how much your claim is worth, in other words, what reasonable compensation you are entitled to.
Criminal Cases
In extreme instances, a medical negligence case can turn into a criminal case if it can be shown that the practitioner is guilty of criminal conduct. This is a link to a judgement passed in the Supreme Court, the Judge outlines his considerations of the evidence and their respective value.
Paul du Plessis Attorneys on Medical Negligence Claim Procedures
Result
If your claim is successful, the Judge may grant you monetary compensation in an amount equal to what he/she deems adequate. This amount will generally include compensation for pain and suffering, medical and related expenses, loss of income. Although in most cases costs are awarded to the successful party, the recovered costs are determined on a significantly lower scale than that which you will pay your attorney for taking the matter on a no win no fee basis.
Success in a medical negligence case can never be absolutely guaranteed. There is the risk that a claimant could end up being liable for the healthcare provider’s costs. For that reason, it is important that good legal and medicolegal advice be obtained so that this risk can be kept to a minimum.
Examples of Medical Negligence
Some examples of common medical negligence include not taking a proper medical history, not properly advising the patient of the healthcare risks involved in treatment, improper follow-up, incorrect diagnosis failure to recognise complications after treatment/surgery, failure to properly monitor a patient, failure to treat patients in accordance with standard protocols.
Contact Paul du Plessis Attorneys if you think you have a medical negligence case.
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