Frequently asked question: Treatment in a government hospital
Elizabeth asks: “I receive a SASSA grant and I do not have medical aid. I was treated in a state hospital and got an infection after a mistake during an operation. Now I have a colostomy bag for life. Can I sue the state for medical negligence if I do not have a medical aid?
South Africa’s healthcare system
South Africa has an estimated population of more than 55 million people, the majority of whom access health services through government-run public clinics and hospitals. Citizens can choose to have a medical aid and receive care at private institutions, but this is not a legal requirement. South Africa’s public health system exists with the purpose of providing care to all citizens through a countrywide network of care facilities ranging from mobile and rural clinics to huge academic hospitals in urban centres.
The South African Department of Health (DoH) derives its mandate from the National Health Act of 2003, which requires that the department provides a framework for a structured and uniform health system for South Africa. The Act sets out the responsibilities of the three levels of government in the provision of health services. In terms of the National Health Act, provincial departments of health are mandated to provide healthcare services.
A means test (income and affordability test) is used to determine who is eligible for free or discounted fees at public hospitals. Contrary to perception, public hospitals may charge patients for services received, using a set of tariffs that vary according to household income. The poorest households are entitled to free healthcare, those on modest incomes are charged subsidised rates and those that earn more than the upper threshold of the means test must pay in full. The extent to which hospitals collect these fees varies among the provinces.
What is negligence?
Medical practitioners in South Africa have a reasonable standard of care that are expected from them and to which they strive as a profession. When treatment is below that standard and causes harm to a patient, compensation may be claimed.
To read more about medical negligence and proving your case see our blog article
In the Supreme Court of Appeal matter of Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) the court explained the requirement of liability in any case as:
“Guilt or fault arises if –
- (1) A reasonable person (or this case medical practitioner or healthcare provider) in the position of the defendant –
- (i) Would have foreseen harm of the general kind had actually occurred;
- (ii) Would have foreseen the general kind of causal sequence by which that harm occurred;
- (iii) Would take reasonable steps to guard against it; and
- (2) The defendant failed to take those steps.”
In other words, the test for medical negligence is whether the treatment received was of a reasonable standard and not following this standard could cause harm. This means that in any case the court will ask whether a mistake was due to negligence, i.e. whether a reasonable person or institution provided care of the expected standard in the circumstances.
What should the standard of care be?
Whether you pay for services or not, you are entitled to care of a reasonable standard as explained above. You do not have less rights if you do not pay. The health professionals have a certain code of ethics and standard of practice that is expected in their profession. No matter whether treatment is given in a public or private institution, it would for example be unacceptable to amputate the wrong limb, perform a procedure incorrectly, fail to prevent infections with appropriate care or forget equipment such as scissors in a patient’s body. The medical profession in South Africa has standards for all its members and healthcare practitioners are measured against their peers. Unless there are special circumstances, such as a lack of resources making the situation an exception, the same standard of skill and professionalism is expected in private and public hospitals.
What are my rights?
If you have received substandard treatment at a government institution which has caused you to suffer harm you have the right to claim compensation. Whether you have paid anything for your treatment or not, you have the right to legal representation and to have your case heard. It is important to speak to an attorney as soon as possible, since there is a requirement to inform the state of litigation against them. Your attorney will be able to help you take the necessary steps.
If you need advice, contact Paul du Plessis Attorneys for a free telephonic consultation on 012 809 1588 or send an email to paul@pauldup.co.za
Sources:
https://pauldup.co.za/the-claims-process/
https://www.gov.za/about-sa/health#
https://www.medicalbrief.co.za/archives/doh-adjusts-sa-public-hospital-means-test/