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Frequently asked question: Can I claim if my baby died due to medical negligence?

Frequently asked question: Can I claim if my baby died due to medical negligence?

“My baby died in hospital after she was born prematurely. On the day of the birth, they transported me with a polo whereas the doctors had told them to rush me to another hospital with an ambulance because I was bleeding. They made me walk to the ward and to the scan… Ignoring the Doctor’s advice. That led to my womb opening and giving birth prematurely at 36 weeks. They didn’t put oxygen on my premature baby as they said they are waiting to see if she can breathe on her own. My baby passed away a few days later and one of the nurses commented that it was due to negligence. What are my rights? Can I claim for the death of my baby?” – Siya

As attorneys, this is one of the grimmest questions to provide advice on. The answer isn’t always easy and would depend on each person’s medical history and circumstances. We are straight forward with our clients about the practical considerations, which includes what the law says as well as the financial viability of taking legal action.

Do I have a claim?

You may have a claim. But there are requirements which have to be met before you may be successful with a claim.

  • Firstly negligence has to be proven. It would be necessary to prove that the care was not of the appropriate standard.
  • Secondly, it has to be proven that had the care been of the appropriate standard the baby would have survived.
  • Thirdly, it is necessary to prove whether the death resulted in any loss to the parents. This is not simply the emotional loss of the baby, but includes other factors which we will discuss below.
  • Lastly, the amount of compensation awarded by our courts are relatively small if one considers the legal costs involved in taking a case to court.

Who can claim?

A civil claim has as its main purpose the recovery of compensation but can be a helpful tool in bringing the family of the deceased some closure and support following this difficult time.

In South African law the person who has suffered the loss may claim. The requirement is that the person must prove in what way the death has resulted in loss. This is usually a person who was financially dependent or suffered emotional trauma as a result of the death.

For more information you can also read our article: Who can claim when a loved one dies?

How claims for death are calculated

If negligence and liability is successfully proven, it is also necessary to provide the court with information to determine what compensation should be awarded.

Compensation on the death of a loved one will include the following:

  • Loss of financial support – if the bread winner is no longer able to provide for the family.
  • Funeral Costs – there are limitations as to what will be paid for which usually include only basic costs.
  • Pain and Suffering – (general damages) the trauma experienced by the family of the deceased.

Usually there would not be a claim for loss of financial support, as the baby did not provide any income to the family nor did he have any obligation to do so.

Funeral costs will be minimal and normally only include the costs of

  • Transportation of the deceased body;
  • Provision of the coffin or burial shroud;
  • Preparation of the deceased body (including embalming);
  • Storage of the deceased body;
  • Arranging for issuing of a death certificate;
  • Burial or cremation of the deceased body;
  • Hiring of equipment to lower the coffin into the grave; and
  • Grave fees.

Venue hiring, catering, flowers and a tombstone are normally excluded.

A claim for the loss of a bay will therefore consist largely of compensation for emotional damage (The legal phrase is called “general damages” and is also often referred to as a claim for “pain and suffering”).

How do the courts decide how much my pain is worth?

When determining what amount of compensation should be awarded for the loss of the life of a loved one, the court uses similar previous cases to compare situations. In South Africa, these amounts of awards in similar cases are published annually in a book by Mr Robert Koch a well-known actuary and is called the Quantum Yearbook. This provides guidelines to attorneys and to the court on what the standard amount of compensation had been allowed in similar situations.

Each case is different and the severity of the emotional damage can be influenced by various factors, such as whether the family saw the baby die or whether the baby had any traumatic injuries.

The court would require that more than normal grief or mourning is experienced.

It would be necessary to provide expert evidence, usually by a psychologist or psychiatrist, that the person claiming, has suffered a recognised psychiatric condition requiring treatment.

This includes development of Post-Traumatic Stress Disorder, severe depression, panic attacks and many other symptoms including memory and concentration difficulties.  Lasting trauma, unresolved mourning or chronic bereavement could all be consequences of the loss of a loved one, but a medical opinion on the severity and effect on the claimant has to be provided to the court.

Recent cases have seen the court award amounts from as little as R35 000.00 to R250 000.00.

Mbhele v MEC for Health for the Gauteng Province (355/2015) [2016] ZASCA 166 

Lett & another v The Minister of Safety and Security & another 2011 (6K3) QOD 1 (ECP)

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC)

What are the practical considerations of proceeding with such a claim?

The purpose of a civil claim is to obtain compensation for loss suffered. There are no disciplinary steps or apologies involved in a civil claim. When instituting legal action, there are significant costs involved. This includes attorney’s fees, advocate’s fees and expert fees.

Many hours of preparation would go into winning a case and in most situations the cost of running a case would exceed the compensation provided by a court. Therefore, one must consider carefully whether it would be financially viable for a client to spend e.g R200 000.00 only to get R100 000.00 at the end of a case.

If you are unsure on whether you have a claim, you are welcome to contact our offices at 012 809 1588 or paul@pauldup.co.za and speak to one of our attorneys.