Frequently asked question: What are my rights if my attorney did not claim for my medical negligence case in time?
“My husband died due to negligence in 2015. I personally went to the hospital to get the medical file and signed for it and then gave it to the lawyers in 2016. Now in 2020 my lawyers have informed me that my case has fallen away. What can I do? – Brenda”
According to South African law legal action for claims have to be done within a certain time or it will lapse (fall away). This is called prescription of a claim. This should not be confused with a prescription for medication used by doctors and has a completely different meaning in law.
Prescription is a legal principle in terms of which a debtor’s liability to pay a debt is extinguished after the passing of prescribed time periods.
How much time do I have to claim?
In terms of the Prescription Act 68 of 1969 (“the Act”), “debts” prescribe after a period of 3 years.
In order to avoid losing the legal right to enforce a claim, a claimant must interrupt prescription by instituting proceedings against a debtor before the end of the 3 year period. The 3 year prescription period is calculated, and begins to run, from the date on which the “debt” becomes “due”. A “debt” in terms of the Act is only deemed to be due when a creditor has “knowledge” of both the identity of the debtor as well as of all the facts from which the “debt” arises.
In the example question, as soon as Brenda’s husband passed away, she suffered a loss and she was aware that the hospital or doctor could be to blame. Even if she did not know the exact cause of his death, she did know that he passed away and that was enough to cause the time to start running. Legal action should have been taken by her attorneys within 3 years of this date.
There are exceptions to the time only in cases where a claimant does not have the legal capacity to take action, such as in the case of minor (underage) children, comatose or mentally disabled claimants. In Road Accident Fund matters there are also different prescription periods involved.
In matters against a government hospital it is also important that a Notice of intention to institute legal proceedings be given as soon as possible. It is advisable to speak to an attorney as soon as possible to ensure this requirement is met.
How is prescription stopped?
In order to ensure that a claim does not lapse, it is necessary for legal action to be commenced by way of issuing of a summons. In other words the responsible person has to be sued through a court before a certain time has passed.
The following is not enough for a claim to be successful:
- Collection of a hospital file or other documents
- Emails or letters noting complaints or intention to take legal action
- Lodging of a complaint against a doctor or hospital
- Opening a case at a hospital, medical board or police station
- Speaking to or appointing an attorney
Why has my claim lapsed?
If legal action was not started by timeous delivery of a summons to the responsible person, it will be too late.
This could be due to the fact that an attorney was appointed too late or that an attorney did not take the necessary steps to ensure that a summons was issued in time.
Can I claim against the attorney?
If you had a valid claim, in other words, you would have won your case and received compensation, you can take legal action against the attorney. It is necessary to still prove your original case in court as well as the amount of compensation that you would have received.
It is good practice for Attorneys to have insurance against prescription of claims. This will ensure that clients are protected should any of the attorneys or employees at a firm make a mistake to the detriment of the client.
For more information see the website of the Legal Practitioners Indemnity Insurance Fund
If you have been advised that your claim has lapsed, you may approach a different attorney to advise you on your options and the way forward.
They can then make contact with the previous attorney and their insurers to submit a claim on your behalf.