What constitutes knowledge of a potential medical negligence claim?

medical negligence
01 Mar 2023

Medical negligence claims remain some of the hardest claims for damages to prosecute. The field generally requires specialised legal practitioners. Both negligence and causation are difficult to prove. Furthermore, the medical field is highly specialised with complex terminology, numerous risks, and a significant potential for complications..

The question arises: if even legal practitioners struggle to wrap their heads around the complexity of the field, how is a lay person supposed to identify medical negligence? This question is of utmost importance when considering one of the central concerns in claims for monetary compensation: prescription.

In most cases, a prescription occurs three years after a debt is due, as per section 11(d) of the Prescription Act 68 of 1969. The creditor will be deemed to have this knowledge if he could have acquired it by acting reasonably. In matters where certain State entities, such as the MEC for Health, are sued, (i.e.: where the negligence was the result of the staff of a state hospital), there is a further requirement stipulated in terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002: a notice of one’s intention to institute proceedings must, in the prescribed form and manner, be served on the applicable State entity. Section 12(3) states that the debt shall not be deemed due until the creditor obtains knowledge of the identity of the debtor and the facts which gave rise to the debt.

In MEC for Health, Eastern Cape v N H obo A (513/2021) [2022] ZASCA 181 (15 December 2022), the question of knowledge came before the Court. In this case, a child was born in May 2012. The child has cerebral palsy, allegedly caused by the negligent conduct of the hospital staff. The child’s mother discovered that she might have a claim for medical negligence after she met with a mother whose child also has cerebral palsy in January 2018. In February 2018 she consulted with attorneys and delivered her notice to institute legal proceedings, as required by section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. Part of the mother’s claim was damages in the amount of R500 000.00 for emotional shock, trauma, pain and suffering caused to herself.

A special plea for prescription was raised, with the MEC for Health, Western Cape (“the MEC”), contending that the mother should have delivered her abovementioned notice within six months of the child’s birth when the hospital staff allegedly caused her damage. The mother, however, contended that she, being an illiterate layperson, could not reasonably have known that she had a claim for damages prior to consulting with an attorney.

In application of the law to the facts, the Court held that the onus rested on the MEC, who claimed prescription, to prove that the mother knew, at the time of discharge from the hospital after the child was born, that the negligence of the hospital staff caused her child to suffer from cerebral palsy. The Court then held that the MEC failed to prove that the mother knew, or reasonably ought to have known, that said negligence had occurred and caused the damage in question. The Court held that in order for the plea of prescription to succeed, the Court would have been required to hold “that a party with no knowledge of medicine, no access to her hospital records, limited schooling, and resident in a rural area of the country, would be expected to have knowledge of sufficient facts to institute an action for damages within the prescribed periods”. Accordingly, the Court refused to conclude as such, and the plea for prescription failed.

It would be a stretch to conclude that in all cases of medical negligence, knowledge would only have been obtained, or reasonably ought to have been obtained, after consultation with a legal practitioner. In determining the issue in question in future cases, the Courts will apply the principle of reasonableness, considering the issue’s complexity and the complainant’s literacy. However, it is evident that in certain cases where a debt arose due to professional negligence, such as medical negligence, where the matter is highly complex and the claimant is a lay person, a prescription will not necessarily start running when the damage causing event took place, and that it may be unreasonable for a person with a limited understanding of the medical field and / or the law to know that she has a potential claim immediately.
It would be advisable to consult a personal injury attorney as soon as reasonably possible when suspecting medical negligence. However, it is also evident that one should not neglect to consult an attorney simply because the damage causing event transpired some time ago.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Philip Venter

Philip Venter is an articulate and driven litigator and has been an admitted attorney since September 2021. He is passionate about the law and specialises in Magistrate’s Court litigation, commercial... Read more about Philip Venter


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