How to make a medical malpractice claim in South Africa
29 Apr 2020
We offer a guide on how to make a medical malpractice claim in South Africa.
What counts as medical malpractice?
In medical scenarios, things sometimes go wrong – even when medics do everything right.
However, it constitutes medical malpractice if:
- accepted standards of practice aren’t met (whether through actions taken or failure to act)
- a patient’s informed consent is not obtained.
Where medical malpractice or negligence results directly in harm to a patient, a claim for compensation can be pursued.
Who do you make a medical malpractice case against?
Depending on the nature of your claim, you may be able to claim compensation from:
- the responsible medical practitioner
- a private hospital where the malpractice occurred
- the State, if the malpractice occurred at a government hospital.
Claims against the State are made against the Minister of Health.
Time limits for medical malpractice claims
Generally, a medical malpractice claim must be made within three years from when the alleged malpractice occurred.
However, some exceptions apply. A suitably qualified attorney can advise on the validity of a claim, given the applicable prescription periods.
Claims against State hospitals
Claims against the State are subject to certain, special requirements.
For example, a statutory notice must be delivered to the appropriate state department, informing them that a claim may be instituted. This has to occur within six months from when the malpractice occurred.
Legal proceedings can’t start until 30 days after the notification is sent.
Steps involved in making a medical malpractice claim
Consult a specialist medical malpractice attorney
First and foremost, consult a personal injury attorney who specialises in medical malpractice claims.
Medical malpractice and medical negligence cases are notoriously complex. They’re subject to special limitations, rely on expert knowledge (both legal and medical) and can take many years to finalise.
For these reasons, it’s vital to have expert legal assistance.
Gathering evidence
You and your attorney work together to gather the necessary evidence to support a medical malpractice claim.
Examples are details of what occurred, any witness statements, medical records, expert medical testimony, records of costs you’ve incurred due to injury caused by the malpractice, and so on.
Issuing a summons
Your attorney will issue a summons to the party you have a claim against.
Initially, the defendant usually denies allegations of medical malpractice.
However, once the defendant has finished its own investigations, they may choose to offer a settlement.
If no settlement offer is made or you don’t accept the offer, the matter will go to trial.
Defending a medical malpractice claim in court
If a case goes to court, a presiding judge hears all evidence. Expert medical testimony tends to be key in this type of case.
The judge then determines whether the claim is valid and, if it is, what compensation is awarded.
How much does it cost to pursue a medical malpractice case?
The cost of any legal case depends on a number of factors, from the duration and complexity of the case to the firm you choose to represent you.
The Contingency Fees Act, 1997 governs how much an attorney can charge you if your claim is successful.
Some firms, like DSC Attorneys, work on a no win, no fee basis. In other words, their fees are payable only if your claim succeeds.
How long does a medical malpractice case take?
It’s wise to count on a medical malpractice case taking at least two or three years – or even up to five or six years if the case goes to trial.
It takes time to gather and compile evidence; gather reports from suitably qualified medical experts; issue a summons and get the defendant’s response; book a court date; and complete the trial process.
If the defendant offers a settlement, it can reduce the time it takes to finalise a claim.
However, a settlement can be offered only after court proceedings have already been underway for some time – or there may be no offer.
How DSC Attorneys can help
At DSC Attorneys, we specialise in personal injury law and our medico-legal team has extensive experience in handling medical malpractice claims.
We can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve. We work on a no win, no fee basis.
See also:
- Pre-existing conditions: How they can affect a personal injury claim
- The business case for medico-legal funding
- Contingency fee arrangements: Clarifying the common law position
- Beware of touts in South African hospitals: What to watch out for
