Medical Negligence FAQ

1.What is informed consent?

When embarking on a certain treatment, the medical practitioner must inform the patient of all material risks inherent in the proposed treatment and thereafter seek his/her consent to proceed with the treatment. In order for a patient to give informed consent the medical practitioner must ensure that the patient’s rights of self determination and freedom of choice are recognised; rational decision making must be encouraged by enabling the patient to weigh up and balance the advantages and disadvantages of the proposed treatment/ procedure.

Consent does not have to be given in writing; it can be express or implied. Express consent is when the patient vocalises his/her consent to the medical practitioner to proceed with treatment. Implied consent would be: "the only reasonable inference that can be drawn from a person, capable of expressing his/her will and understanding, who willingly submits himself/herself to treatment or an operation, knowing the nature of the treatment or operation, showing no resistance, protest or anger thereto." A prudent medical practitioner should however get written consent from a patient, whenever possible to protect against potential liability which could so easily be avoided with a simple signed consent.

The material and inherent risks involved in a specific course of treatment or procedure should be discussed with the patient by the medical practitioner before treatment commences, however a medical practitioner cannot be expected to foresee or address every conceivable risk possible. If something goes wrong during treatment or surgery that is not an inherent or a material risk in the procedure and the medical practitioner makes all attempts to protect his patient from harm, he cannot be held liable for medical negligence. The test of whether a risk is material would be if the reasonable patient, if warned of the risk or danger, would be likely to attach significance to it and whether the doctor should reasonably be aware that the patient may attach significance to the risk.

2. Can action be taken against a hospital?

If the conduct of the nurses, administration staff or any other employee of a hospital is found to be negligent and harm results, the hospital as a whole will be held liable for these damages. This is what is called vicarious liability.

If a public hospital is sued for medical negligence, the state or state representative of that province will be held liable in their capacity as state representative. Whereas, in a private hospital, the organisation responsible for the management and running of the hospital, will be the sued.

3. What are the implications of signing a hospital indemnity?

An indemnity or disclaimer is attached either to the admission form or the consent form for a specific procedure. The patient or parent/guardian is then required to sign this prior to the patient receiving the treatment. This indemnity indemnifies or protects the hospital and its staff against liability for possible negligence that may occur during the course of the treatment or procedure. In effect, one waives his/her rights to claim for any "wrongdoings" by the hospital or its staff. The enforceability of these indemnities is still a grey area in our law. Even though gross negligence cannot be indemnified against, a signed indemnity is in principle enforceable and a valid defence. The courts however, interpret this narrowly and the enforceability will be determined on the facts and circumstances of each case individually.

Some hospitals may refuse to treat or admit a patient if the patient refuses to sign the indemnity. If one is faced with this, the indemnity clause can be crossed out and initialled, thus the rest of the terms of admission are agreed to, along with the right of the medical practitioner/ hospital to be reimbursed, but the signatory is protected against not being able to claim for damages. Alternatively, adding the words, "the rights of the signatory are reserved herein" under your signature will have the same effect as the above.

Another fact to remember is that another person cannot sign an indemnity on your behalf. A parent signing an indemnity on behalf of a child/ parent/ friend is invalid and cannot be used as a defence in a claim for damages.

4. Fighting the Medical Practitioner's Insurance Company

Most medical practitioners have insurance against a claim for damages against them. When instituting a claim against a doctor, (if he/she has insurance) the insurance company takes over the defence of the claim straight away by instructing its own attorney(s) to defend the action. One must realize that a medical negligence claim is always complicated and always defended vehemently.

5. The Health Professions Council of South Africa

(HPCSA) is founded for Public protection and Professional guidance. It is a statutory body, established in terms of the Health Professions Act No. 56 of 1974. The Council, together with the twelve Professional Boards that operate under its jurisdiction, is committed to:

  • Promoting the health of South Africa's population,
  • Determining standards of professional education and training, and
  • Setting and maintaining fair standards of professional practice.

The council may establish disciplinary committees/ professional conduct committees to which it will delegate the power to institute an inquiry into any complaint.

A complaint in writing can be submitted to the HPCSA. It must specify the facts and circumstances around what the aggrieved party believed was substandard/ negligent treatment by a medical practitioner/ hospital. The HPCSA will then institute an inquiry and investigate the complaint. The medical practitioner or hospital will have an opportunity to respond to the complaint in his/her own defence. Depending on whether the medical practitioner/ hospital has an adequate explanation for the alleged negligent conduct, the committee will make a decision on whether they will be disciplined or not. The HPCSA may involve an independent medical practitioner for an opinion thereon and s/he will address whether the doctor had acted reasonably in the circumstances.

If found guilty, the medical disciplinary committee has the following powers:

  1. A reprimand or caution;
  2. Suspension for a period from practising or performing acts specifically relating to the practitioners profession;
  3. Removal of the practitioner's name from the register;
  4. A fine not exceeding R 10 000.00;
  5. Compulsory period of professional service;
  6. The payment of the costs of the proceedings or restitution.

If the aggrieved person or complainant is unhappy with the committee's ruling in a disciplinary inquiry, the decision may be appealed to another committee appointed by the HPCSA. Alternatively, it can be taken on appeal to the High Court. Notice of appeal must however be given within one month from the date on which such a decision was given.

Even though a hospital is held vicariously liable for the negligent conduct of its staff, there is a similar disciplinary Council to the HPCSA established called the South African Nursing Council (SANC) whereby nurses are disciplined for negligent conduct with similar penalties being imposed on them for negligent conduct.

Visit the HSPCA website

6. What is Prescription and how does it affect a medical negligence claim?

When a claim prescribes, the time period that one has to claim for damages against a medical practitioner or hospital comes to an end. In other words the claim is extinguished by prescription.

The patient, who has allegedly suffered damages as a result of medical negligence at the hands of a medical practitioner or hospital, has three years from the date on which the debt becomes due to the date on which a claim against a medical practitioner or hospital is instituted. If the three year period has expired and a claim is then instituted, prescription will be pleaded by the defendant and the case will end there.

When does a debt become due in a medical negligence claim? This is always the first consideration when an attorney is approached to assist in a claim for medical negligence. In the case of Deysel v Truter this question was presented for argument. The court held that there are three questions that need to be answered in order to determine this:

i) When did the debt to the plaintiff (patient) become due?
ii) When did the plaintiff become aware of the existence of the debt?
iii) When could the Plaintiff have been deemed to have knowledge of the debt or of the facts from which the debt arose?

In the abovementioned case the plaintiff only managed to secure medical opinion that confirmed that the defendants (doctors) had conducted themselves negligently, seven years after the initial medical procedure had been performed. This medical opinion gave the reasons why the conduct was negligent, therefore giving the patient (and his attorney) the basis and content of the summons and grounds on which the defendant could be sued. The court, for that reason held that the debt only started running when the patient acquired knowledge of the facts upon which the debt arose, and accordingly the patient could carry on with his claim against the doctors as prescription in this case only started running from the date on which the medical opinion was received.

This decision was then taken on appeal. The appeal court considered the fact that the patient knew something had gone wrong at the time of the procedures and knew the identities of the defendants. It was just the verification and justification of the exact facts that were given in the medical opinion. Accordingly, the court ruled that the appeal and the Plea of Prescription be upheld, resulting in the claim ending there and then.

Prescription is therefore vital to address when considering a claim for medical negligence. As a result of the difference in opinions highlighted above some believe that it is now incumbent upon a plaintiff in an alleged medical negligence action to institute a claim for damages as soon as s/he suspects any harm, irrespective of whether there is supportive expert medical opinion. This hasty approach should perhaps only be adopted if the three year period from the date of the incident/ medical procedure is coming to an end imminently. Preferably, a medical opinion should be sought prior to instituting a claim so that unnecessary costs are not incurred in instituting a claim that does not proceed as a result of the correct grounds of negligence not being pleaded in the summons. It is therefore safer to have the facts/ grounds on which your claim can be based before proceeding with legal action.

As there are many medical negligence claims on behalf of a minor (under the age of 18) by his/her parents/ guardians, it must be kept in mind that prescription does not run against a minor. If for example there is negligent conduct by an obstetrician during the birth that causes a child to suffer damages, the child's claim will only prescribe 3 years after he/she turns 18. However, if the parents/ guardians have a claim arising out of the same negligent conduct and based on the same cause of action, for example, the past hospital and medical expenses paid by the parents/ guardians, this claim would prescribe after the 3 year period as discussed above.

7. Expert Opinion

An independent medical opinion (expert opinion) must be sought from an independent medical practitioner who will be qualified to give advice on whether s/he perceives there to have been negligent conduct on behalf of the medical practitioner / hospital.

The opinion received by this expert will be the basis of the claim. The reasons or explanations for why the conduct /omission is negligent will be used when drafting the Particulars of Claim, which is attached to the summons, as the grounds on which the claim is based need to be set out therein.

The expert will also need to give expert evidence in court on what his/her reasons are for believing that the defendant’s conduct was either negligent or not in the circumstances.

An attorney who is an expert in the field of medical negligence law usually has a panel of medical experts (referred to as medico-legal experts) whom they will consult to give an expert opinion. These experts will usually also have experience in giving evidence in court. Medical opinion may however be sought elsewhere; there have been cases where the medical practitioner who takes over from the medical practitioner who acted negligently, gives an opinion. He/she is often is a good position to comment on where, when and how things went wrong.

8. How do you get the hospital/ doctor's records?

It is usually easier if an attorney requests these records having received a signed consent from the client to obtain them. There is however nothing preventing the patient from obtaining these documents themselves. Section 32 of the Promotion of Access to Information Act 2 of 2000 provides that everyone has the right of access to:-

  1. Any information held by the state; and
  2. Any information that is held by another person and that is required for the exercise or protection of any rights.

This provision clearly entitles patients to have access to medical records pertaining to themselves, whether such records are complied in state hospitals or clinics, or private health care facilities or by medical practitioners in private practice.

Commonly the plaintiff and his/her attorneys are faced with hospital records that have been altered or changed. This can often pose a huge problem in many respects. Usually this can be remedied after Summons has been issued, when the plaintiff’s attorney can give notice to the defendant’s attorney that the original documents/records be made available for inspection to verify the contents thereof. If the records have been altered, it is imperative to establish whether the alteration was made out of genuine error or fabrication of data to defend the person making the alteration. In the situation of fabrication, it can often be established as such with other contradictory entries elsewhere in the records.

9. The legal process: Summons, Plea and proving your claim

The summons is a document which is served on the negligent party by a Sheriff. The Particulars of Claim, which is annexed to the Summons, contains the allegations and grounds on which the negligent act or omission is based and gives details of the damages suffered as a result of the negligence (heads of damages).

The Summons is usually responded to by an intention to defend followed by the defendant's Plea which is a response to the summons. The defendant will typically deny all allegations of negligence in the Plea. A trial date is then applied for where the plaintiff will have the responsibility (onus of proof) of proving the alleged negligence.

10. How long will this take?

If one takes into consideration the time required to collect the medical records, obtain a medical opinion, draft and issue the summons, wait for the defendant’s Plea, apply for a trial date and go to trial, one can see why a medical negligence claim is a long process. One can expect a minimum of 3 – 4 years from the date of instituting a claim against a medical practitioner/hospital to date of finalisation of the claim.

When preparing for trial, the plaintiff will have to prepare his/her evidence on:

  1. liability - proving the negligence of the defendant, and
  2. quantum - how much should be paid by the defendant in compensation for the damages suffered.

The plaintiff always has the onus of proving, on a balance of probabilities, that the defendant is guilty of negligent conduct and that this negligent conduct caused the plaintiff to suffer damages. Where a defendant raises a special defence such as consent, contributory negligence (where it is alleged that the plaintiff contributed in some way to the damage suffered) or prescription, the onus proof will then be on the defendant.

11. After negligence is established, what then? What can you claim for and how do you get compensated?

The "compensation" claimed is divided into what are called: heads of damages. The various heads of damages will be addressed in detail, they are:

  1. Past Hospital and Medical Expenses;
  2. Past Loss of Earnings;
  3. Future Hospital, Medical and Supplementary Expenses;
  4. Future Loss of Earnings and Interference with Earning Capacity;
  5. General Damages, Loss of Amenities of Life and Disfigurement.

In the event of death of a breadwinner, the funeral expenses as well as loss of support for dependants can be claimed. There will be an amount claimed under each of the heads of damages. The amounts are not cast in stone and can be changed or amended at any time before judgment or settlement.

The damages claimed is the amount of money it would take to place the claimant in the position that s/he would have been in had the negligent act/ omission not occurred and caused the plaintiff to suffer damages:

Past Hospital and Medical Expenses

These are all the hospital and medical expenses incurred from the date on which the negligent act/ omission occurred until the date that the claimant is compensated. It is therefore very important that a claimant keeps all the accounts from the hospital, doctors, physiotherapists, psychologists, pharmacies etc. and submits these to their attorney to add to the claim.

It is important to remember that a medical aid does have the right to be reimbursed for the amounts that they have paid in respect of the treatment administered to the plaintiff as a result of the negligent act/omission. It is a contractual obligation between the plaintiff and his/her medical aid that the medical aid is reimbursed upon successful finalisation of claim against the negligent party. The medical aid will usually send the plaintiff an undertaking that they must sign wherein the plaintiff undertakes to reimburse the medical aid upon successful finalisation of the claim. The medical aid has the right to reverse payment that they have made if the undertaking is not signed.

Past Loss of Earnings

The loss or decrease in earnings that have resulted from the negligent incident/treatment/ procedure is claimed under this head of damage. This includes all loss of earnings from the date of the incident to the date that the claimant is compensated. The plaintiff is usually requested to furnish his/her salary slips and tax documentation for a period (usually 3 years) prior to the date of the incident/ treatment/ procedure until the present date. The difference in earnings is then what is claimed.

Future Hospital, Medical and Supplementary Expenses

For this claim, the expertise of additional medico-legal experts is needed. The plaintiff will be sent to different experts depending on the type of damage/ injury that s/he has suffered as a result of the negligent act/ omission. For example, if the injury suffered involves the brain, a neurosurgeon or neurologist will be consulted along with other experts such as a psychiatrist, educational psychologist, clinical psychologist, occupational therapist etc. If an orthopaedic injury was suffered or a heart defect, then the corresponding expert will be consulted. The experts do not treat the plaintiff in any way; they assess the damages suffered and write a report thereon.

One must keep in mind that the defendant/s will also have the right to send the plaintiff to their own experts. There is therefore a chance that the plaintiff will be sent to two experts in every field.

In the reports by the respective experts, the treatment suggested in the future will be given, along with the prices of the treatment at present and the amount of time off work for this future treatment. This is what makes up the claim for future hospital and medical expenses.

The "other expenses" referred to above include travelling expenses, equipment, renovations etc. If for example, the plaintiff has been rendered paraplegic, the other expenses will include a wheelchair, house renovations to include wider doors and lower surfaces, fitted rails and ramps etc.

When all the expert reports have been received, the figures are sent to an actuary to calculate what the costs of the procedures/treatments will be in the future or when the treatment is anticipated. The figures are then amended in the Summons to bring it in line with the medico-legal reports from the various experts.

Future Loss of Earnings and Interference with Earning Capacity

This too is based on the information obtained in the abovementioned medico-legal reports. An industrial psychologist’s report also becomes important here. S/he will have to take into account where the plaintiff stands in his/her career at present and what his/her likely progression would have been had the negligent act/ omission not occurred. The difference here is what makes up this claim. These figures are also sent to an actuary for the same reasons as stated before.

The employer that the plaintiff was working for at the time of the negligent act/ omission may be consulted by the experts and attorneys in order to obtain relevant information about the plaintiff such as: the plaintiff’s abilities, promotional prospects, retirement age, skills needed for the job etc.

This head of damages also takes into account how much time off work the plaintiff will need to attend medical treatment.

General Damages

This head of damage incorporates the compensation for pain and suffering, loss of amenities of life, disfigurement, loss of life expectancy and emotional shock. General damages are what we call a non pecuniary/non patrimonial (not financial) claim. But what amount of money can compensate the above? There is no expert who can put a value to these losses. The amounts awarded for general damages lies within the discretion of our very conservative courts. The amount claimed is based on what has been awarded by the courts in previous cases for similar injury/ insults, taking the age of the aggrieved person into account. There are actuarial calculations done annually which bring the past awards made by the courts for general damages, up to date.

Certain aspects that influence the amount claimed for general damages are: the type of pain the plaintiff went/ is going through/ will go through; whether further surgery can be expected, whether the plaintiff has debilitating scarring, is unable to fend for him/herself and has a decreased life expectancy etc.

Loss of Support

If the breadwinner dies as a result of negligent conduct by a medical practitioner/ hospital, loss of support is claimed on behalf of his/her dependants. Loss of support is worked out by using an actuarial ratio of two parts to each parent and one part to each child. The deceased’s income at date of death will therefore be divided as above, and these figures given to an actuary to calculate what the loss of support is for each dependant, taking inflationary increases etc. into account. The dependant's will be compensated up to the age when they can be expected to start working for themselves or when the breadwinner was suppose to retire, whichever comes first.

12. Preparing for Trial/ Receiving an offer of Settlement.

A trial is held in open court, meaning that the public has access to the hearing as well as the court documents. Often medical practitioners or hospitals want to avoid going to court as they do not want the public to scrutinise them, their practice or their records. It is for this reason that medical negligence cases may be settled out of court. Be that as it may, medical negligence cases are defended very strongly; there are constant lengthy negotiations between the parties in the period leading up to trial, wherein the issues in agreement and issues in dispute are addressed and attempts made to dispense with the issues in dispute. If however, settlement is not reached, the case will proceed to trial.

If a matter is settled, the offer will include an amount of money that the defendant will pay the plaintiff in compensation of the negligent act/ omission (capital). In addition, on successful finalisation of a claim, the defendant’s will also have to pay what is referred to as the party and party costs which encompass legal costs incurred in instituting the claim. The settlement may also include the following:

  • a clause stipulating that the offer is made without the admission of liability;
  • a confidentiality clause, wherein the plaintiff must undertake not to disclose the amount awarded or the details of the basis for the claim for negligence;

If an offer is made by the defendants, the plaintiff should consider the following when deciding on whether to accept the offer or not:

  • Whether the amount of money offered is reasonable compensation for the damages suffered as a result of the negligent act/omission;
  • Whether there is a good chance that the court will award more money if the matter is taken on trial;
  • If the offer is not accepted, the costs involved in running a trial should be weighed against the savings in accepting the offer;
  • The emotional strain in giving evidence in court, the terrorizing cross examination and risks involved in being cross examined;
  • The risk of losing the case and having to pay your legal costs and the defendant's costs;
  • The risks that the court may not be able to decide if the medical practitioner / hospital is negligent and liable in the circumstances thus ordering "absolution from the instance" effectively meaning that the plaintiff loses his/her claim, having incurred huge costs in the process.