Getting to grips with medical negligence in South Africa
The term “medical negligence” is used to refer to a negative consequence of medical treatment that could have been prevented by the medical practitioner.
The nature of the consequence will determine whether or not it the practitioner has been negligent. For example, imagine you are in a car accident and need medical attention. Your arm is broken, you cannot move it and surgery will be required for it to heal correctly.
What is medical negligence?
After arriving at the hospital you are admitted for surgery and the surgeon assures you that it is a routine procedure without any foreseeable complications and your arm will heal well. However, when you wake up and are discharged, you are unable to use your Index finger, a consequence that should not occur after such a surgery. A nerve may have been severed or damaged and as a result, your index finger is paralysed. If the surgeon is the primary cause of this consequence, for instance, if the surgeon had been in a rush to complete the procedure and was careless when repairing the bone, then it is deemed medical negligence.
A medical practitioner cannot be held accountable for unforeseen complications arising from unavoidable treatments.
Similarly, if the practitioner has performed the treatment to the best of her abilities, but complications arise from unknown sources, she cannot be held accountable. If any complication arises out of the lack of action of the patient. For example, a patient with a fresh surgery wound could not lay a claim of negligence on behalf of the surgeon if the patient willingly removes the stitches and causes further harm to the wound.
The Health Professions Act 56 of 1974 outlines medical law in South Africa and should be consulted by any person suspecting medical negligence.
Who decides what “negligence” is?
If you believe that you have suffered as a result of negligence by a medical practitioner, you have the right to lay a claim in court against the practitioner. A Judge will hear arguments from both legal representations and decide whether negligence has occurred. Usually, other medical practitioners are consulted and provide expert testimony for both cases. The Judge must evaluate the different evidence on it's medical relevance to the claim and pass judgement on the claim.
In South Africa, the Judge must decide first whether the practitioner is liable, and then to what extent the plaintiff must be compensated. In extreme instances, a medical negligence case can turn into a criminal case if it can be shown that the practitioner is guilty of criminal conduct. This is a link to a judgement passed in the Supreme Court, the Judge outlines his considerations of the evidence and their respective value.
Reading this will give you a good idea of how a Judge may rule in a case of medical negligence.
Who was negligent?
If negligence has occurred, it can be the result of an individual, a company, or both. In some cases the individual medical practitioner may be solely responsible, for instance, she could have used the incorrect implement out of ignorance or carelessness. Conversely, it could be found that the company is solely responsible because it failed to provide the necessary and adequate equipment for the treatment. A Judge may decide that both parties are culpable and hold them equally or partially accountable.
In many cases, there is a variety of mitigating factors that must be taken into account. Medical treatment is rarely the responsibility of a single individual and so determining the source of the negligence is vital for a successful claim. Medial and legal experts will determine the most probable cause of the negligence and present their arguments accordingly, the onus of proof lies on the plaintiff.
Have YOU suffered from medical negligence?
It is often difficult to spot negligence because the complexity of modern medicine, but any negative consequence or complication incurred after the treatment could be a result of negligence. If you are suffering from an unusual or unexplained complication arising from medical treatment, it is advisable to consult another practitioner for a second opinion. In order to ascertain whether the complications arising are due to negligence, you will need to consult with experts in medical and legal services.
Do not wait too long before consulting with a medical malpractice lawyer as over time the case can be weakened by multitudes of variables including forgetful witnesses and missing documents.
Who do you call?
Assuming you are no longer in need of medical attention, the first person to call is your legal adviser. If you do not have legal representation, there are a number of law firms that specialise in medical negligence cases. Specialised medical malpractice law firms provide experts in both medicine and law. It is then necessary to inform the Health Professions Council of South Africa and lodge a complaint. Because proving medical negligence is difficult, your legal representatives will be able to advise you on the merits of your claim.
In some cases, it can be impossible to prove the fault of the practitioner and so a claim would be a fruitless legal pursuit.
The first steps your legal team will take is to request for all your medical records, review the evidence and send a letter of demand to the practitioner. The response to this letter will determine whether the matter goes to trial, the practitioner may decide to settle the matter out of court and meet the demands or defend the case in court. If the matter does go to court, you may be required to testify in person.
If your claim is successful, the Judge may grant you monetary compensation in an amount equal to what she deems adequate; this may include the legal costs, loss of income and any other cost you incurred. Take into account that a legal battle can be a costly exercise and judgement may not be passed in your favour.
What will hamper your claim?
Not all claims will be successful in winning compensation, there are circumstances which could hamper your case. Knowing your rights is of utmost importance but maintaining your integrity and good relations with your medical practitioners will go a long way in ensuring a positive outcome for both parties. The appellant's legal team may be able to prove that previous history, lack of action on the patient's behalf or outright abdication of patient responsibility. Allowing for amicable relations between the plaintiff and appellant, will ensure a smooth process and avoid unwanted animosity between parties.
What to expect?
Despite the glamour of Hollywood, billions of rands are not going to be paid out to you for a minor case of negligence. Judges will decide what is reasonable compensation in terms of how much the negligence has affected you, and how much can be claimed from the practitioner. The case will be a lengthy process if it goes to trial and will be a stressful endeavour, ensure you surrounded by loved ones and expert representatives. In cases of long-term complications, such as a birth defect or the incurring of a disability by the patient due to negligence, the Judge may grant a sum equal to the amount required to raise and/or care for the affected child or person.
Medical negligence is an increasing phenomenon in South Africa. Medical practitioners are often over-worked and underfunded, a large majority of cases are also being undertaken as a result of recent changes to the Road Accident Fund. These changes allow for lower risk of fraud and exorbitant claims, in turn, some lawyers are directing their attention toward medical negligence claims in chase of clientèle. J Malherbe reported that in the period between 1993 and 2013, medical negligence claims in the amount of R1 million or higher saw an increase by over 500%.
This means that because the rate of claims is rapidly rising, the health sector will be economically impacted by excessive or fraudulent claims, ultimately only perpetuating the problem. However, this does not mean that you should avoid laying a claim of negligence.
Medical practitioners are professionals responsible for your health and should be held accountable for negligence.