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Medical Negligence; a quick 123

What is Medical Negligence?

When a medical practitioner fails to act or perform according to the medical standard when treating a patient.

Who is affected by Medical Negligence?

Anyone treated by a medical practitioner and who received medical treatment from a medical practitioner.

When is it Medical Negligence?

When there are medical complications or negative consequences due to the medical treatment received.

Where can Medical Negligence take place?

Medical negligence can take place at a hospital or private practice.

How does Medical Negligence happen?

If medical treatment was prescribed by a medical practitioner but there were negative consequences for the patient.

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According to the Oxford Advanced Learner’s Dictionary, Medical means: connected with illness and injury and their treatment. Negligence means: the failure to give enough care or attention. Which means the definition of Medical Negligence can be summed up as a failure to act or perform in the correct way when a professional is treating an injury or illness of a patient.

medical negligence

Medical Negligence: types of damages?

Typical types of damages that can be claimed for because of an injury suffered from medical negligence:

  • Expenses for special care needed as well as emotional and mental trauma
  • Medical expenses for past and future cases
  • Past, present and future loss of income

What are examples of Medical Negligence?

  • When a medical condition is misdiagnosed or not diagnosed at all
  • Complications that are not addressed during the process of birth/labour
  • When scans and x-rays are interpreted incorrectly
  • When appropriate treatments are delayed or when any form of treatment was not provided by the medical professional
  • Not enough informed consent, you weren’t advised of all the risks related to the medical treatment/procedure
  • When surgical procedures are prescribed unnecessarily
  • Alternative procedures or treatments were not an option or never discussed
  • When you were capable to do so at the time, but did not consent to any provided treatment
  • When your decision to agree to treatment or to a procedure is affected because the results were not given to you accurately.

What is the process when I want to claim for Medical Negligence?

If you do not have a legal team you need to inform the HPCSA of medical negligence and lodge a complaint.

Approach our legal team to assist you, they are the experts and know exactly what to do and what the court will need from you. They will also advise you on the worthiness of your claim and if the necessary evidence can be provided in order to support your claim.

Our legal team will request all your medical records – medical history, treatments and prescribed medication.

Our legal team will then review all the evidence and send a letter of demand to the medical practitioner. Whether the matter goes to trial will depend on the response of the medical practitioner to the letter.

There are 2 options:

1. The medical practitioner can settle the matter out of court or

2. He/she can defend the case in court. Should the medical practitioner take the case to court it might involve you testifying in person.
What happens in court? The Judge will assess the dispute and supporting evidence from both parties to determine whether medical negligence did indeed take place. Expert testimonies will be presented by the legal teams of both parties. The final decision will be made by the Judge after all evidence was taken into consideration.

The claim is successful, what now? Financial compensation might be granted to you by the Judge in an amount equivalent to what he/she believes is sufficient; this may include any loss of income and legal costs.
Please remember that the outcome of success is not guaranteed and can be a costly exercise.

You will have a good idea of how medical negligence costs are calculated by reading the following: (http://www.saflii.org/cgi-bin/disp.pl?file=za/journals/DEREBUS/2015/160.html&query=medical%20negligence)

Do I need proof for a Medical Negligence claim?

Yes, you do. You have to provide relevant evidence that the injury or medical side effect or medical harm suffered was in fact a result of medical treatment prescribed to you.

Can I sue a doctor for Medical Negligence?

Yes, but there has to be a doctor-patient relationship. The doctor can only be liable if he/she was responsible for the action taken or not taken. You cannot sue the doctor if you are not happy with the treatment received. Only if you can prove that a competent doctor would not have taken the same action as the doctor responsible for the harm suffered.

What is the difference between Medical Negligence and Medical Malpractice?

Medical negligence is when a patient suffers from medical side effects caused by a mistake made by a medical practitioner who treated the patient. Medical malpractice is when a medical facility e.g. a hospital breaches the duty of care.

How long do I have to claim for Medical Negligence?

The claim must be submitted within 3 years after you became aware of the injury of negligence that might have occurred or from the date of the misdiagnosis or surgery.

What does the Consumer Protection Act have to say about Medical Negligence?

The Consumer Protection Act 2008 Section 54(1)(b) states the following: “When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to the performance of the services in a manner and quality that persons are generally entitled to expect.” When you are a patient and went to a doctor for medical treatment and they failed to provide you with the correct and adequate treatment and as a result suffered from the treatment you have the right to take legal steps against the practitioner.

https://www.gov.za/documents/consumer-protection-act

What are my rights according to the Constitution of South Africa?

According to Section 27 of the Constitution of South Africa: “Everyone has the right to have access to health care services.” It doesn’t matter who you are. You have the right to be treated for any medical injury. If this did not happen, you as the patient or even a family member has the right to sue the doctor or medical institution. The claim must be submitted within 3 years after you became aware of the injury of negligence that might have occurred.

https://www.gov.za/documents/constitution/chapter-2-bill-rights#27

Where can I submit a complaint for Medical Negligence?

The Health Professions Council of South Africa walks hand in hand with the Health Professions Act and will not only protect the public but also guide the professions. The HPCSA can be contacted, should you as a patient feel that you have been treated unethically by a medical practitioner and if the medical practitioner is registered with the HPCSA. https://www.hpcsa.co.za/Complaints. You can also contact our legal team to assist you with this process.

What is the HPCSA?

The Health Professions Council of South Africa walks hand in hand with the Health Professions Act and will not only protect the public, but also guide the professions.

When do I have grounds for a claim for Medical Negligence?

You have a potential medical negligence claim when a medical practitioner fails to act or perform according to the medical standard when treating you as a patient. And the results of this failure lead to the patient being incapable to carry on with his/her everyday duties. When the patient lost his job because of the injury which leads to loss of income. Also, if the injury leads to continuous medical expenses for any medical care needed.

What does expert opinion mean?

According to the Oxford Advanced Learner’s Dictionary, expert means: a person with special knowledge, skill or training in something. And opinion means: your feelings or thoughts about something. Expert opinion is when an expert in a specific field shares his thoughts on a case.

As a basis for your medical negligent claim you will need the expert opinion of an independent medical practitioner, who will give advice as to whether the medical practitioner conducted negligent behaviour. Not only will the expert’s advice be the basis of your claim, but he/she will also have to provide evidence in court to support his/her reasons as to why the medical practitioner’s opinion was negligent.

How do I as a patient access my medical records?

According to The Promotion of Access of Information Act 2 of 2000 ; everyone has the right to access their medical records for credible reason. You have access to your medical records. It doesn’t matter where the records where compiled, it could have been at a state or private hospital or clinic or in private practices by medical practitioners.

You as a patient are allowed to request your medical records personally or you can give our legal team written consent to request it on your behalf. The request must be in writing and you should get a response within 30 calendar days.

http://www.justice.gov.za/legislation/acts/2000-002.pdf

Is it only the patient that can claim for Medical Negligence?

No, spouses will also be part of the medical expenses claim if they are the main member of the medical aid. If the patient is a minor the guardian will claim on behalf of him/her and if the patient is deceased, the dependant will be able to claim compensation for any harm experienced.

What documents will our legal team need from you (the patient) for a Medical Negligence claim?

  • Any documentation that can be used as evidence for e.g. medical invoices, medical receipts for expenses, any medical expenses, treatment dates.
  • Any information related to the medical negligence claim for e.g. medical history, your health before the injury, correspondence with the medical practitioner/professional.
  • Details of the medical practitioner/professional who treated you, as well as the practitioner/professional who treated you after the injury.
  • Medical aid details: contact details, member number, statements, medical slips before and after the incident.
  • Employment confirmation and proof of income.
  • Bank statements and IRP5 documents.
  • Dates that you have not been at work because of the injury.
  • If you are financially dependent on the person claiming for medical negligence or if is your spouse, all documents above are required as well as proof that the person is supporting you financially.