MEDICAL NEGLIGENCE CLAIMS PROCESS IN SOUTH AFRICA
If your attorneys believe that there is a good chance that you have suffered as a result of negligence by a medical practitioner, you should institute legal action against the practitioner. A judge will decide whether the medical practitioner acted negligently after hearing both legal representations and expert opinions.
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. The material and inherent risks involved in a specific course of treatment or procedure should be discussed with the patient by the medical practitioner.
Usually, a claim has to be lodged at court within 3 years of the patient becoming aware of the problem or when the negligence occurred. There are certain times when claiming for medical negligence carries exceptions, including if the patient is under the age of eighteen, or lacks mental capacity.
It is very important that you keep all records relating to your case, no matter how unimportant it may seem. It is usually easier if your attorney requests these records directly from the healthcare provider. 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 anyone has the right to access to:
- Any information held by the state;
- Any information that is held by another person and that is required for the exercise or protection of any rights
These provisions clearly entitle patients to have access to their medical records, whether such records are complied in state hospitals, clinics, private health care facilities or by medical practitioners in private practice.
If the healthcare provider’s staff members, including nurses, administration staff or any other employee, acts in a negligent manner resulting in damages, the healthcare provider will be held liable for these damages as a result of the principle of 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 sued.
In the majority of cases, medical witnesses will be called upon for their professional opinion.