Medical Negligence refers to an unforeseen negative consequence of medical treatment that could have been avoided by a medical practitioner. South African medical law stipulates that the injury suffered must be due to the direct result of the medical practitioner’s actions or lack thereof. In the case where the medical practitioner followed the correct procedure and the patient suffered from unfavourable consequences, medical negligence cannot be claimed.

In order to succeed in a medical negligence claim, the following must be established:

  • The healthcare provider or hospital undertook a legal duty of care in respect of the patient;
  • The legal obligation of the healthcare provider or hospital to provide a certain level of care and treatment was breached.

If you are successful in proving your case, you may receive compensation as follows:

  • Pain, suffering and loss of enjoyment of life;
  • Past and future medical treatment and surgery expenses;
  • Cost of care provided by a professional, friends or family;
  • Loss of past and future earnings;
  • Loss of life expectancy.

In the case of unforeseen complications arising from unavoidable treatment, a medical practitioner cannot be held responsible. Also note that if a medical practitioner performed the treatment to the best of his abilities, he cannot be held responsible in case of complications arising from an unknown source. A patient also has a responsibility to be careful and cannot claim for negligence if the patient has not been meticulous in doing what he or she was instructed to do.


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:

  1. Any information held by the state;
  2. 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.

Examples of medical negligence include:

  • Failure to diagnose or misdiagnosis
  • Misreading or ignoring laboratory results
  • Improper medication or dosage
  • Poor follow-up or dosage
  • Premature discharge
  • Disregarding or not taking appropriate patient history
  • Failure to recognise symptoms

Even though these are forms of medical negligence, negligence on its own does not merit a medical malpractice claim. Negligence must cause damage. The patient has to prove that the damage suffered is connected to the act or omission caused by a medical practitioner. If a patient cannot prove that and act or omission resulted in damage, then medical negligence cannot be proved and the patient would not be entitled to compensation.


The “compensation” claim is divided into what are called heads of damages. These are:

  • Past hospital and medical expenses
  • Past loss of earnings
  • Future hospital, medical and supplementary expenses
  • Future loss of earnings and interference with earning capacity
  • General damages, loss of amenities of life and disfigurement

In the event of the loss of a breadwinner, the funeral expenses as well as loss of support for dependants can be claimed.


After reading the above, please take time to contact our team of attorneys at Burger Huyser Attorneys in Johannesburg to assist you in preparing and evaluating your medical negligence claim. Our attorneys have the experience and know-how you need to be successful in a claim of this nature.