If you or a member of your family, like your baby at birth, have been injured by substandard care from a healthcare professional you may have a case for compensation by instituting a medical negligence claim.
These are the most common questions personal injury clients ask about medical negligence claims in South Africa.
1. What is a medical negligence claim?
Medical negligence as a legal concept amounts to wrongful actions as determined by courts of law. Negligence refers to a wrongful act or omission, or both.
Negligence, in the legal sense, is defined as:
(1) a wrongful act or failure to act, which causes (2) foreseeable harm in circumstances where it would have been reasonable to prevent such harm.
Medical treatment, or failure to treat appropriately, is judged by South African courts to amount to negligence when the medical treatment rendered falls (3) below the standard of a (4) reasonable practitioner in (5) that discipline under the (6) prevailing circumstances.
Each one of these 6 criteria is taken into account by the courts.
2. Who qualifies for a medical negligence claim?
Claims may be made by South Africans, tourists and foreigners seriously affected by medical negligence incidents in South Africa.
3. Who can claim for a medical negligence claim?
A victim of gross medical negligence has a right to sue the hospital that treated you. This can be for birth defects, delays in treatment and a number of other cases.
4. What kind of medical negligence incidents would allow me to claim?
When it comes to medical negligence, we work mostly with:
- Birth injuries, with a special focus on:
- Cerebral Palsy
- Erb’s Palsy
- Klumpke’s Palsy
Other types of medical negligence we may consider depending on the circumstances would be:
- Misdiagnoses or failure to diagnose serious conditions
- Surgical errors
- Anaesthesia errors
- Negligent treatment
- Medication errors
- Improper wound care
5. What documents do you need to claim for a medical negligence incident?
When dealing with a medical negligence claim it is important to keep all documentation as evidence, sometimes it is very difficult to obtain these documents if you have lost them or have not received them from the hospital. A benefit of working with expert personal injury attorneys such as Adendorff Attorneys Inc., is that we will do all the run around for you – we will source all the medical reports, discharge letters etc and put together an expert team of medical experts who will assist us in building your case.
6. How long does it take to settle a claim for medical negligence?
A medical negligence case can take 2-3 years to settle and up to 5 or 6 years if the case goes to trial. If the defendant decides to settle, it will reduce the time it takes to finalise a claim. But a settlement can only be offered after court proceedings are already underway.
7. Once the matter is settled, how long does it take for a medical negligence claim to pay out?
It usually takes around one month for the money to be paid out once the matter is settled.
8. How much does a medical negligence claim payout?
Each case is unique, so it is impossible to give anyone an idea of a settlement value for a medical negligence claim without having a thorough understanding of the case.
The pay-out value is based on a number of varying factors:
- Extent and severity of injuries
- Employment, were you previously employed, can you work post incident?
- Medical expenses past and future
9. What kind of medical negligence claims are paid out?
The kind of claims that could be paid out are:
- Birth injuries resulting in conditions such as Cerebral Palsy, Erb’s Palsy and Klumpke’s Palsy
- Removal of the incorrect organ or limb
- Medication errors
- Botched surgeries
- Anaesthesia negligence
- Misdiagnosis of serious conditions
- Surgical errors
- Failure to timeously treat known complications of procedures
10. Can I claim for a medical negligence incident after 3 years?
The time limit for proceeding with a medical negligence claim is three years from when the alleged negligence occurred.
11. My child was under the age of 18 when the incident happened, does the 3-year time limit still apply?
If the injured person was under the age of 18 years when the alleged negligence occurred, a claim can still be persued even if three years have lapsed.
12. Can you claim for medical negligence without a lawyer?
A medical negligence case dealing with a serious injury would have to go to court as a general litigation matter. Please don’t try and do this alone, we are here to help you.
In a direct action against the Department of Health or others for medical negligence, you will have the following difficulties:
- Claiming directly for medical negligence will require you to know exactly who to sue to get a higher payout
- Using a lawyer to claim for medical negligence will get you a higher payout
- Claiming directly for medical negligence means the burden is on you to prove your case
- Using a lawyer to claim for medical negligence will help you prove your case
13. What medical negligence injuries can be compensated for?
Minor injuries with no life impact cannot be claimed for. At Adendorff Attorneys Inc. we specialise in birth injuries such as Cerebral Palsy, Erb’s Palsy and Klumpke’s Palsy.
Some of the other medical injuries may be:
- Removal of the incorrect organ or limb
- Hospital errors
- Medication errors
- Botched surgeries
- Anaesthesia negligence
- Misdiagnosis of serious conditions
- Surgical errors
- Failure to timeously treat known complications of procedures
14. What medical negligence injuries can not be claimed for?
- Minor injuries with no life impact cannot be claimed for
- Claims from accidents which took place many years ago
15. Can a medical negligence claim be rejected?
Medical malpractice cases have a time limit in which you have to submit a claim which is within 3 years. Every case has a time limit prescribed to it, which means if you leave it too long before approaching an attorney, you may find that too much time has passed and your right to claim has lapsed. Minor injuries with no life impact cannot be claimed for.
16. Does a medical negligence claim include claims for pain and suffering?
Victims of medical negligence can claim compensation for general damages for pain and suffering. So, in a medical negligence case, the defendant health care provider can be liable for the harmed patient’s pain and suffering, in addition to other damages like the cost of medical treatment and lost income.
17. What affects the payout amount for a medical negligence claim?
This is dependent on a number of varying factors.
- Extent and severity of injuries
- Medical expenses past and future
18. Are there any medical negligence claims you do not deal with?
Yes, we do not deal with:
- Claims from incidents which took place many years ago
- Death of a minor
- Loss of am unborn child
- Funeral claims
- Minor injuries
19. My baby died during birth or in my womb. Do I still have a claim?
Unfortunately, the Department of Health makes no allowance to claim for the death of a minor (under the age of 18 years) nor the loss of an unborn child. However, the Department of Health does allow compensation for limited funeral costs. Adendorff Attorneys Inc. does not assist with funeral claims.
20. What are medical professionals’ responsibilities?
- To treat all their patients equally and provide them with the same level of concern.
- To protect life, within the confines of a patient’s right to physical autonomy and decision-making power.
- To ensure that patients are not subjected to cruel, inhuman or degrading punishment or treatment.
- To protect the privacy and confidentiality of their patients and to only disclose health care, treatment, diagnostic and other health information with the patient’s informed and written consent or when authorised by law or a court to do so.
Contact Adendorff Attorneys Inc. today for help
Medical negligence can have a serious impact on your life. You may be entitled to compensation for the harm you have suffered. Pursuing a claim can be costly and time-consuming, but it may be the best way to get the justice you deserve. Contact us today on 021 122 529 or email us at info@aalaw.co.za to see if you have a case.
