The Institution of Legal Proceedings Against Certain Organs of State Act 2002 requires the claimant who wishes to proceed against an organ of state to give notice to that entity within six months from the date on which the debt became due, setting out the facts giving rise to the debt and any particulars of the debt that are within the knowledge of the claimant.

No, you can approach your attorney to apply for condonation for the late filing of your notice. Provided you can satisfy the courts that:
• The debt has not been extinguished by prescription;
• Good cause exists for the failure by the creditor to comply with the notice requirements; and
• The organ of state was not unreasonably prejudiced by that failure, for instance, the event was not previously reported to it and any witnesses are no longer available, there is no reason why your application for condonations shall not be granted.

Informed consent is a process in which a health care provider educates a patient about the risks, benefits, and alternatives of a given procedure or intervention. The patient must be competent to make a voluntary decision about whether to undergo the said procedure.

Yes, it is possible to sue a hospital for medical negligence, for example when the hospital staff (such as nurses, doctors, administrators and or other employees) have been negligent in their conduct, you can sue the hospital in terms of vicarious liability.

An indemnity or disclaimer is attached either to the admission form or the consent form for a specific procedure. The patient or parent/guardian is then required to sign this prior to the patient receiving the treatment. This indemnity indemnifies or protects the hospital and its staff against liability for possible negligence that may occur during the course of the treatment or procedure. In effect, one waives his/her rights to claim for any “wrongdoings” by the hospital or its staff. The enforceability of these indemnities are still a grey area in our law. Even though gross negligence cannot be indemnified against, a signed indemnity is in principle enforceable and a valid defence.

The courts however, interpret this narrowly and the enforceability will be determined on the facts and circumstances of each case individually. If you signed an indemnity or disclaimer during admission to hospital or for a particular procedure, you may have waived your right to hold the medical practitioner, hospital or hospital staff liable. However, the law in this regard is very complex and you may still be able to claim in certain circumstances even if you did sign an indemnity or disclaimer.

Prescription is a time period you are given to institute action against a party. The Prescription Act provides that “A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”
In majority of cases prescription will start to run from the date of the mis-diagnoses or botched operation. However, this is not always the case, in some cases the claimant may not be aware that he/she has been injured by the doctor or whether the negligence of the doctor caused the damage. In these cases, prescription will only begin to run once the claimant becomes aware of the actual act.

The exceptions to the above are when it involves a minor child – in this case the prescriptive period will only start to run when the minor child turns 18 – for example if the minor child turns 18 in the year 02/01/2020 then his/her matter will only prescribe in 01/01/2023.

The other exceptions are mentally ill people and those who are under curatorship.

In most cases of medical negligence, the process leading up to a trial can take somewhere between eighteen months to three years and sometimes longer. The duration of the claim depends on the Defendants attitude to liability and causation, the injury sustained, and the complexity of the complaint.

 

“Compensation” claimed is divided into what are called: heads of damages. They include:
a) Past loss of earnings;
b) Future hospital, medical and supplementary expenses;
c) Future loss of earnings and interference with loss of earning capacity;
d) General damages loss of amenities of life, disfigurement, discomfort and general pain and suffering;
e) Past hospital and medical expenses.

 

The test for negligence is set out in Kruger v Coetzee: –
a) A person in the position of the defendant
(i) would reasonably foresee the reasonable possibility of his conduct injuring another in his personal property and casing him patrimonial loss and;
(ii) Would take reasonable steps to guard against such occurrences;
b) And has failed to take such steps.

 

The elements are broadly summarised to include the following:
1) A legal duty to use due care,
2) A breach of that duty,
3) A reasonably close causal connection between that breach and the plaintiff’s resulting injury, and
4) Actual loss or damage to the plaintiff

 

You can approach an attorney to obtain advice and assist you further to investigate the matter, or you can report the doctor to the Health Professional Council of South Africa to investigate the matter and the doctors conduct.

 

The injured party or any interested party can claim on behalf of a minor or mentally impaired.

 

Prescription, as regulated by the Prescription Act 68 of 1969 (“the Act”), ordinarily runs from the date a debt becomes due and a claimant has up to three years to issue a summons in respect of such a debt.
However it is advisable to contact your attorney within 6 months or as soon as you become aware of the incident having occurred so that the Notice to institute legal proceedings against certain organs of state is done timeously so as to avoid Applications for Condonations.

 

A Contingency agreement (NO WIN NO FEES ) is entered into between an attorney and the client in which the parties agree that: Unless the client is successful to the extent described in the agreement, the attorney will not be entitled to any fees for services rendered. A fee of not more than 25% of your claim is charged to client, on success.

 

– Cerebral Palsy cases;
– Incorrect operation performed;
– Lack of informed consent;
– Incorrect diagnoses;
– Failure to refer;
– Failure to follow up and provide post-operative care;
– Diagnosis disclosure without consent;
– It can involve an act, such as administering the wrong type of medicine, or an omission for example, if a doctor fails to request the necessary special tests or investigations to diagnose a condition correctly

 

• Obstetrician
• Gynaecologist
• Paediatrician
• Professional Nurse
• Specialist Radiologist
• Neonatologist
• Paediatric Neurologist
• Neuropsychologist
• Neurosurgeon
• Educational Psychologists

 

a) The patient’s best interest or well being;
b) Respect for patients;
c) Informed consent;
d) Patient confidentiality;
e) Patient participation in their own health care;
f) Access to care;
g) Potential conflicts of interest.

 

The requirements for informed consent are that the consenting party must have: –
a) Had knowledge and must be aware of the nature and extent of the harm or risk;
b) Appreciated and understood the nature and extent of the harm or risk;
c) Appreciated and understood the risk;
d) The consent must be comprehensive, that is extend to the entire transaction inclusive of all its consequences.

 

Patients have a right to information about any condition or disease from which they are suffering. This information should be presented in a language that the patient understands. The information which patientswant or ought to know, before deciding whether to consent to treatment or an investigation, includes:
a) Details of the diagnosis and prognosis, and the likely prognosis if the condition is left untreated;
b) Uncertainties about the diagnosis, including options for further investigation prior to treatment;
c) Options for treatment or management of the condition, including the option not to treat;
d) The purpose of a proposed investigation or treatment; details of the procedures or therapies involved, including subsidiary treatment such as methods of pain relief; how the patient should prepare for the
procedure; and details of what the patient might experience during or after the procedure including common and serious side effects;
e) For each option, explanations of the likely benefits and the probabilities of success; and discussion of any serious or frequently occurring risks, and of any lifestyle changes which may be caused or necessitated
by the treatment;
f) Advice about whether a proposed treatment is experimental;
g) How and when the patient’s condition and any side effects will be monitored or re-assessed;
h) The name of the doctor who will have overall responsibility for the treatment and, where appropriate, names of the senior members of his or her team;
i) Whether students will be involved, and the extent to which students may be involved in an investigation or treatment;
j) A reminder that patients can change their minds about a decision at any time;
k) A reminder that patients have a right to seek a second opinion;
l) Details of costs or charges which the patient may have to meet;
m) The benefits, risks, costs and consequences generally associated with each option; and
n) The patient’s right to refuse health services and explain the implications, risks and obligations of such refusal.

 

Causation in medical negligence cases means that the negligence resulted from a breached duty of care that has caused the injury. Hence you would need to prove that a duty of care did exist and that such duty was breached by the health care practitioner thereby causing the injury/loss to the patient.

 

Factual causation is the unbroken sequence of events that results in an outcome being caused by one or more (in)actions. A’s car rear ends B’s car, resulting in damage to the back end of B’s car. As the name implies, factual causation is all about proof of facts, and more specifically, a sequence of facts.
Legal causation is the “causal relationship between the defendant’s conduct and end result”. It is concerned with the remoteness of damage. This entails an enquiry into whether the wrongful act is sufficiently closely linked to the harm for legal liability to ensue. Generally, a health care practitioner is not liable for harm that is too remote from the conduct concerned or harm that was not foreseeable.

 

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of
negligence, and without negligence the incident would not have happened. This means that a patient would only need to prove the facts of the occurrence itself in order to establish a prima facia case.

 

It is based on both contract and delict.

 

Verbal, written or combination of both.

 

In order to decide who to sue the collection of data and evidence is key. So collect as much supporting evidence as you can. Make a written record of your injuries or ailments in the order in which it happened, take photographs and request copies of your medical records, x-rays, scans and detailed statement of account, keep prescriptions issued by medical practitioners safely. Once you have accumulated as much information as you can, contact Campbell Attorneys.

 

a) The purpose of the Act is to establish the Health Professions Council of South Africa and professional boards;
b) To provide or control over education, training and registration for and practicing of health professions registered under the Act.
c) To serve and protect the public in matters involving the rendering of health services by persons practising a health profession;
d) To exercise its powers and discharge its responsibilities in the best interest of the public and in accordance with national health policy determined by the Minister;
e) To ensure the investigation of complaints concerning persons registered in terms of this Act and to ensure that appropriate disciplinary action is taken against such persons in accordance with this Act in order
to protect the interest of the public.
f) To aid in the determination of the Negligence of the Hospital.

 

The CPA prohibits any term in a contract that purports to limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributed to the gross negligence of the supplier or any person acting for or controlled by the supplier. This means that exclusionary clause that excludes liability for the gross negligence of a healthcare provider would be void in terms of the Act.
Section 61 will have retrospective impact as from 24 April 2010. This essentially means that the consumer/patient may be able to take action against the doctor for any harm caused as result of, for example, the failure of a product supplied by the doctor to the patient without any negligence on your side, since 24 April 2011.

Liability of the entire supply chain, being the producer or manufacturer, the importer, the distributor, the retailer, and also the service provider, is contained within this section. So be sure that the medication, consumables, devices etc. that the doctor issued or prescribed to the patient is of good quality and that the doctor gives the patient adequate instructions for the usage of any products supplied, as the doctor might be held liable for failure or adverse effects.