• MEC for Health, Western Cape v Q. (928/2017) [2018] ZASCA 132 (28 September 2018)
http://www.saflii.org/za/cases/ZASCA/2018/132.pdf

• TS and M S v Life Healthcare Group (Pty) Ltd and Dr Abdool Samad Suliman
http://www.saflii.org/za/cases/ZAKZDHC/2017/12.pdf

• Cecilia Goliath v The member of the executive council for health in the province of the Eastern Cape
http://www.saflii.org/za/cases/ZAECGHC/2013/72.html

• PM obo TM v MEC for Health, Gauteng Provincial Government
http://www.saflii.org.za/za/cases/ZAGPJHC/2017/346.pdf

• S[…] NO v Maitin (311/13) [2014] ZASCA 156 1 October 2014
http://www.saflii.austlii.edu.au/za/cases/ZASCA/2014/156.pdf

• The National Health Care Act
www.gov.za/documents/national-health-act

• Mediation by Gauteng Department of Health
www.news24.com/SouthAfrica/News/gauteng-health-departments-mediation-strategy-saved-r10m-in-medical-negligence-cases-says-mec-20200213

• Mediation could ease SA’s medico-legal woes but it’s no quick fix
www.bhekisisa.org/opinion/2017-08-23-00-mediation-could-ease-sas-medico-legal-woes-but-its-no-quick-fix/

• No-fault liability and the effect on health care providers
www.samj.org.za/index.php/samj/article/view/5137/3665

• Medical devices and warranty – is it adequate?
www.bizcommunity.com/Article/196/716/183535.html

• Exclusionary clauses and the consumer protection act
www.derebus.org.za/law-contract-consumer-protection-act-medical-malpractice-law/

• ‘Unnecessary’ caesarean section births are popular with SA’s medical aid members, claims report
www.timeslive.co.za/news/south-africa/2020-03-03-unnecessary-caesarean-section-births-are-popular-with-sas-medical-aid-members-claims-report/

• When can you claim malpratice for plastic surgery?
www.bizcommunity.com/Article/196/716/190543.html

Before submitting a claim for medical malpractice, it is important to clarify what constitutes malpractice in terms of the law.

Unfortunately, in medical scenarios sometimes things do go wrong, even when medical practitioners do their utmost to ensure that this does not happen.

An act of a medical practitioner can constitute a claim for medical malpractice when the acceptable standards of care are not met by the practitioner.

The Health Professions Council of South Africa, in their “Guidelines for Good Practice in Health Care Professions”, booklet one of September 2016, provides that to practice as a health care professional is based upon a relationship of mutual trust between patients and health care practitioners. The Council outlines their core ethical values and provides the following as their directive:

1. Health care practitioners should respect patients, by acknowledging their intrinsic worth, dignity, and sense of value.
2. Health care practitioners should not harm patients or act against their best interests, even when the interests of the latter conflict with their own interests.
3. Health care practitioners should act in the best interests of patients even when the interests of the latter conflict with their own personal self-interest.

When these standards aren’t met by an action of a medical practitioner you may claim for compensation. For example, a surgeon amputates the wrong leg in an operation can be sued as the best interests of the patient weren’t met and the doctor can be said to have been negligent in his or her actions. Failure to act, i.e. an omission to act, can also constitute a negligent act on the part of a medical practitioner, and therefore a claim can be brought against the practitioner as well.

Not only are direct acts such as those listed above grounds for a suit but so too are scenarios when said health care practitioner has not obtained a patient’s informed consent.

In a medical context, liability may be incurred by:

1. A breach of duty;
2. Professional negligence;
3. Assault as a result of a lack of informed consent;
4. Performance of an unnecessary procedure;

Who do you make a medical malpractice case against?

This all depends on the nature the claim, compensation may be claimed from:

• the medical practitioner responsible for the result;
• If the malpractice occurred in a private hospital, then said hospital.
• If the malpractice occurred at a government hospital, then you can claim against the state.

Should a claim be made against the state, the responsible person would be the MEC of Health of the province in which the said malpractice occurred.

Time limits for claims for medical malpractice

A medical malpractice claim must be made within three years from when the alleged act of malpractice occurred.

Exceptions do apply to certain scenarios. For example:

For claims against State hospitals i.e., where the State is the defendant, a statutory notice must be delivered to the MEC of health of the province in which the alleged malpractice occurred, informing him/her that a claim may be instituted. Said notice must be delivered within six months from when the malpractice occurred. Legal proceedings cannot start until 30 days after the notification has been sent.

Should you become aware of the malpractice after some years, the prescription begins to run after such time that you became aware of the malpractice.

Steps involved in making a medical claim.

Medical malpractice cases are often extremely complex and subject to special limitations. The finalisation of these claims relies on expert knowledge (both legal and medical) and can take many years to finalise. The steps are as follows:

1. Gathering evidence

Your attorney will work together with you to gather the necessary evidence to support a medical malpractice claim.

For example:

Asking you about the details of what happened.

Finding out if there are any witness statements.

Gathering of medical records from the hospital in question.

Obtaining expert medical testimony, normally done by sending you, the claimant, to medical experts for assessment.

Obtaining records of costs which you have incurred because of the injury caused by the malpractice.

2. Issuing a summons

A summons will be issued by your attorney to the party you have a claim against.

This is usually met by a denial of the allegations of medical malpractice by the party which you have a claim against. Note that even though this may seem worrying, once the defending party has conducted its own investigations, they may bring forward a settlement offer.

Only If a settlement offer has not been made or if you choose not to accept the offer, will we proceed to take the matter to trial.