Medical malpractice: Is it time to get a second opinion?

Consult: Firstly, it is highly recommended that you consult a personal injury attorney who specialises in medical malpractice claims. The attorney assists in determining the validity of the claim and advises on what to expect. The gathering of evidence is crucial and will ultimately validate whether there is a claim or not, this includes obtaining all medical records, expert opinions and, if relevant, witness statements.

Test: For a medical negligence claim to succeed, it must be proven that:

  • The hospital or healthcare provider undertook a legal duty of care in respect of the patient and must have obtained the patient’s informed consent;
  • The legal obligation of the healthcare provider or hospital to provide a certain level of care and treatment was breached;
  • The breach of this undertaking resulted in direct injury to the patient; and
  • The injury resulted in financial or emotional loss, or both, for the patient.

Some examples of common medical misconduct in South Africa include failure to keep adequate or accurate records; failure to disclose the material risks of procedures to patients; administration of the right treatment at the right time; and inadequate monitoring of injured or postoperative patients.

Claims: Depending on the complexity of the claim, the general heads of damages include past hospital and medical expenses; future medical expenses; past and future loss of earnings; and general damages for pain and suffering.

Summons: After obtaining all the necessary evidence to support the claim, a summons is issued and served to the medical practitioner or the medical institution. The allegations of negligence will typically be denied at first, but an offer of settlement may follow later, once they have concluded their own investigations into the matter.

Trial: If an offer of settlement is accepted, the matter will not go to trial. If, however, no offer is forthcoming or should an offer not be accepted, the matter will go to trial. Based on the evidence presented, the presiding judge will decide whether the claim is valid and, if the claim is successful, determine the compensation that will be awarded.

Costs: Some firms work on a contingency basis, meaning that fees are payable if the claim succeeds. The amount an attorney can charge if the claim is successful is governed by the Contingency Fees Act, 1997.

Duration: This depends on whether a settlement is reached out of court or whether the case goes to trial. It can take a substantial amount of time to collect evidence, obtain expert opinions, draft and issue a summons, wait for a response from the defendant, apply for a trial date, and finally go to trial. Unless a settlement is reached, one can expect a minimum of two or three years from the date of instituting your claim to the time when it is finalised.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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