MEDICAL NEGLIGENCE
A phrase one would hope never to be associated with, unfortunately such is not the case in our reality.
“At 2019, the public health care department had R 80.4 billion in medical negligence claims levied against them”.
Medical Negligence may be defined as an unforeseen negative consequence of medical treatment that could have been avoided by a medical practitioner. As per South African medical law the injury suffered must be due to the direct result of the medical practitioner’s actions or lack thereof. It follows therefore In the case where the medical practitioner followed the correct procedure and the patient suffered from unfavorable 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.
IT IS IMPORTANT TO NOTE THAT:
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.
Conduct stipulated by law:
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.
Time periods:
As a general rule, a claim has to be lodged at court within 3 years of the patient becoming aware of the problem or when the negligence occurred. Should the claim not be lodged within three years of such date, the claim will be deemed to have prescribed and no recourse will be available.
Exceptions:
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.
Most frequent examples of medical negligence:
- Failure to diagnose or misdiagnosis
- Misreading or ignoring laboratory results
- Improper medication or dosage
- Premature discharge
- Disregarding or not taking appropriate patient history
- Failure to recognize symptoms