What Is Medical Negligence?
Medical negligence is a form of professional negligence involving healthcare treatment.
Doctors, nurses and other healthcare professionals are not expected to guarantee a successful outcome. They are, however, required to exercise the degree of professional skill and care reasonably expected from a practitioner in the relevant circumstances.
Where treatment falls below that standard and the failure causes injury or additional harm to the patient, a damages claim may arise.
Some complications are recognised risks of treatment even when the medical team has acted appropriately. The existence of a complication, unsuccessful operation or unexpected outcome does not by itself establish negligence.
What Can Medical Negligence Look Like?
Medical negligence can arise in many different clinical settings. The circumstances must always be assessed individually, but common allegations include the following:
Failure or Delay in Diagnosis
A failure to investigate symptoms appropriately or an unreasonable delay in diagnosing a condition may cause a patient to lose an opportunity for earlier treatment.
Surgical Negligence
Claims can involve negligent surgical technique, avoidable injury to organs or structures, or failures in peri-operative care.
Medication Errors
Incorrect medication, inappropriate dosage or failures to consider relevant contraindications may cause serious harm in appropriate cases.
Birth Injuries
Claims may arise from negligent management of pregnancy, labour, delivery or neonatal care where the conduct causes injury to the mother or child.
Failure to Monitor
A failure to monitor a patient's condition or respond appropriately to deterioration can form part of a negligence claim.
Post-Operative Care
Negligent management of infection, bleeding, deterioration or other post-operative complications may result in additional injury.
What Must Be Proved?
A successful medical negligence claim requires considerably more than showing that the patient was dissatisfied with the treatment or that an adverse outcome occurred.
The evidence must establish the legal requirements for liability.
A Duty of Care
There must be a relevant professional relationship or other legal basis upon which the healthcare provider owed the patient a duty to provide treatment with reasonable skill and care.
Negligent Conduct
The conduct of the healthcare professional must have fallen below the standard legally required in the particular circumstances.
Causation
It must be established that the negligent act or omission caused, or legally contributed to, the injury or additional harm for which compensation is claimed.
Loss or Damage
The patient must establish legally recoverable loss flowing from the negligent treatment.
How Is the Standard of Care Determined?
The law does not assess medical negligence with the benefit of hindsight simply because a treatment decision later produced an undesirable result.
The conduct is assessed in the context in which the healthcare professional was required to act, taking into account the clinical circumstances and the professional standard reasonably expected.
Expert medical evidence frequently plays a central role because a court must understand what a reasonably competent practitioner would have done in the circumstances and whether the treatment provided departed from that standard.
Healthcare professionals are not held to a standard of perfection. The legal enquiry concerns reasonable professional skill and care in the circumstances.
Why Are Medical Experts So Important?
Medical negligence litigation sits at the intersection of law and specialised medicine. Attorneys and courts cannot simply substitute their own opinions for proper clinical expertise.
An independent expert may be required to analyse the medical records, identify the appropriate standard of care, determine whether the treatment departed from that standard and express an opinion on causation.
Standard of Care
The expert can explain what treatment or clinical response was reasonably required in the circumstances.
Breach
The expert can assess whether the treatment actually provided departed from acceptable professional practice.
Causation
Expert evidence may address whether different treatment would probably have prevented or materially altered the patient's injury or outcome.
Prognosis
Appropriate specialists can assess permanent consequences, future treatment and the patient's long-term prognosis.
Negligence Alone Is Not Enough: Causation Must Also Be Proved
This is one of the most important principles in a medical negligence claim.
Even where a healthcare professional made a negligent error, the claimant must still establish the necessary causal connection between that negligence and the injury for which damages are sought.
For example, a delay in diagnosis may constitute negligent conduct, but the further question is whether earlier diagnosis and treatment would probably have produced a materially different outcome.
Was the treatment negligent? and did that negligence cause the harm? are not the same question. A claimant ordinarily needs to establish both.
Does a Bad Medical Outcome Mean You Have a Claim?
Not necessarily.
A patient may experience a serious complication even where appropriate treatment was provided. Conversely, conduct that initially appears to be an unavoidable complication may, after examination of the medical records and expert evidence, reveal failures in treatment, monitoring or response.
This is why medical negligence matters should generally be assessed from the actual records rather than from assumptions about what must have happened.
What Evidence Is Important?
The medical records are usually one of the most important starting points in assessing a potential claim.
Hospital & Doctor Records
Consultation notes, admission records, nursing records, operation notes and discharge records may establish what treatment was provided and when.
Tests & Imaging
Blood results, pathology, X-rays, CT scans, MRI scans and other investigations can be important to the clinical chronology.
Prescriptions & Drug Charts
Medication records may be relevant where the complaint concerns prescribing, dosage or administration.
Correspondence & Complaints
Correspondence with doctors, hospitals and other healthcare providers should be retained where relevant.
Patients considering a claim should preserve medical records, invoices, photographs, correspondence and a clear chronology of important events, treatment and symptoms.
How Is a Medical Negligence Claim Investigated?
These claims should generally be investigated methodically before litigation is launched.
Initial Legal Assessment
The circumstances, treatment history, injury and potential time limits are considered at the outset.
Obtain the Medical Records
Relevant clinical records are obtained so that the treatment can be reconstructed and independently assessed.
Independent Expert Review
An appropriately qualified medical expert reviews the evidence and considers whether the treatment fell below the required standard.
Investigate Causation
The evidence must address whether the identified negligent conduct caused or materially contributed to the injury or additional harm.
Assess the Damages
Once liability appears sustainable, the financial and non-financial consequences of the injury must be properly quantified.
Institute Proceedings Where Appropriate
If the claim cannot be resolved and litigation is warranted, summons may be issued after compliance with any applicable procedural and statutory requirements.
What if the Negligence Happened at a Public Hospital?
Claims arising from treatment at a provincial public hospital require particular attention because the defendant will ordinarily be the responsible provincial Member of the Executive Council for Health in their representative capacity.
Proceedings against an organ of state can trigger additional statutory requirements under the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.
In general terms, the Act requires written notice of an intention to institute legal proceedings to be served on the relevant organ of state within six months from the date on which the debt became due, subject to the provisions governing when the debt is regarded as due and the possibility of applying for condonation where the statutory requirements are met.
Claims against the State can involve additional notice, service and procedural requirements. A patient should not wait until the ordinary prescription period is nearly complete before seeking advice.
How Long Do You Have to Bring a Medical Negligence Claim?
Time limits are critically important in medical negligence matters.
Prescription is governed by South African prescription law, and the date upon which a claim begins to prescribe can depend on when the debt became due and when the claimant had, or is legally deemed to have had, the necessary knowledge.
Additional rules can apply to minors, persons under certain legal disabilities and claims against organs of state.
If you suspect medical negligence, obtain legal advice as early as possible. Prescription and statutory notice requirements can destroy an otherwise viable claim if they are ignored.
What Compensation Can Be Claimed?
The damages recoverable depend on the consequences of the negligent treatment and the evidence available in the particular matter.
A serious medical negligence claim may contain several distinct heads of damage.
Past Medical Expenses
Qualifying medical and treatment costs already incurred as a result of the injury may form part of the claim.
Future Medical Expenses
Future treatment, rehabilitation, therapy, assistive devices and care requirements may require expert assessment.
Past Loss of Earnings
Income already lost because of the negligent injury may be recoverable where properly proved.
Future Loss of Earnings or Earning Capacity
Permanent disability may reduce a claimant's future ability to work and earn income.
General Damages
Depending on the circumstances, compensation may be claimed for pain and suffering, disability, disfigurement and loss of amenities of life.
Care & Assistance
Severe injuries may create lifelong requirements for carers, therapy, equipment, accommodation adaptations or other support.
How Are Future Losses Calculated?
Serious medical negligence claims can involve consequences extending decades into the future.
Appropriate medical and other experts may be required to determine the claimant's future treatment, rehabilitation, care needs, ability to work and expected long-term limitations.
Actuarial evidence may then be used to assist with the calculation of qualifying future financial losses.
A large damages figure cannot simply be selected because an injury is serious. Each component of the claim must be supported and properly quantified.
Birth Injury Claims
Obstetric and neonatal negligence claims can be among the most complex medical negligence matters.
Where a child suffers conditions such as cerebral palsy or neurological injury, it is not enough simply to establish that the child was injured around the time of birth.
The evidence may require detailed analysis of antenatal records, cardiotocography, labour progression, foetal monitoring, timing of intervention, delivery records, neonatal condition, imaging and the child's subsequent development.
Experts may be required from several disciplines to address both the alleged negligence and whether that negligence caused the child's neurological injury.
Surgical Negligence Claims
An injury occurring during surgery does not automatically establish that the surgeon was negligent.
Surgical procedures carry recognised risks, and some adverse outcomes can occur despite appropriate technique.
A proper investigation may consider the surgical indication, technique, equipment used, anatomical structures involved, operative records, recognised complications, post-operative monitoring and the response when complications became apparent.
In surgical claims, the distinction between a recognised complication and a negligently caused injury can require detailed specialist evidence.
Failure to Diagnose or Delayed Diagnosis
A delayed diagnosis can have devastating consequences, but delay alone does not necessarily establish a damages claim.
The investigation must consider whether a reasonably competent practitioner should have diagnosed or investigated the condition earlier and, importantly, whether earlier intervention would probably have changed the patient's outcome.
This causation enquiry can be particularly important in progressive illnesses where the underlying disease itself may already have caused significant harm.
Can You Claim for Negligence at a Private Hospital?
Yes. Medical negligence claims are not confined to public healthcare.
Claims may arise from treatment provided by private doctors, specialists, hospitals or other healthcare professionals and institutions.
However, identifying the correct defendant or defendants is important. The legal relationship between a doctor, private hospital and patient can differ from the relationship between medical personnel and a provincial public hospital.
Does Every Medical Negligence Claim Go to Trial?
No.
Litigation may be necessary where liability or the value of the claim remains disputed, but parties can resolve matters by agreement where an appropriate settlement is reached.
Settlement discussions can take place at different stages of the process. A matter should nevertheless be properly investigated and valued before settlement so that the long-term consequences of a serious injury are not overlooked.
Why Are Medical Negligence Claims Complex?
These matters frequently require extensive medical records, multiple experts, detailed factual investigation and careful analysis of both liability and damages.
The existence of an injury may be obvious while the legal cause of that injury is fiercely disputed.
This is why a medical negligence claim should be assessed carefully before proceedings are instituted.
Specialist Medicine
The alleged negligence may involve highly specialised clinical decisions that require expert interpretation.
Causation
The claimant must distinguish harm caused by negligence from harm caused by the underlying illness or unavoidable complications.
Multiple Experts
Different experts may be required to address liability, prognosis, future treatment, employment and financial loss.
Long-Term Damages
Severe injuries may require calculation of medical and care needs extending throughout the claimant's lifetime.
What Should You Do if You Suspect Medical Negligence?
If you believe that negligent medical treatment has caused you or a family member serious harm, preserve the available evidence and obtain legal advice promptly.
Write Down the Timeline
Record the dates of consultations, treatment, operations, deterioration and important conversations while the events remain fresh in your memory.
Preserve Your Documents
Keep medical reports, prescriptions, invoices, correspondence, photographs and other relevant records.
Obtain Legal Advice Early
Early advice allows prescription, statutory notice requirements, medical records and potential expert evidence to be considered before time becomes a problem.
Allow the Evidence to Determine the Claim
The merits should be assessed from the medical records and independent expert evidence rather than assumptions about the outcome.
The Key Takeaway
Medical negligence occurs when healthcare treatment falls below the legally required standard of reasonable professional care and that negligent conduct causes compensable harm.
A poor outcome, complication or medical error does not automatically establish a claim. Negligence, causation and damages must be properly investigated and proved.
Because these cases depend heavily on specialised medical evidence, early investigation of the records and appropriate expert assessment can be critical.
Do not wait until years have passed before investigating the matter. Medical records, expert evidence, prescription and, in public hospital claims, statutory notice requirements can all affect whether a claim can proceed.
Were You Harmed by Negligent Medical Treatment?
Danel Campbell Attorneys assists clients with medical negligence claims involving public and private healthcare, including surgical injuries, delayed diagnosis, birth injuries and other serious treatment-related harm. We assess the circumstances, obtain the relevant records and investigate the medical and legal basis of the claim.
Explore Personal Injury Services →This article provides general legal information concerning medical negligence in South Africa and does not constitute legal advice. Liability depends on the facts, medical evidence, causation, applicable legislation and procedural requirements of each matter. Prescription and statutory notice requirements may apply, particularly where a claim is brought against an organ of state. Legal advice should be obtained promptly in relation to a specific matter.