What is medical negligence and how do I prove it?

Medical negligence is treatment that falls below the standard of a reasonably competent practitioner in that field, where that failure causes you harm. To succeed in a claim you have to prove three things: that the practitioner or hospital owed you a duty of care, that they breached the standard expected of a reasonable practitioner in the same position, and that the breach actually caused your injury or loss. All three, not two.

If you were treated at a state hospital or clinic, deal with the deadline before anything else. The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 generally requires you to give the organ of state written notice of your intended claim within six months of the debt arising, and to issue summons within three years. Six months goes fast when you are still recovering. Claims against private practitioners and private hospitals fall under the ordinary three year period in the Prescription Act 68 of 1969.

A bad outcome is not the same as negligence

This is the hardest part for patients to hear. Medicine carries risk. Operations fail, infections happen, and some conditions get worse whatever is done. The law does not ask whether the outcome was bad. It asks whether the care was reasonable.

The test is what a reasonable practitioner with the same skills, in the same circumstances, would have done. A general practitioner is measured against a reasonable general practitioner. A specialist is measured against a reasonable specialist in that speciality. A practitioner is not negligent simply because another doctor would have chosen a different treatment, as long as the choice made was one a responsible body of practitioners would support.

The three things you must prove

1. Duty of care. This is usually the easy part. Once a practitioner or a hospital accepts you as a patient, the duty exists. It rarely needs to be argued.

2. Breach of the standard. This is where cases are won and lost. Examples of what can amount to a breach include a failure to diagnose something that the symptoms and tests plainly pointed to, operating on the wrong site, leaving a swab or instrument inside a patient, a delayed caesarean where the foetal monitoring showed distress, a medication or dosage error, a failure to monitor after surgery, or a failure to obtain informed consent. Informed consent means the risks and the reasonable alternatives were explained to you in a way you could understand, and the National Health Act 61 of 2003 puts that obligation on the practitioner.

3. Causation. You have to show that the breach caused the harm. This is often the real obstacle. If a cancer diagnosis was delayed by four months, the question is not only whether the delay was unreasonable, but whether an earlier diagnosis would actually have changed the outcome. If the answer is no, the claim fails even though the care was poor.

Why expert evidence is not optional

A court will not take your word, or your new doctor's off-the-record comment, on whether the standard was met. You need an independent expert in the same field to review the records and give an opinion on standard of care and on causation. Most attorneys who do this work will not issue summons without a supportive merits opinion, and that opinion is usually the first real cost in the file.

That opinion costs money whether it is positive or negative. Even under a no win no fee arrangement, you can remain liable for disbursements like expert reports. Read How does no win no fee work in South Africa? before you sign, and see our cost page for typical ranges.

Get your records, in writing, now

Your medical records are the case. Without them nobody can assess anything.

Write to the hospital or practice and ask for a complete copy of your file, including nursing notes, observation charts, theatre notes, anaesthetic records, consent forms, laboratory and radiology results, and the images themselves. Keep the request and the date. Send it by email. If a private practice or hospital refuses, a formal request under the Promotion of Access to Information Act is available. For a state facility, address the request to the hospital chief executive officer and copy the provincial health department.

Also write down your own timeline while you remember it: dates, who you saw, what you were told, what you complained of and what was done. Keep every appointment card, discharge summary and prescription.

What compensation covers, and what it does not

If a claim succeeds, damages typically cover past and future medical costs, past and future loss of earnings, and general damages for pain, suffering and loss of amenities. In a birth injury case, the future care costs for the child usually dominate everything else.

No figure can be given upfront. It depends entirely on the injury, the future care needed and the expert evidence. Be wary of anyone who quotes you a number at the first meeting.

Free and cheaper routes worth using

• The Health Professions Council of South Africa handles complaints about the professional conduct of registered practitioners. It can investigate and discipline, but it does not award you compensation. It is still worth using, and a finding can be useful.
• The hospital's own complaints process, and for a public facility the provincial health department's complaints unit. This is often the quickest way to get an explanation and a copy of your records.
• The Office of Health Standards Compliance deals with complaints about the standard of health establishments.
• Legal Aid South Africa on 0800 110 110, if you cannot afford advice.

A complaint to any of these does not stop the legal clock. If you are also considering a claim, keep the six month notice period and the three year prescription period firmly in mind while the complaint runs.