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.

A worked example

Naledi goes to a private hospital with severe abdominal pain. The casualty doctor diagnoses gastritis, prescribes antacids and sends her home. She returns two days later with a ruptured appendix and peritonitis, spends three weeks in intensive care and is left with adhesions that cause chronic pain.

Applying the three elements, illustratively:

• Duty: the hospital and the casualty doctor accepted her as a patient. Not in dispute.
• Breach: the question is whether a reasonable casualty doctor, faced with her symptoms, her temperature and her blood results, would have considered appendicitis and ordered further tests or observation. An independent emergency medicine specialist reviews the records and gives an opinion on that.
• Causation: the question is whether earlier diagnosis would have avoided the rupture, the intensive care stay and the adhesions. A surgeon gives an opinion on that.

If both experts support her, Naledi has a claim for her additional medical costs, the income she lost while in hospital and recovering, and general damages for the pain and the long term effect on her life. If the surgeon says the appendix would probably have ruptured anyway, the claim on causation fails even if the casualty doctor was careless. No figures are given here because none can honestly be given without the expert evidence.

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 to do this week

1. Work out whether the facility was public or private, and if it was public, calculate six months from the date of the harm. Write that date down.
2. Send a written request for your complete records to the hospital or practice, and keep proof of sending.
3. Write your own timeline of the treatment while it is fresh, with names, dates and what you were told.
4. Photograph any visible injury, scar or wound and keep photographing it as it changes.
5. Collect proof of what the harm has cost you: accounts, receipts, sick notes and payslips.
6. If the facility was public and the six months is close, contact an attorney or Legal Aid immediately about sending the statutory notice.

Realistic timeline

Medical negligence claims are slower than most injury claims because nothing sensible can happen before the records and the merits opinion are in hand.

• Records: weeks to months, and often longer from a state hospital.
• Merits opinion: several weeks to a few months after the expert receives the full file.
• Statutory notice and summons: notice within six months for a public facility; summons within three years.
• Further expert reports on the extent of the harm and its cost: many months, especially in a birth injury case where the child's future needs have to be assessed by several specialists.
• Settlement or trial: these claims are heavily defended and often run for years before they resolve.

Common mistakes and what they cost

• Waiting for the hospital's complaint process to finish before doing anything else. The six month notice period keeps running. Miss it and you may need condonation from a court just to proceed.
• Relying on a sympathetic comment from a later doctor. It is not evidence. Only a formal expert opinion counts.
• Asking for records verbally. A written request with a date is what gives you proof if the file is later incomplete or altered.
• Signing anything the hospital offers in exchange for further treatment. It may contain a waiver of your claim.
• Assuming a bad result proves negligence. Causation defeats more claims than breach does.

Your rights and the practitioner's rights

You have the right to: a copy of your records; an explanation of what went wrong; informed consent before treatment; complain to the regulator; and sue for proven negligence within the time limits.

The practitioner or hospital has the right to: defend the treatment as one a responsible body of practitioners would support; argue that the harm would have occurred anyway; require you to prove each element with expert evidence; and, for an organ of state, insist on the statutory notice.

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.