However, they are legally required to adhere to accepted standards of practice, providing professional care that doesn't put patients at unnecessary risk.
This is according to Kirstie Haslam,partner at DSC Attorneys, who says that with the alarming increase in medical malpractice cases, it is vital to know your rights if you believe that you have a valid medical negligence claim against a doctor, hospital or other healthcare provider in South Africa.
Who do you claim from?
Haslam says that if you're a victim of medical malpractice, you can institute a civil case in either the Magistrate’s Court or the High Court against the healthcare provider to claim for damages.
“In the case of malpractice in a private or State hospital, the private hospital or the State may assume vicarious liability,” she explains. “In other words, the hospital or State itself – rather than a particular medical practitioner – may be held liable for malpractice on the part of doctors, nurses, administrators and/or other employees.”
How is misconduct determined?
For a medical negligence claim to succeed, Haslam says it must be shown that:
- the hospital or healthcare provider 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.
- the breach of this undertaking resulted in direct injury to the patient
- the injury resulted in financial or emotional loss, or both, for the patient.
“Some examples of common medical misconduct in South Africa are failure to keep adequate or accurate records; failure to disclose the material risks of procedures to patients; failure to administer the right treatment at the right time; and inadequate monitoring of injured or post-operative patients,” she says.
Are you legally entitled to claim damages?
If you signed an indemnity or disclaimer during admission to hospital or for a particular procedure, you may have waived your right to hold the medical practitioner, hospital or hospital staff liable. However, Haslam says that the law in this regard is very complex and you may still be able to claim in certain circumstances even if you did sign an indemnity or disclaimer.
How soon must you make a claim?
Generally, you must claim damages for medical negligence within three years from the time when you became aware of the facts necessary to institute a claim. “There are various exceptions to this general rule though and it would be wise to seek legal advice even if three years had already passed since the date of injury,” she advises.
Your right to access your medical information
“Legally, you have a right to access your medical records, regardless of whether they're held by State hospitals or clinics, private healthcare facilities or medical practitioners in private practices,” she explains. “If the records appear to have been altered, your attorney can give notice to the defendant’s attorney, requiring that the original records be made available for inspection.”
How Attorneys can help
Medical negligence law is highly specialised and subject to legal principles and rules of procedure that differ from other areas of the law. If you're a victim of medical negligence, it's vital that you consult an attorney with expertise in this complex field like DSC Attorneys, who can provide medico-legal experts with extensive experience in medical malpractice claims.
