Prescription in medical negligence claims

Prescription in medical negligence claims and its exception to minors

Our article aims to provide more information about prescription in medical negligence claims, outlining the meaning of various terms and providing a simple scenario for clarity.

If you have a possible medical negligence claim it is important to take cognisance of the prescription period of the claim. Simply put, prescription can be described as the time in which you may institute legal proceedings against the debtor and is regulated by the Prescription Act 68 of 1969 (“the Act”). The purpose of prescription is to ensure the certainty and finality of disputes, as well as to hold creditors, who do not take the reasonable steps in complying with the Act, accountable. The normal period of prescription in a medical negligence claim is 3 years and as a general rule prescription starts running from the date the “debt” arose. In Makate v Vodacom (Pty) Ltd [2016] ZACC 13 the meaning of “debt” in the Act included “an obligation to pay money, deliver goods, or render services”. In a medical negligence claim the “date the debt arose” translates to the date of the incident or the date on which the alleged medical negligence occurred. Once prescription starts running, one must interrupt the period of prescription by serving summons on the debtor.

It is also important to note that should the possible medical negligence claim be against an organ of state, such as the Department of Health, the provisions of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 must be adhered to. In terms of the Act, one is required to notify its intention to the organ of state in writing within a period of 6 months from the date on which the alleged negligence occurred. Thereafter, legal proceedings may only be instituted once 30 days has elapsed. Should one however fail to give notification within the prescribed period, one can apply for condonation by giving compelling reasons for the late notice. Contrary to the Section 3 Notice, condonation of an elapsed prescription period once it is raised as a special plea by the defendant is unlikely to be accepted by our courts, as seen in the case of Links v Department of Health, Northern [Cape] Province 2016 (4) SA 414 (CC), where the court unanimously upheld an earlier judgment by Mamosebo AJ dismissing the applicant’s claim with costs on the basis that his claim against the respondent had become prescribed. Thus, it is very important to immediately seek professional legal representation once you suspect or have knowledge of an alleged medical negligence.

The Act make provisions for certain exceptions to the running of prescription in section 3. One instance, inter alia, is when the person against whom the prescription is running is a minor. Section 3(1)(a) and (c) read together with section 13(1) of the Act provides that the running of prescription against a minor will be postponed until the minor has reached the age of majority (i.e. by obtaining majority the impediment of being a minor would have ceased to exist). In addition to such postponement, the running of the prescription against a minor will be delayed by a year after such an impediment has ceased to exist.

A simple scenario to illustrate the above:

John is currently a 15-year-old boy and has an alleged medical negligence claim. He will obtain the age of majority in 2025 (18 years old).

John’s period of prescription will only start running against him in 2026, as it is further delayed by a year after he has obtained the age of majority. Thus, John will have to interrupt the period of prescription before 2029 if he wishes to pursue his medical negligence claim.

The matter of prescription can often be a complex matter and other exceptions and requirements may be applicable to your case. Our experienced attorneys at Gert Nel Inc. Attorneys have extensive experience in medical negligence claims and are committed to getting the compensation you are owed. Contact us online or call us on 012 333 8290 to arrange a consultation.

By Hee-Rak Lee

Attorney at Gert Nel Inc. Attorneys