What Constitutes Medical Negligence?

The Constitution of the Republic of South Africa establishes the fundamental human right to have access to health care services in section 27(1)(a) in Chapter 2 titled the Bill of Rights. Health care is of the utmost importance to prevent diseases and improve one’s quality of life.

Medical malpractice occurs when reasonable and appropriate treatment was neglected by the health care professional. When the treatment or neglected action by the health care professional results in harm, injury or death to the patient.[1]

Medical malpractice claims cannot be made based solely on negligence. Damage must result from negligence. The patient must prove that the damage was caused by the act or omission. A patient cannot establish medical negligence and will not be entitled to compensation if they are unable to prove how a particular act or omission caused damage.

One needs to prove that a medical professional was responsible for the patient’s injury or medical side effects. The test for medical malpractice in relation to a healthcare practitioner is articulated in the case of Chapeikin and Another v Mini (103/2015) [2016] ZASCA 10, the court had to use the test for negligence to determine if the appellants, Dr Chapeikin and Dr Sher acted negligently. “The court had to establish the existence of negligence stating that fault arises if a reasonable person in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence, and the defendant failed to take such steps.”

An example of a medical negligence matter occurred in HN v MEC for Health, KZN (1287/2014) [2018] ZAKZPHC 8, the court has established a procedure to prove that the defendant’s servant neglected the duty of care to the pregnant woman at the time. This then resulted in harm to the child born later by caesarean section. This was a direct result of delays in procedures and negligence by medical staff.

General and special damages are the two categories into which claims for compensation are divided. These are:

  • Past hospital and medical expenses
  • Past loss of earnings
  • Future hospital, medical and supplementary expenses
  • Future loss of earnings and interference with earning capacity
  • General damages, pain and suffering, loss of amenities, and loss of expectation of life.

We aim to obtain compensation from the health professionals and institutions responsible for the injury or death of a patient. We obtain this by assisting our clients through the modes of litigation and settlement negotiations.

With regard to claims involving medical negligence, Gert Nel Incorporated has an excellent track record. To determine whether you could have a claim for medical negligence, contact us right away.

By: Monique Bredenkamp

       Candidate Attorney at Gert Nel Incorporated Attorneys