Written by Ankia Witte
Medical treatment does not always produce the desired outcome. Even where care is appropriate and diligent, complications may arise. However, where harm results from substandard medical treatment, the law recognises a claim for medical negligence.
Understanding the distinction between an unfortunate outcome and actionable negligence is critical in determining whether a legal claim exists.
What is Medical Negligence?
Medical malpractice includes negligent and intentional wrongful acts, whereas medical negligence occurs at the failure of exercising the standard of skill and care that is expected of a reasonably competent practitioner in their branch of
profession[1]. The legal test considers whether a reasonably competent practitioner within their relevant speciality, i.e. general practitioner, specialist, or surgeon, would have foreseen the preventable risk of harm and taken reasonable steps to prevent it.
At its core, the enquiry is simple: Would a reasonable practitioner have acted differently in the same circumstances?
When is Medical Negligence Present?
Not every adverse outcome gives rise to legal liability. Medicine is not an exact science, and poor outcomes can occur even where appropriate care has been provided.
For example [2],
- Surgical intervention which always carries a risk of complications
- Adverse reactions to medication
- Unsuccessful treatment outcomes, despite appropriate care
- Known complications, such as infections, arise despite sterile procedures and post-operative care
- Disclosed risks and side effects associated with procedures
- The progression of a disease despite the administration of appropriate treatment
Where a healthcare provider has acted reasonably and in accordance with accepted medical practice, the law will not regard the outcome as a negligent one.
Common Examples of Medical Negligence[3]:
Medical negligence typically arises where there is a clear deviation from accepted medical standards, such as:
- Incorrect, missed, or delayed diagnosis
- Surgical errors
- Inadequate monitoring after procedures
- Failure to provide timely or appropriate treatment
- Prescription/Dispensing errors (including incorrect dosages)
- Unreasonable delay in expedition of labour or delivery where fetal distress is present
The Standard of Care
The National Core Standards for Health Establishments in South Africa (2011) set out the benchmarks for how healthcare should be delivered and assessed. These standards cover key areas such as access to care, the quality of nursing and clinical services, integrated healthcare delivery, and maintaining a clean, safe, and secure environment for patients[4].
Over time, the evaluation of healthcare standards has led to more consistent and standardised practices across hospitals, improved tracking of patient outcomes, and the development of case reporting systems. This has strengthened quality improvement processes and aligned them with patient safety and care standards. In addition, section 30(2) of the National Health Act 61 of 2003 requires that healthcare services be provided in line with constitutional principles, while also ensuring quality, effectiveness, and efficiency[5].
Together, these frameworks help establish a clear standard of care against which the conduct of medical professionals can be measured. This standard plays an important role in determining whether a healthcare provider’s actions fall below acceptable levels and may therefore amount to medical negligence[6].
Private vs Public Healthcare
Negligence can arise in both private and public healthcare systems.
Private Healthcare is funded by its patients or medical schemes, whereas public healthcare is primarily funded by the State. The public sector serves approximately 84% of the population and is largely free[7] or subsidized, however, it faces severe systemic pressures such as constrained budgets, workforce shortages, and logistical and resource limitations. This often leads to limited availability of services, resources, longer waiting times, and frequent medicine stockouts[8].
Consequences of Medical Negligence:
Medical Negligence may result in punitive (including, criminal) sanctions as well as civil damages.
Punitive sanctions that result from reckless or egregious misconduct[9] are aimed at deterring similar behaviour in the future. Examples of punitive sanctions are criminal charges (for culpable homicide or murder), monetary fines, as well as confiscation of the practitioner’s medical licence by the Health Professions Council of South Africa[10].
Medical Negligence may, in addition to punitive sanctions, also result in a civil claim for damages[11].
When can you claim?
To succeed in a civil claim for medical negligence, which results in a monetary award being awarded to the injured party (or their close relatives / dependents), there are five key elements that must be proven: Conduct (an act or omission), wrongfulness, fault, causation, and harm [12].
This means there must be a wrongful act, whether intentional or negligent[13] that directly causes harm [14]
If these five elements are proven, on a balance of probability, your claim will be successful.
What Can be Claimed in a Civil Claim?
A successful claim may include compensation for:
- Past and future loss of earnings or reduction in earning capacity
- Past and future hospital, medical or related expenses
- Loss of support by dependents (where applicable)
- General damages, including pain, suffering, loss of amenities and enjoyment of life.
An example of these types of damages being awarded is illustrated in T.L. obo K.R.L. v MEC for Health, North West Province, where a minor child was born with cerebral palsy as a result of negligent medical care. The court awarded damages in excess of R12 million, reflecting the significant financial and personal impact of the injury.
Prescription: How long do you have to institute a claim?
In a legal context, prescription refers to the time limit within which a legal claim must be instituted. If the claim is not brought within this period, the right to enforce it falls away, regardless of the merits of the claim.
Generally, a claimant has three years from the date on which they become aware, or reasonably ought to have become aware of the claim. For minors, this period typically begins only upon reaching the age of 18.
Given the complexity and final effect of prescription, early legal advice is essential.
Protecting Your Rights as a Patient
Medical negligence claims are not only aimed at obtaining compensation, they also help promote accountability and improve healthcare standards. By speaking up, patients can help prevent similar harm to others.
If you believe you or a loved one has been harmed by negligent medical treatment, it is important to seek legal advice as soon as possible.
What Should You Do If You Suspect Negligence?
If you suspect negligent treatment:
- Obtain your hospital and medical records
- Keep a detailed record of symptoms and treatment
- Seek legal advice as soon as possible
Early action can be critical in preserving and strengthening a claim.
Conclusion
Not every medical failure or adverse reaction amounts to medical negligence. However, where a healthcare provider’s conduct falls below the accepted standard of care and causes harm, the law provides a remedy, and patients are entitled to seek compensation. Upholding these standards is not merely procedural, but essential in ensuring accountability, safeguarding patient rights, and maintaining trust in the healthcare system.
If you suspect that you may have a claim, prompt action is critical. Reach out to our team of experts for assistance or click here to fill in your details.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.
[1] David McQuoid-Mason,”University of KwaZulu-Natal “,”What constitutes medical negligence? “,”SA Heart”
[2]Sohn D “Negligence, genuine error, and litigation” (https://pmc.ncbi.nlm.nih.gov/articles/PMC3576054/)
[3] Bioethics, Human Rights and Health Law: Principles and Practice 2nd ed 128.
[4] S Whittaker and others “Quality standards for healthcare establishments in South Africa” South African Health Review Volume 2011, Issue 1
[5] S Whittaker and others “Quality standards for healthcare establishments in South Africa” South African Health Review Volume 2011, Issue 1
[6] S Whittaker and others “Quality standards for healthcare establishments in South Africa” South African Health Review Volume 2011, Issue 1
[7] World Health Organization (2021). South Africa Health System Review.
[8] Stop Stockouts Project (2021). Annual Report on Medicine Stockouts in Public Facilities.
[9] Law.com Legal Dictionary (https://dictionary.law.com/default.aspx?selected=692)
[10] Health Professions Act 56 of 1974, Regulations Relating to Fine Which May be Imposed by a Committee of Enquiry Against Practitioners Found Guilty of Improper or Disgraceful Conduct Under the Health Professions Act, 1974
[11] Compare Collins v Administrator, Cape 1995 (4) SA 73 (C).
[12] Neethling J and Potgieter JM, op cit, at 4
[13] Kruger v Coetzee 1966 2 SA 428 (A) at 430
[14] Lee v Minister of Correctional Services 2013 2 SA 144 (CC), at par [38]
