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Malpractice in Hospital

How the Legal Process Works Regarding a Medical Malpractice Lawsuit Against a Hospital

It is imperative to seek legal guidance if you have suffered from malpractice in hospital. We take a brief look at some of the aspects involved in the legal process to seek compensation for damages suffered.

Duration of the Legal Process

The length of the process is determined by factors such as the court date, the defendant’s response time, and the time it takes to obtain medical records, expert opinions, and meeting with the defendant’s lawyers. Other factors such as the time it takes to issue the summons and so forth should also be taken into consideration. In addition, the defendant may settle out of court, which helps to reduce the costs of the legal process and also the overall duration of the process. One can expect the process to take up to four or more years from date of initialising the claim against the hospital where the patient has suffered injury as the result of malpractice to the finalisation of the malpractice claim.

The Summons

A summons is served by the plaintiff’s legal team on the defendant. A Sheriff serves the Summons which contains the details of the claim for damages suffered as the result of malpractice. The claim details are attached to the Summons.

The defendant, such as the hospital against which a claim for malpractice has been initiated, responds to the Summons by indicating their intention to defend against the claim. Though it is possible that the defendant will admit to the malpractice and propose a settlement, it is also highly likely that the defendant will deny wrong doing on their part. They will do this in the Plea as response to the Summons. Extensive notices are exchanged with further information between the parties.

The plaintiff’s legal team then applies for a trial date. The plaintiff must be able to prove that the hospital was guilty of malpractice and that all the requirements for it to be malpractice have been met, including that the injury and damages suffered have been a direct result of the malpractice, that is was indeed malpractice, that the hospital was responsible for such, and that there was a duty of care.

Obtaining Medical Records

An important part of the claim is the ability to prove that the patient suffered injury and damages as the result of malpractice in hospital. For such, evidence must be gathered and medical records must thus be obtained. The patient can directly approach the hospital for the medical records, but it is often easier for the legal team to obtain when they have a “Power of Attorney” – thus patient signed consent to obtain the records.

The hospital, where malpractice was suffered, must by law provide access to the records according to the Promotion of Access to Information Act (PAIA) No. 2 of 2000 and specifically Section 32. Accordingly, one has the right to access information that is held by the state and information held by another person if that information is needed for exercising or protecting the person’s rights. As such, the patient has the legal right to access medical records relevant to them, whether the medical records are held by a private medical care provider, the state or a private clinic or hospital.

A medical lawsuit against a hospital for malpractice can be complex and as such, it is recommended to make use of an experienced medical law attorney such as Adele van der Walt should you wish to initiate legal steps against the institution.


Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt before relying on this information to make any legal decisions.

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