Medical Negligence Act
When is it Medical Negligence?
If you believe that you have been the victim of medical negligence in South Africa, your first step should be to speak to an attorney specialising in medical law. The attorney knows each act that applies to the medical profession in South Africa and can help you identify, also in terms of the ethical conduct of the institution or healthcare worker, whether the actions of the said institution or practitioner were wrong or against the law.
Acts that are considered when looking at whether medical negligence or malpractice has been the cause of damage or injury depend on the particular action or lack thereof by the institution or practitioner. Relevant acts include the National Health Act No. 61 of 2003, Mental Health Care Act No. 17 of 2002, Medicines and Related Substances Act No. 101 of 1965, the Protection of Information Act, No. 84 of 1992, and now also the Consumer Protection Act.
Healthcare workers have to make decisions regarding the wellbeing of patients on a daily basis. Sometimes they make mistakes. Only if those mistakes are the result of negligence can such be considered medical malpractice, provided medical harm has been suffered. In addition, the healthcare worker must have had a medical practitioner and patient relationship with you. As such, the professional must have had a duty of care at the time of the incident.
If the healthcare worker provided a reasonable standard of care, followed the correct procedure in diagnosing or treating you and you did not suffer medical harm, you cannot claim that it was medical negligence or malpractice. Reasonable standard of care is perhaps the most difficult part to prove in a medical negligence claim. For such, medical experts are called in to prove that the care provided was not up to par with what can be considered reasonable standard of care. The treatment you received must be compared to what the medical experts consider reasonable standard of care.
If a doctor, for instance, is not qualified to provide a specific treatment and fails to call in a specialist or to refer the patient to a specialist, and the patient suffers medical harm as the result of the action, then it is medical negligence, provided the other elements of medical negligence are also present.
The doctor-patient relationship element seems straightforward, but once again, according to the law in South Africa, you can only take legal steps for medical negligence against the practitioner or institution directly responsible for your care as a patient. One also has to consider whether the practitioner’s actions or lack thereof caused your injuries and the damage suffered. If you, for instance, did not follow the exact procedure prescribed in caring for a wound after surgery while getting better at home, you cannot claim medical negligence for complications that arose from wound infection or scarring.
It is best to immediately approach a medical law attorney to help you determine the merits of your particular case and to assist you in taking legal steps against a practitioner for damages suffered as the result of medical negligence.
For more information regarding the act of medical negligence, contact our team at Adele van der Walt Incorporated.
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.