South African Medical LawEssential Elements of Medical Negligence in South AfricaFor a medical malpractice claim to be successful, the patient, according to South African medical law, must be able to prove that medical negligence or malpractice has been the cause of the injury and damages suffered. Medical Practitioner’s Actions or Omission of Actions The harm suffered must be the direct the result of the action or lack thereof by the medical professional. The injury suffered must thus be the consequence of the practitioner’s action such as misdiagnosis, incorrect procedure followed, oversight of an essential step in treatment, or the failure to carry out action in a timely manner according to a reasonable standard of care, such as when the medical caregiver fails to administer medicine or treatment, which consequently leads to the suffering of the patient. Action or Omission Thereof Must Be Wrongful Not all post operation complications are the result of medical malpractice or negligence. According to South African medical law, the injury suffered must be the direct result of the medical caregiver’s actions or omission of actions. As such, if the practitioner followed the correct procedure, there is no wrongfulness and the injury suffered is thus not the result of negligence. Treatment Not in Line with Reasonable Standard of Medical Care The patient must be able to prove that the treatment received by the medical caregiver was not according to an appropriate standard for reasonable medical care for the same type of condition. This can be difficult to prove as the treatment received must be measured against what is expected as a reasonable standard of care by a professional with the same level of qualification and training for the particular type of medical situation. For this, medical experts will be called upon to testify regarding what would have been a reasonable standard of care by a medical professional for the particular medical condition. A general practitioner cannot be expected to have the same level of expertise as a specialist and as such, the measurement or comparison must be in line with the medical professional’s role, training, and expertise level. Medical Harm If the patient didn’t suffer any medical harm because of the practitioner’s actions or omission of actions, there is no medical negligence. Doctors see many patients and deal with various conditions in any given period. It is possible for a doctor to at first mistake a condition for another medical condition with similar symptoms. However, if the mistake and subsequent treatment don’t cause medical harm, then there is no negligence. Duty of Care There must be a doctor and patient relationship. If the doctor was not responsible for the medical care of the patient, the patient cannot hold the specific doctor liable for the harm suffered. It is thus not permitted under South African medical law to keep a third party to the treatment accountable. To clarify – the doctor who advised the patient’s medical caregiver regarding an appropriate course of treatment or provided advice regarding the diagnosis of the condition, cannot be held accountable for negligence by the patient unless that doctor was responsible for the medical care of the patient. For more information on medical negligence and the law in South Africa, contact our team at Adele van der Walt Incorporated today. Disclaimer 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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