The Procedures for Taking Legal Steps against a Hospital or Doctor for Malpractice
To institute an action for hospital malpractice against a hospital or doctor in South Africa, you firstly need to consult with a medical law attorney who will be able to help you determine the extent and validity of your claim for hospital malpractice or medical negligence. The attorney will review the facts presented and gather relevant information. If the decision is to proceed with a claim for medical or hospital malpractice, the attorney will request the patient records from the institution or practice. In order to do so, the attorney will need a signed Letter of Attorney from you.
The doctor or institution must comply with the request for records and may not modify the records in any way. The attorney will request copies of the records. A Summons is issued and served. The Summons provides the full details of your claim against the hospital or doctor and the timeframe in which the defending party must respond.
Your attorney will follow the litigation procedure. The defending party can either decide to settle the matter out of court (after a substantial investigation) or proceed to defend against the allegations and claim through a trial. Should the defendant decide on out-of-court settlement then the attorney will negotiate a fair and reasonable amount on your behalf. If you are satisfied with the conditions and payment proposed then the matter is settled. However, should the defendant decide on defending against the claim through trial, it can be a lengthy and costly process. The attorney will provide you with advice as to help you make an informed decision regarding further steps and costs.
For the purpose of presenting the claim to court, factual evidence will be gathered before summons is issued. This includes the patient’s records, witness statements, expert opinions and, where relevant, interviews. Should the hospital or doctor’s insurance against which you institute a claim of malpractice decide on defending in court, they will issue a Notice of Intention to Defend. They thus respond with the notice. Before court trial the defendant’s lawyers and your attorney will exchange legal documents and it is still possible at this stage to reach an out-of-court settlement.
The court trial entails presentation of evidence to court, calling and cross examining of witnesses factual and expert witnesses and awaiting the decision from the judge. The defendant or the plaintiff can appeal against the court’s decision. This is very costly.
Note that the information in this article is for information purposes only and should not be seen as an attempt to provide legal advice. We strongly recommend that you contact us at Adele van der Walt Incorporated for professional legal advice.