FAQ about the Legal Aspects of Medical Negligence in South Africa

Medical negligence is fast becoming a serious problem worldwide with some studies suggesting that medical negligence is the third leading cause of death in North American hospitals. With malpractice and negligence also being problematic in South Africa, we have answered a few of the frequently asked questions to help you gain insight on what the law in SA says about medical negligence.

Can one only take legal action against a medical professional or can a hospital be held responsible for medical negligence in SA?

The law provides for legal action against a medical professional, the state. If the staff members of the hospital were responsible for the malpractice, they can be held responsible. If it is a state or public hospital, the State will be responsible.

Knowing how important the records are in a medical negligence lawsuit, how can one get the hospital or medical records?

Though you can attempt to request the medical records, you most probably won’t find the institution very helpful. It is best to have an attorney specialising in legal cases of medical negligence in SA to request the records after you have given written consent for such through a Letter of Attorney. The institution must cooperate.

What is the Health Professions Council of South Africa?

The HPCSA is a public protection body established and managed according to the relevant laws in SA. The Council’s main purposes are to promote the general health of the South African public, to set and maintain the necessary standards for medical professional conduct and also to set the standard for professional medical training.

Disciplinary committees are established for the purpose of addressing patient complaints about the conduct of the medical professionals registered with the Council. The patient submits a written complaint to the Council detailing the circumstances, treatment, and relevant facts. The Council then initiates an enquiry to the matter and the hospital or medical professional gets an opportunity to defend themselves against the complaint. If a medical professional or the hospital is found guilty of unethical or unprofessional conduct:

disciplined through a reprimand;
suspension for a period or permanent removal from the register;
a fine of maximum R10 000; and/or
payment of costs to ensure restitution or compulsory period of medical professional service.

Note that one or more of the above disciplinary actions can be taken.

What if a person is unhappy with the Council’s decision?

The aggrieved party can appeal the decision and the HPCSA will appoint another committee to address the appeal. However, a person can also seek legal guidance from an attorney specialising in law on medical negligence in SA to assist in taking the appeal to the High Court. It is essential to note that an appeal notice must be submitted within 30 days from the date of the HPCSA’s decision.

Contact us at Adele van der Walt Medical Law Attorneys for professional assistance in submitting appeals to the High Court or to take direct legal action against a medical professional for malpractice in South Africa.

Disclaimer

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.