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FAQ about Medical Negligence & Malpractice Claims

Understanding your rights as a patient will certainly help to ensure that when you become the victim of medical negligence or malpractice, , that you will be able to recognise how your rights have been affected. Once you know this or if you are still not completely sure, it is time to call on the expert guidance from attorneys who specialises in this field.

What is personal consent and how does it affect you?

You must provide consent, whether written or verbal, before the medical professional can undertake a specific medical treatment. The medical professional must explain all the risks associated with the specific treatment and must inform you about relevant alternatives.

You have the freedom to choose whether or not to proceed with the specific treatment, to seek a second opinion or to consider alternative treatment. The medical professional must explain the advantages and disadvantages of the particular treatment. However, the consent doesn’t have to be formal; it can be implied as well, which means that if you don’t object to a particular treatment, you have given consent. If you don’t give resistance to the treatment, then you also provide your consent.

Also note that should something go wrong during the treatment, for instance, while you are undergoing surgery, which is not specifically a material risk and the medical professional takes every reasonable step to protect you against harm, you cannot hold the medical professional or team responsible provided the material risks were explained to you beforehand. Acknowledged complications do occur.

Note that the medical professional under such circumstances may have to make a decision quickly and any delays in decision-making, because of the medical professional having to gain consent from a family member may cause injury or your death. In such a situation, the medical professional will take the necessary steps without getting additional consent for the new risks involved, but this will have to be an emergency situation. Personal consent is thus a complicated matter and if you feel that you have been a victim of negligence, because the professional not getting your personal consent on the specific treatment, then we recommend that you consult with one of our medical negligence and malpractice attorneys.

What is an expert opinion in a medical negligence & malpractice lawsuit?

The attorney will obtain expert opinion from an independent medical professional who has the experience and qualifications relevant to the particular medical field to assess whether the hospital or professional has been negligent. The expert opinion forms the foundation for the negligence claim. The same expert medical will need to testify in Court where relevant.

Which types of damages can be claimed?

You can claim damages for past and future loss of earnings (if any) and the interference with your ability to earn income, because of the injury sustained directly related to the malpractice. You can also claim past and future medical expenses including doctor visits, special treatments, hospitalisation and medicine. Compensation can be claimed for special care needed as the result of the injury. Finally, you can also claim compensation for disfigurement, loss of amenities and general damages, which is limited in SA Law.


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.

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