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Misdiagnosis and Medical Negligence in South Africa

1. Introduction to Medical Negligence in South Africa

The South African Courts entertain claims for medical negligence in order to protect the public. It is obvious that medical practitioners cannot cure all illness or prevent health issues. However, they are legally expected to bring a degree of reasonable skill and care. For a claim to be made the injuries suffered must be a direct result of the medical practitioner’s actions or the lack thereof, in that the correct medical procedures were not followed and the professional conduct was not in line with the reasonable standard as stipulated by South African Medical Law.

Misconduct can be determined by proving the following elements:

1.1 That healthcare professional or hospital has a legal duty of care in respect of the patient;
1.2 The legal obligation of the healthcare professional or hospital to provide a certain level of care was breached;
1.3 The breach of the legal obligation to provide the standard of medical care resulted in direct injury; and
1.4 The injuries resulted in financial and/or emotional loss, hence a claim for damages.

The South African law recognizes the idea of informed consent. This means that the hospital, healthcare professionals and hospital personnel cannot get away with medical negligence simply by making you sign a consent form, without knowing all the risks thereto. The indemnity also does not protect the hospital and/or medical practitioner from a civil claim as a result of gross negligence.

2. How to prove Medical Negligence, injury and damage

In the event that you have suffered damages as a direct result of the action or failure of a healthcare professional to act accordingly to reasonable medical procedures, it is important to prove that a doctor-patient relationship existed. This however means that the healthcare professional must have directly provided you with a diagnosis or treatment based on the existence of this said relationship. It is important to note that legal action cannot be instituted against a doctor that provided another doctor with an opinion on treatment, as the doctor-patient relationship between yourself and the advisor does not exist.

To substantiate negligence you will have to prove that the healthcare professional failed to follow the correct medical procedures and that he or she did not provide the treatment that is in accordance to the reasonable standard for medical care. It is essential to prove that other healthcare professionals (in similar cases) would have acted with standard medical care and skill. This will be proven by way of expert witnesses and their testimonies on the topic.

The injury and damage suffered must be directly associated to the negligence of the healthcare professional with whom a doctor-patient relationship existed. The injury cannot be the consequence of an underlying health or medical ailment. Additionally, it cannot be due to your own action, failure to act or non-compliance with a medical practitioner’s instructions.

3. Misdiagnosis of a patient

The misdiagnosis of a patient can have serious consequences as it can cause permanent harm to the patients. Misdiagnosis is not essentially malpractice as various factors must be taken into account when establishing whether it is undeniably the result of negligence on the part of the caregiver. These factors include inter alia the following:

3.1 whether the patient’s full medical history has been disclosed;
3.2 whether the use of medication that have not been disclosed affected the symptoms;
3.3 whether the doctor followed the correct procedures when diagnosing the patient; and
3.4 whether the patient suffered significant injury and/or damages.[1]

4. Patient’s rights and ways to avoid falling victim to malpractice and medical negligence

The medical law in South Africa protects inter alia the following rights of a patient:

  • A healthy and safe environment;
  • Participating in decision-making;
  • Right to dignity;
  • To be informed of the risks of treatment and the availability of alternative treatment;
  • The right to doctor-patient confidentiality;
  • That the reasonable standard of care will be given to patients;
  • Continuity of care;
  • To seek a second opinion.[2]

In order to minimize the risk of becoming a victim you should ask the medical practitioner to explain the medical terminology in order to understand same. Should you be unsure about the diagnosis, seek a second opinion. It is important to confirm whether the prescribed dosages are correct and that it is administered correctly. Due to the increase of infections of patients while hospitalised, it is essential that you insist that the correct hygiene- and infection protocols are followed.[3]

If you suspect that you have fallen victim to malpractice and medical negligence, seek legal counsel in order for your rights to be protected and seen as a priority.

[1]    http://www.medicallaw.co.za/articles/patient-misdiagnosis-082017.html
[2]   https://www.medicalprotection.org/southafrica/advice-booklets/common-problems-managing-the-risks-in-general-practice-in-south-africa/laws-ethics-and-professional-regulation
[3]   http://www.medicallaw.co.za/articles/medical-law-firm-072017.html

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