Explore the intricacies of the Act and its impact on medical malpractice claims. Learn how prescription laws affect minors, individuals with severe disabilities, and the pursuit of justice.
Summary:
What is medical malpractice?
Medical malpractice pertains to
cases where healthcare professionals, such as doctors or hospitals, deviate
from the accepted standard of care, leading to harm to a patient. These cases
are governed by delict (tort) law, enabling individuals to seek compensation
for harm resulting from negligence. To establish a medical malpractice claim in
South Africa, four key elements must typically be proven:
- Duty of Care: A duty of care must exist between the
healthcare professional and the patient, rooted in the doctor-patient
relationship, obligating the provider to deliver treatment meeting
accepted standards.
- Breach of Duty: The healthcare professional
breaches their duty by failing to provide treatment meeting these
standards. Breach can take the form of either doing something wrong
(commission) or failing to do something necessary (omission).
- Causation: There must be a direct link between the
breach of duty and the patient's harm or injury, demonstrating that the
healthcare professional's actions or omissions caused the harm.
- Damages: The patient must have suffered actual
damages, which can encompass physical injuries, emotional distress,
medical expenses, and loss of income as a result of the healthcare
professional's negligence.
South Africa's Prescription
Act 68 of 1969, known as "the Act," provides that medical
malpractice claims, seeking damages for injuries caused by medical errors, generally
prescribe after three years from the date of the incident.
However, for minors (those under
18 at the incident), the clock starts at 18, allowing them to claim until they
turn 21. Similarly, mentally incapacitated individuals can start the three-year
period once (and if) they regain mental capacity.
Prescription and Protected
Categories of Claimants
Minors: The law offers
special protection to minors, individuals under 18 years of age. The
prescription does not begin running against them until they reach adulthood. In
practical terms, minors have until their 19th birthday to initiate a claim.
However, if the medical error occurred when they were 18 years old, the standard
3-year prescription period applies.
Individuals with Severe
Disabilities: South African law extends unique protection to those with
incurable, severe, and permanent mental or intellectual disabilities.
Critically, their claims are immune to prescription. This means that
individuals with such disabilities can pursue compensation for medical
malpractice regardless of how much time has elapsed since the incident.
The Significance of
Prescription Laws
Prescription laws serve to strike
a balance between ensuring that individuals have sufficient time to seek
justice and providing legal finality. These laws acknowledge the vulnerability
of certain groups and aim to protect their rights by extending prescription
timelines or exempting them from prescription altogether.
Some interesting cases:
Loni v Member of the
Executive Council, Department of Health, Eastern Cape, Bhisho [2018] ZACC 2
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