Demystifying South African Prescription Laws in Medical Malpractice Cases

  

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:

1. 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.
2. 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).
3. 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.
4. 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.

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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

How the Shoprite Checkers Case Clarifies the Impact of Curators on Prescription Act for Mentally Incapacitated Claimants

Understanding Delict: Categories of Damages

Introduction:

Delict, often termed a "civil wrong," governs situations where one seeks compensation for harm. Three primary harm categories exist: patrimonial (financial losses), non-patrimonial (non-financial harm), and pure economic (unrelated to physical harm). Delictual remedies/actions include the Aquilian Action, addressing patrimonial loss; Actio Iniuriarum, handling personality rights violations; and the Action for Pain and Suffering, dealing with physical and emotional injury claims. Detailed insights into these facets follow, offering a comprehensive understanding of the delictual legal framework.

1. Patrimonial/Special Damages: This category includes financial losses such as medical expenses, loss of income, and repair costs related to physical damage to a person or property.

2. Non-Patrimonial/General Damages: Non-financial harm, such as pain and suffering, disfigurement, loss of amenities, and injury to one's personality.

3. Pure Economic Harm: This type of damage is not connected to physical injury or property damage but encompasses financial losses resulting from unreasonable conduct.

Delictual Remedies/Actions:

Aquilian Action:

• Elements of Liability: To initiate an Aquilian action, the plaintiff must demonstrate harm or loss, which must be patrimonial (monetary). The wrongful conduct must be unreasonable and lack lawful justification.
• Defences: Liability hinges on fault and blameworthiness, which can be intentional or negligent.
• Damages: The primary aim is to compensate the injured party, restoring their patrimony to its pre-damage state. Courts base awards on available evidence and may exercise judgment when exact damages are unclear. The plaintiff's contributory negligence can reduce the damages awarded.

Actio Iniuriarum:

• Essential Elements of Liability: General delict elements apply, with specific rules developed. Causation is presumed. Key elements include harm in the form of personality rights violation (e.g., bodily harm, indecent acts, wrongful arrest), dignitas (dignity and self-respect), and fama (defamation).
• Defences: Liability may be influenced by factors such as the discharge of a duty, exercise of a right, or legitimate interest.

Action for Pain and Suffering:

• Nature of Action: This action deals with claims related to pain, suffering, and psychiatric injury, drawing from both Aquilian action and the use of reparative fines.
• Elements of Liability:
• Harm or Loss: Includes personal bodily injury such as actual pain, loss of life's amenities, and reduced life expectancy.
• Conduct: Can manifest as a positive act, omission, or statement.
• Wrongfulness: Focuses on unreasonable conduct.
• Fault: Blameworthiness, either intentional or negligent.
• Causation: Involves factual and legal causation.

Conclusion: Delict encompasses various remedies/actions for addressing damages, from Aquilian actions dealing with patrimonial loss to Actio Iniuriarum addressing personality rights violations and actions for pain and suffering. Understanding the essential elements of liability and the role of defences and damages in each action is crucial within the delictual framework.

 

Understanding the Withholding of Pension Benefits

Introduction to the Pension Funds Act:

The Pension Funds Act plays a crucial role in safeguarding pension benefits, aiming to prevent individuals from relying solely on state assistance once their pension funds are depleted. However, there are instances where deductions can be made from pension benefits under specific circumstances. One such scenario involves withholding or deducting a portion of an employee's pension benefit as compensation for damages resulting from their dishonest conduct, theft, fraud, or misconduct, at the request of the employer.

Requirements for Withholding a Pension Benefit in Cases of Employee Misconduct:

To withhold or deduct an amount from a member's pension benefit in favour of an employer, certain conditions must be met:

·         Pension Benefit Must Be Payable: There must be a pension benefit payable by a pension or provident fund. 

·         Amount Owed by the Member: The member must owe an amount to their employer when they retire or cease to be a fund member. 

·         Dishonest Conduct Leading to Damages: The damages suffered by the employer must result from theft, dishonesty, fraud, or misconduct by the member, excluding negligent conduct. 

·         Admission of Liability or Court Judgment: The member must either admit liability in writing to the employer, or a civil judgment must be obtained against them in court. A criminal conviction alone isn't enough; it must be accompanied by a compensation order issued as part of the sentence. 

·         Specific Amount of Compensation: The written admission or court judgment must specify the amount of compensation or damages owed to the employer. 

·         Voluntary Admission: Any admission of liability must be made voluntarily, without coercion. 

Withholding Pending Litigation:

Sometimes, an employer suspects dishonest conduct by an employee upon termination but hasn't yet obtained a civil judgment. In such cases, the law allows for the possibility of withholding pension benefits until the litigation against the member concludes. This recognizes the delays in the justice system that prevent employers from securing judgments before paying out pension benefits.

Withholding Pending Divorce:

The Pension Funds Act permits pension funds to withhold payment of a member's benefit in certain situations, but this doesn't extend to pending divorce orders. Unlike cases involving theft, fraud, or employee misconduct, where funds can be withheld pending legal proceedings, divorce orders don't fall under this category. If a member has left their job, the fund can't delay payment while awaiting a divorce order. This distinction reflects the specific provisions of the Pension Funds Act. 

Withholding Pending Final Maintenance Order:

Maintenance orders in South Africa can affect a member's pension benefit under specific legal provisions. Section 26(4) of the Maintenance Act, in conjunction with Section 37D(1)(d)(iA) of the Pension Funds Act, allows for a deduction from a member's pension interest to benefit their non-member spouse or child when the fund receives a binding final maintenance order. Initially, it was unclear whether these orders could also apply to future maintenance. However, the Durban court's decision in Mngadi v Beacon Sweets and Chocolates Provident Fund clarified that South African courts can enforce orders related to future child maintenance. To succeed, the claimant must show the defaulting member's history of neglecting maintenance responsibilities.

In summary, maintenance creditors in South Africa have the option to request that a pension fund withhold a member's benefit to secure potential future maintenance orders granted by the court. The legal framework and precedent cases provide guidance on how such deductions and withholdings can be enforced to ensure the financial well-being of spouses and children entitled to maintenance support.

Bitventure Consulting v Carina Smit: Making Sense of Notice Periods

 

The Background:

Bitventure Consulting, a company that provides consulting services to government departments and public entities, hired Carina Smit as a senior consultant. When Carina joined in May, her employment contract clearly stated that she needed to give a 60-day notice if she ever wanted to resign from her position. This notice period was longer than what the law required. However, in June, Carina decided to resign abruptly and gave her employer only one week's notice. She cited a promising job opportunity elsewhere as her reason for leaving. Bitventure Consulting was unhappy with this short notice and insisted that Carina should stick around for the full 60 days. They argued that her early departure would disrupt their ongoing projects and potentially lead to financial losses.

The Court's Decision:

The Labour Court was tasked with deciding the outcome of this dispute. They ruled against Bitventure Consulting's request to force Carina to serve her entire 60-day notice period. The court explained that, in general, they are not in favour of making employees stay for the full notice period mentioned in their contracts. Instead, if an employee leaves early, they may have to pay for any financial loss they cause by doing so. In this case, the court found that it wouldn't be fair to make Carina stay because her relationship with Bitventure Consulting was already strained, and she had accepted a new job in a different part of the country.

What Does This Mean for You:

If you ever find yourself in a situation similar to Carina's, it's essential to understand that the court is typically on the side of employees. They are unlikely to force you to stay at your job for the full notice period in your contract. Instead, you might have to compensate your employer for any issues caused by leaving early. However, your employer must provide evidence that they genuinely suffered because you left before your notice period ended.

For employers, this case serves as a reminder of the importance of clear communication with employees. Effective HR management can help avoid disputes and disruptions when employees decide to leave their jobs. It's crucial to maintain a good working relationship to ensure smoother transitions in the workplace.