Medical Negligence


Medical Malpractice

In a constant evolving world, technology has advanced medical procedures and treatments which have contributed positively to our medical facilities available to distressed patients in South Africa. However, with evolution there is always an increase of risks and more specifically in the rendering of medical services. Whilst, patients were always afforded the rights and protection against medical negligence which were afforded by the Constitution, the Bill of Rights, the National Health act and associated legislation, litigation was not as prevalent as it is today. It is important for patients to be aware of their rights and responsibilities and to seek legal clarification on their position in respect of past incidents or experiences.

The Constitution of the Republic of South Africa entrenches one’s rights which a medical practitioner has the responsibility to uphold and respect. It is pivotal that a patient is fully aware of their rights and similarly their responsibilities when consulting with a medical practitioner. These rights and responsibilities are explicitly set out in the Patient’s Charter and is subject to the provisions of any law operating within the Republic of South Africa and to the financial means of the country.

Patient’s Rights

A healthy and safe environment

Everyone has the right to a healthy and safe environment that will ensure their physical and mental health or well-being, including adequate water supply, sanitation and waste disposal as well as protection from all forms of environmental danger, such as pollution, ecological degradation or infection.

Participation in decision-making

Every citizen has the right to participate in the development of health policies and everyone has the right to participate in decision-making on matters affecting one’s health.

Access to healthcare services

Everyone has the right of access to healthcare services that include:

  • Receiving timely emergency care at any health care facility that is open regardless of one’s ability to pay;
  • Treatment and rehabilitation that must be made known to the patient to enable the patient to understand such treatment or rehabilitation and consequences thereof;
  • Provision for special needs in the case of newborn infants, children, pregnant women, the aged, disabled persons, patients in pain, person living with HIV/AIDS;
  • Counselling without discrimination, coercion or violence on matters such as reproductive health, cancer or HIV/AIDS;
  • Palliative care that is affordable and effective in cases of incurable or terminal illness;
  • A positive disposition displayed by health care providers that demonstrate courtesy, human dignity, patience, empathy and tolerance and;
  • Health information that includes the availability of health services and how best to use such services and such information shall be in the language understood by the patient.
Knowledge of one’s own health insurance/medical aid scheme

A member of a health insurance or medical aid scheme is entitled to information about that insurance or medical aid scheme and to challenge, where necessary, the decisions of such health insurance or medical aid scheme relating to the member.

Choice of health services

Everyone has the right to choose a particular health care provider for services or a particular health facility for treatment that such choice shall not be contrary to the ethical standards applicable to such health care providers or facilities, and the choice of facilities in line with prescribed service delivery guidelines.

Be treated by a named healthcare provider

Everyone has the right to know the person that is providing health care and therefore must be attended to by clearly identified health providers.

Confidentiality and privacy

Information concerning one’s health, including information concerned treatment may only be disclosed with informed consent, except when required in terms of any law or an order of court.

Informed consent

Everyone has the right to be given full and accurate information about the nature of one’s illnesses, diagnostic procedures, the proposed treatment and the costs involved, for one to make a decision that affects anyone of these elements.

Refusal of treatment

A person may refuse treatment and such refusals shall be verbal or in writing provided that such refusal does not endanger the health of others.

Be referred for a second opinion

Everyone has the right to be referred for a second opinion on request to a health provider of one’s choice.

Continuity of care

No one shall be abandoned by a health care professional worker or a health facility which initially took responsibility for one’s health.

Complain about health services

Everyone has the right to complain about health care services and to have such complaints investigated and to receive a full response on such investigation.

A Patient’s Responsibilities

To take care of his or her health;

  • To care for and protect the environment;
  • To respect the rights of other patients and health providers;
  • To utilise the healthcare system properly and not abuse it;
  • To know his or her local health service and what they offer;
  • To provide healthcare providers with the relevant and accurate information for diagnostic, treatment, rehabilitation or counselling purposes;
  • To advise the healthcare providers of his or her wishes with regard to his or her death;
  • To comply with the prescribed treatment or rehabilitation procedures;
  • To enquire about the related costs of the treatment and/or rehabilitation and arrange for payment;
  • To take care of health records in his or her possession.

Medical negligence is considered to be intentional or negligent acts, including breach of confidentiality and fiduciary doctor-patient relationships.

The Legal Consequences of Medical Negligent Actions:

  1. Disciplinary action by the Health Professions Council of South Africa by means of a complaint by a patient to be investigated;
  2. Criminal prosecution in respect of gross misconduct causing intentional harm or manslaughter;
  3. Civil action in respect of a claim for damages for negligent or intentional wrongs

Herring J[1] states that there are three components of proof for a claim in respect of medical negligence, I set out the components as follows:

  1. The professional being sued owed the claimant a duty of care, which is a reasonable standard of care required by the law.
  2. The professional breached the duty of care, where the required action should be that acted in accordance with a practice accepted as proper and reasonable.
  3. The breach of duty of care caused the claimant loss, where just proving negligence is insufficient to confer blame. The patient needs to have suffered loss or injury as a result.

Medical Negligence claims have become an ever-increasing occurrence in our Courts like most professional engagements, it is contractually based to the extent that the medical practitioner contracts with his patient to render professional services with the necessary skill, diligence and expertise as would be expected of a prudent and reasonable medical practitioner.

Unfortunately, we do not live in a perfect world and even the best medical practitioner may be put to the sword in a law suit. The claim is based on breach of contract coupled with a delictual claim for damages directly or consequentially suffered by the patient.  Our opinions are generally based on years of experience coupled with comparative studies of literature, precedents and Medico Legal Reports.

[1] Herring J. Medical Law and Ethics. New York: Oxford University Press, 2006.