Medical negligence claims: what does the law say

Medical negligence can take place in so many ways, and as a result it sometimes appears impossible for the ordinary man on the street to know when and for what he may claim. In this article we highlight a few examples of possible negligence claims and the different forms of damages that can be claimed in each instance.

Example 1

Mrs Y – an elderly woman admitted to hospital for the treatment of an airway infection, is recuperating after a theater procedure. A hospital staff member had phoned Mrs Y’s husband and requested that he give telephonic permission for his wife’s heart moisture to be removed. He did not doubt in the medical experts’ advice and gave his permission. The procedure was performed under anesthesia. Later that same afternoon Mrs Y’s family members were informed that a mistake was made. She should never have undergone the procedure as it was in fact intended for another patient.

After closer investigation it was revealed that a misunderstanding between two specialists had led to the incident. Mrs Y had lain with another elderly woman in the same ward, and both were patients of the same physician. The physician had requested a surgeon to take Mrs Y to theater for a procedure during which excessive heart moisture had to be removed from the heart. However he became confused with the patients’ surnames and the wrong patient’s name was provided to the surgeon over the phone. 

Example 2

Mrs X had just, at the age of 39 years, given birth to her fourth child. Ten months ago Mrs X was at the hospital for a sterilisation. She and her husband already had three children and had decided that because of the financial implications they could not afford anymore children – and had decided on sterilisation. However Mrs X’s gynaecologist had mistakenly tied her round ligaments and not her fallopian tubes, and as a result she was not sterilised and fell pregnant again. She now sues the gynaecologist for the costs of raising the child, with her claim based on the doctor’s negligence.

Example 3

Child Y lies in hospital with his arm in a plaster cast following an operation to repair his broken arm after he fell from a tree three months ago. With his first visit to the hospital he had been wrongly diagnosed. No X-rays of his arm were taken and neither was he admitted to hospital. His arm had only been placed in a cast and he was asked to return three days later. The cast was later removed and X-rays (wrongly) confirmed that his arm was broken. However he was again not operated on and sent home. Two months later Child Y was at the hospital once again where it was established that his elbow was in reality dislocated, and consequently Child Y was only operated on a month later. 

Because Child Y is still underaged, his father is now suing the hospital and the doctor for future loss of earning capability, future medical and hospital expenses and general damage (for Child Y’s pain and suffering, shock, loss of enjoyment of life and malformation) based on the negligence of the doctor and hospital. 

In all three instances the doctors and/or hospital staff were negligent by not having acted as a reasonable doctor, specialist or nurse – and thus according to our law’s reasonable man test, were negligent. In all three instances damage had occurred.

Damage kan be divided into two groups, namely Special Damage and General Damage. Special Damage involves claims for medical and hospital costs, as well as loss of maintenance and income or earning capability. General Damage represents damages for pain and suffering, loss of enjoyment of life, decreased life expectancy and malformation. 

In terms of both General and Special Damages one can claim for damage that has already occurred or that will occur in future. Medical and hospital costs include costs for future procedures, treatment by physiotherapists, occupational therapists, medicine, etc. 

Loss of income of earning capability can be claimed when the person has for some time not been able to earn an income, or if the negligent conduct had resulted in a smaller income in future, or if the person could for example not work until the normal retirement age, or had to get another job due to the negligent conduct.

This type of claim is a specialised claim, and for that an expert in the field of medical negligence must be consulted to determine if there has in fact been negligence – and if so, if any damage had been or will be suffered.

Any claim must be instituted within three years following the negligent conduct. Where the negligent conduct affects the rights of an underaged person, that part of the claim must be instituted within three years after the age of majority (18 years of age) has been reached.

Medical negligence remains a specialised field, and although various remedies are available, it is important that a practitioner specialising in medical negligence claims is contacted in advance for advice regarding the correct handling of a claim.

September 11, 2014

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