Medical negligence claims: what does the law say

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By Pieter Skein 

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.

Road accident injuries: Do I have a claim?

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Peter was involved in a car accident where a drunk driver jumped a red light and hit him side-on, totalling his car. Fortunately Peter managed to escape largely unscathed with only whiplash and some minor cuts and bruises. Yet Peter had to pay hospital and doctor costs for the check-up and wound treatment and now he wonders whether he can claim these expenses back from the Road Accident Fund (“RAF”)?

The RAF Act has been amended with the amendments substantially impacting on all claims arising from motor vehicle accidents which occurred after 1 August 2008, and resulting in many victims being unsure of whether they can claim from the RAF or not.

The RAF is obliged to compensate any person for any loss or damage which that person suffered as a result of a bodily injury to himself or from the death or bodily injury to any other person, caused by or arising from the driving of a motor vehicle, if the injury or death was caused by the negligence or other wrongful act of a driver or owner of the motor vehicle (or his employee while in the employment of his employer).

If applicable the following can be claimed from the RAF:

  • Hospital and doctors’ accounts (past and future expenses);
  • Loss of income/income capacity (past and future);
  • Funeral costs;  and
  • Loss of support (by a widow and/or minor children).

The above is classified as special damages (monetary loss).

If the past medical expenses were paid by a medical aid fund, the RAF will require that the medical aid fund (and not the injured person) be reimbursed. The RAF also does not pay future medical and hospital accounts/expenses but provides an undertaking that they will reimburse the injured person once the expenses have been incurred and paid for.

General damages (non-monetary loss) for pain, suffering, loss of amenities of life, disfigurement, etc. can only be claimed if the injury has resulted in a 30% or more Whole Person Impairment (WPI). However, if the injuries have resulted in less than 30% WPI, but has the consequences of:

  • Serious long term impairment or loss of a body function;
  • Permanent serious disfigurement;
  • Serious long term mental illness or impairment or severe behavioral disturbance or disorder;  or
  • Loss of a fetus,

the injured person can still claim general damages, provided the above can be proven.

Any assessment of impairment must be done by an accredited medical practitioner and the prescribed RAF 4 Serious Injury Assessment Report must be completed and submitted to the RAF.

The most significant change resulting from the amendments to the RAF Act, is that the RAF is no longer liable for the costs associated with a claim ie. the attorney’s fees and the costs of obtaining the doctors’ reports and the RAF 4 Assessment Report.

In cases where funeral expenses were not significant and where a medical aid fund has paid the medical expenses and there is no claim for general damages, it is unlikely that a claim against the RAF will be feasible. In this case of Peter, it therefore appears at first glance as if his claim will be extinguished by the costs of lodging a claim.

Importantly though, each and every injury is different and should be assessed individually on its merits by an attorney specializing in RAF claims to establish the merits of the case and whether it would be worthwhile to proceed given the prospects of success.

Pre-requisites for rescission of judgment once again confirmed

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By Pieter Skein | Posted on  27 June 2014

The Supreme Court of Appeal recently (26/06/2014) handed down judgment in an appeal against the dismissal of an application for rescission of judgment (Vhembe District Municipality vs Stewarts & Lloyds Trading (Booysens) (Pty) Limited & 1 Other: Case no 397/13) which was granted in terms of Rule 31(2) of the Uniform Rules of Court.

The Appellant failed to give a reasonable explanation for their default and to show existence of a bona fide defence or to disclose their defence with sufficient particularity.

As it was put in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) para 11, the courts generally expect an applicant to show good cause: (a) by giving a reasonable explanation for the default; (b) by showing that the application is made bona fide; and (c) by showing a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success.

THE FACTS:

The Court a quo granted judgment in favour of the first respondent after summons was served by the sheriff (second respondent) on Mrs Ramukhotheli (hereinafter referred to as “Mrs R”), being “a person in attendance at the municipality at the municipal managers office”, therefore complying with the Uniform Rules of Court and Section 115(3) of the Local Government: Municipal Systems Act, 32 of 2000.

The municipal manager on behalf of the appellant denied that Mrs R was known to him and that “a person by that name does not appear on the list of persons employed by the appellant”.  The appellant admitted that the summons reflected the “appellant’s official receipt date stamp” and that it was served at the proper address.

The first respondent challenged the appellant to disclose its list of employees to support its contention that Mrs R was not of its employees.  This allegation did not ellicit a response from the appellant.  The appellant’s lack of candour was exacerbated by its failure to disclose the identity of the person who was authorised to accept service on behalf of the appellant or who was entrusted with the “official receipt dated stamp”.

BONA FIDE DEFENCE:

The first defendant sued on a written agreement of cession in terms whereof a close corporation ceded its right, title and interest in and to monies due to it by the appellant.

“[18] In its founding affidavit the appellant set out its defence as follows:
10.1 I aver that the Applicant does not owe the 1st Respondent an amount of R698 885-00 as indicated in the Writ of Execution and therefore intend to defend the action if any against the Applicant;

10.2 I aver further that the only amount brought to the attention of the Applicant for payment was an invoice of R215,259.04 which was duly paid under certificate no. 14 prepared on the 28th May 2009;

10.3 The Applicant is not formally informed of any other deliveries of materials to the site by the 1st Respondent which the Applicant is liable to pay as required under conditions of direct payment item 4 and 6 on the cession form.”

The Court a quo found the response to the allegation in the particulars of claim lacked candour and amounted to nothing more than a bare denial.  The first respondent placed the appellant’s allegation in dispute.  In reply this was met by a response which amounted to a mere repetition of what was stated in the founding affidavit coupled with an averment that in rescission proceedings it is not necessary to fully deal with the merits or to proof the defence raised and that “it is sufficient to set out facts, which if established at the trial, would constitute a good defence”.  What had been set out by the municipal manager were not facts.  They were bold averments.  Nowhere in his affidavit does he state that he has personal knowledge of the contract in question or details of the reticulation project foundational to the contract.  Nor, in the absence of personal knowledge, does he divulge source of his knowledge.  No confirmatory affidavit is filed by him in support of those bold averments.  The unsubstantiated averments in his affidavit were thus wholly inadequate to support the appellant’s assertion that it had a bona fide defence to the claim.

COSTS OF THE APPEAL:

The first respondent requested costs on an attorney and client scale however van Zyl, D AJA was not persuaded that such shortcomings, as there may have been in the appellant’s conduct, are such as to warrant it being mulcted with a punitive costs order.