You want to make a medical malpractice claim, but you’re not sure if you can prove that medical negligence or medical malpractice has been the cause of your injury, according to South African law. Here are the basic elements of medical negligence that you need to know.
NO MEDICAL HARM – NO MEDICAL NEGLIGENCE
Doctors must make calls every day. Sometimes those calls are not what others in the medical profession would consider standard practice. If, as a patient, you didn’t suffer from a medical practitioner’s actions or lack of actions, then there is no medical negligence. A doctor could incorrectly diagnose someone, but if it didn’t result in any injury or medical side effects, then there are no grounds for medical negligence.
ACTIONS OR OMISSION OF ACTIONS
To claim for medical malpractice, the injury suffered must be the direct result of the actions or omission of actions of the medical professional. This includes things such as a misdiagnosis, wrong procedure followed, poor timing or anything that causes the patient to suffer in any way, be it physically or medically. South African medical law stipulates that the injury suffered must be due to the direct result of the medical practitioner’s actions or lack thereof. If, however, the practitioner followed the correct procedures and still the patient suffers with unfavorable consequences, then medical negligence cannot be claimed.
REASONABLE STANDARD OF CARE NOT FOLLOWED
To claim medical negligence, one needs to prove that the treatment received was not considered as the reasonable standard of care. Medical experts, therefore, need to prove that an action or lack of an action was not considered to be a reasonable standard of care by a medical practitioner in a specific case, for a medical negligence claim to be granted. It is very difficult to prove because the treatment received must be measured against what is expected as reasonable standard of care, which is why a specialist is called to assist and not a general practitioner.
NOT A THIRD PARTY
The doctor has to be directly responsible for the medical care of the patient, which means that there has to be a doctor-patient relationship to make a claim. A doctor cannot he held liable for harm suffered if he or she wasn’t directly responsible for the medical care of the patient.
So to sum it up; according to South African law, in order for a medical negligence claim to be made, the medical practitioner needed to be responsible for the patient’s direct care. Then it needs to be proved, with the assistance of a medical specialist that the course of action taken, or not taken, was not in accordance with the generally accepted medical procedures. This decision potentially could have been the cause of the patient's injury or resultant medical side effects.
Contact PBK Attorneys for more information on medical negligence law in South Africa or to find out if you may have a claim.