Scenario: You are pregnant and are expecting the baby soon. As this is your second child, you and your partner take a decision that you cannot afford to have any more children and you, therefore, decide that you will instruct the doctor that, once the birth is done, he is to sterilise you.
The birth goes well and the doctor confirms that he has sterilised you. On the mistaken belief that you are sterilised, you have unprotected intercourse with your partner and you fall pregnant. What now?
We would say you would have a claim against the doctor for medical malpractice.
For the average person, it is not easy to recognise medical malpractice, and a patient may even consider taking legal action against the doctor without sufficient grounds and proof to do so.
In order for a medical negligence claim to succeed, it must be shown that the hospital, clinic or doctor undertook to look after the patient.
This undertaking is a legal obligation on the hospital, clinic or doctor to provide a reasonable level of care and treatment to the patient and the patient must be able to show that this undertaking had been breached.
This breach of the undertaking to provide care and treatment must result in a direct injury to the patient and the injury must have resulted in a physical, financial or emotional loss for the patient.
There are many cases in South Africa in which claims have been successful in which medical misconduct was found due to:
1. a hospital, clinic or doctor’s failure to keep satisfactory or accurate records,
2. a failure to discuss the material risks of medical procedures to patients,
3. a failure to administer the right treatment at the right time and inadequate monitoring of injured or post-operative patients.
• Time period for a claim
As a general rule, you must claim damages for medical negligence within three years from the time when you first became aware of the fact that you were a victim of medical negligence.
However, there are various factors which will need to be considered with regards to this general rule and it would be wise to seek legal advice in this regard even if the three year period has already passed since the date of the injury.
Recently, we have received an increased number of medical negligence claims as a result of poor medical care and skill. It goes to show that the care patients are receiving is inadequate, medical personnel must be held responsible for their lack of care and skill.
Should you or anyone you know need assistance in this regard, you are welcome to contact us on info@tuckers.co.za or 011 897 1900.
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