Suing a Doctor or Hospital in South Africa: What Are Your Rights?

Guide to suing a doctor or hospital in South Africa

Below we offer details on how to claim compensation from a medical practitioner or hospital.

Read the guide in full or choose to jump to a section using the following links:

• who can be sued for medical negligence
• how medical misconduct is determined
• who is legally entitled to compensation
• time limits on claims
• what damages can be claimed
• your right to access your medical records.

Who do you claim from

If you’re a victim of medical malpractice, you can institute a civil case in the Magistrate’s Court or the High Court to claim for damages.

This may involve suing a doctor or another type of healthcare practitioner directly.

In the case of malpractice in a hospital, the hospital or the State may assume vicarious liability.

In other words, the hospital or the State itself may be held liable for malpractice by doctors, nurses, administrators and/or other employees.

Note that claims against the State are subject to certain, special requirements.

How is misconduct determined?

For a medical negligence claim to succeed, it must be shown that:

• the hospital or healthcare provider undertook a legal duty of care in respect of the patient
• the legal obligation of the healthcare provider or hospital to provide a certain level of care and treatment was breached
• the breach of this undertaking resulted in direct injury to the patient
• the injury resulted in financial or emotional loss, or both, for the patient.

Some examples of common medical misconduct in South Africa are failure to keep adequate or accurate records; failure to disclose the material risks of procedures to patients; failure to administer the right treatment at the right time; and inadequate monitoring of injured or post-operative patients.

Are you legally entitled to claim damages?

If you signed an indemnity or disclaimer during admission to hospital or for a particular procedure, you may have waived your right to hold the medical practitioner, hospital or hospital staff liable.

However, the law in this regard is very complex.

Under certain circumstances, you may still be able to claim damages from a doctor, hospital or other healthcare provider even if you did sign an indemnity or disclaimer.

Suing a doctor or hospital: how soon must you make a claim?

Specific time limits apply to medical malpractice claims. Generally, you must claim damages for medical negligence within three years from the time when you became aware of the facts necessary to institute a claim.

Various exceptions apply to this general rule. So if you may have a claim, it’s wise to seek legal advice.

What damages can you claim in medical malpractice cases?

Depending on the circumstances of the case, you may be able to claim compensation for:

• medical expenses (including past and predicted future expenses for treatment, rehabilitation and on-going care)
• loss of income and/or
• damages for general pain and suffering.

Your right to access your medical information

Legally, you have the right to access your medical records.

This applies regardless of whether they’re held by State hospitals or clinics, private healthcare facilities or medical practitioners in private practices.

If the records appear to have been altered, your attorney can give notice to the defendant’s attorney, requiring that the original records be made available for inspection.