Seven years ago Mama Sihle* went into hospital to have her baby. Unfortunately, she had complications. Instead of treating her with compassion, kindness and dignity, she says the hospital staff mistreated her and failed to perform medical procedures properly. When she went into labour, she says the nurses were rude and unhelpful, swearing at her and using vulgar language. They left her straight after she gave birth, and when she needed their help, she had to go and look for them after having just given birth to her son. She says she was sent home from the hospital with the umbilical cord still inside her, which caused major medical problems, and that she almost lost her son because of the way the hospital had mistreated her. Mama Sihle is traumatised and upset, and wants to know if she can take any legal action against the hospital.
Scorpion Legal Protection’s specialists advise.
Scorpion Legal Protection’s advice
Sadly, because the matter arose 7 years ago, in terms of civil procedure it has already prescribed. This means that Mama Sihle can no longer claim anything against the hospital.
What should she have done?
According to the Constitution, you have the right to adequate healthcare and safe medical procedures from health institutions/establishments. If this right is breached, the patient or the patient’s family has the right to lodge a formal complaint, or in the case of medical malpractice/negligence, a right to sue.
Medical attorneys in South Africa define medical negligence as a negligent act or omission by a medical professional that results in personal injury to a patient. Doctors in both the private sector and in public hospitals can be held liable for medical negligence.
In the case of a public hospital, as with Mama Sihle’s case, you can file a lawsuit to the Department of Health. Before you can take legal action against a government organisation, The Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 provides that a Section 3(2) Notice must be submitted against the intended state department (in this case, the Department of Health) within 6 months of the incident happening. If mama Sihle had followed this procedure, she would have had 3 years thereafter to institute legal action.
Tips:
For your case of medical negligence to be successful, you should:
- Speak to a legal professional immediately after the incident.
- If you feel that the hospital may have caused further damage to your health speak to a doctor and get a report as this may come in handy in the event that you want to institute legal action.
- You can sue for patrimonial (a reduction in a person's financial position) as well as non-patrimonial (damages that cannot be related to a person's financial estate, but compensation for something like pain and suffering) damages.
How will you be compensated? Every case is different and will be judged on its own merit.
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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.