How To Sue A Hospital In South Africa: A Comprehensive Guide


Medical malpractice occurs more often than you might think, with millions of rands in damages getting paid out by State hospitals every year. If you believe you have been a victim of medical malpractice and would like to know how to sue a hospital in South Africa, it’s essential to have a basic understanding of the legal process involved.

The most crucial part of suing a hospital in South Africa is acquiring proper legal representation. Once you have done this, you can start putting together your case, which involves gathering evidence, the pre-litigation process, in some cases, mediation, and then court proceedings.

The following discussion will provide an informative guide on how to sue a hospital in South Africa. We’ll walk you through the conditions under which you can sue, the court process, typical payment methods, and the pros and cons of mediation and arbitration. So, let’s dive in and empower you with the knowledge you need to pursue your case.


When Can You Sue A Hospital?

To successfully sue a hospital in South Africa, you must establish that the hospital or its staff breached their duty of care, resulting in harm or injury. Here are some common scenarios where you might have grounds for a medical malpractice claim:

  • Surgical Errors: Surgical procedures performed negligently, resulting in complications, unnecessary injury, or worsening of your condition.
  • Misdiagnosis or Delayed Diagnosis: If a healthcare professional fails to diagnose your condition accurately or on time, leading to further harm, you may have a valid claim.
  • Medication Errors: Cases where medication was incorrectly prescribed, dispensed, or administered, causing adverse effects or worsening of your health.
  • Birth Injuries: Negligence during pregnancy, labour, or delivery resulting in harm to the mother or the baby, such as cerebral palsy or other birth-related injuries.
  • Inadequate Care or Neglect: If you experienced substandard care, neglect, or abuse while in the hospital’s care, you may have a claim against the facility.


How To Instigate A Claim Against A South African Hospital

If you are wondering how to sue a hospital and are worried that it will be a daunting experience, you are not too far off, as these cases are often time-consuming and expensive. Yet, one good thing is that most claims processes follow a pretty simple outline, which will be similar to the following:

  • Seek Legal Advice: Consult an experienced medical malpractice attorney who will have the ability to assess the merits of your case and guide you through the legal process.
  • Gather Evidence: Collect all relevant medical records, test results, prescriptions, and any other documents supporting your claim. Eyewitness testimonies and expert opinions can also strengthen your case.
  • Pre-Litigation Process: Your attorney will assist in compiling a comprehensive letter of demand outlining your grievances and the compensation you seek. This process initiates the pre-litigation negotiation phase with the hospital.
  • Court Proceedings: If you and your legal representation cannot negotiate a satisfactory resolution with the hospital, your attorney will file a summons with the appropriate court. The court process may involve pleadings, discovery, and, ultimately, a trial.


The Court Process

If your case goes to trial, it’s best to be as prepared as possible. In such cases, your attorney will explain what will happen, what you might expect from the hospital’s legal team, and even what you could expect from the court officials you will deal with.

A brief breakdown of what you might expect can include the following:

  • Pleadings: The plaintiff’s attorney drafts a summons and particulars of the claim, while the defendant’s attorney files a notice of intention to defend. This process sets the stage for the legal dispute.
  • Discovery: During this phase, both parties exchange relevant documents and information to build their cases. This phase may also include expert opinions and witness statements.
  • Mediation and Arbitration: Courts often encourage alternative dispute resolution methods, for example, arbitration or mediation, to settle without going to trial. These processes can save time and money and offer more control over the outcome.
  • Trial: If mediation or arbitration fails, the case proceeds to trial. Evidence is presented, witnesses are called, and the court makes a final decision based on the facts presented.


3 Typical Payment Methods

One of the main questions when considering how to sue a hospital will always be, how will you pay for it? These types of court cases often take a long time to come to a resolution, which can be costly in legal fees. Typically, medical negligence cases call for one of the following three types of payments:

  • Contingency Fee Agreement: In South Africa, many medical malpractice attorneys offer to work on a contingency fee basis of a no-win no-fee, which means they only receive a payment if you win your case, typically taking a percentage of the settlement or your awarded damages.
  • Legal Aid: If you meet specific financial criteria, you may qualify for legal aid provided by the South African Legal Aid Board. This option offers access to legal representation at no cost or a reduced fee.
  • Private Payment: Some individuals prefer to pay their attorney’s fees directly, either by the hour or through a pre-agreed fixed fee arrangement. Discuss the payment options with your attorney to find the best fit for your situation.


The Pros And Cons Of Arbitration And Mediation

Mediation and arbitration offer alternative paths to resolving medical malpractice disputes. Here are some advantages and disadvantages of each method:


  • Pros: Allows open communication, promotes a cooperative approach, and offers greater control over the outcome. It’s generally less time-consuming and less expensive than going to trial.
  • Cons: Outcomes are non-binding unless a settlement agreement is reached. If no resolution is reached, the case may still proceed to trial.



  • Pros: Provides a private, less formal setting than a trial. The arbitrator’s decision is binding, which can lead to a quicker resolution than litigation.
  • Cons: Limited avenues for appeal and fewer discovery opportunities than the court process. Arbitration fees may also be a consideration.


Suing a hospital in South Africa for medical malpractice is a complex process that requires careful consideration and legal expertise. You will be better equipped to navigate this challenging journey if you understand the conditions under which you can sue, the court process, payment methods, and the pros and cons of mediation and arbitration.

Remember, seeking the guidance of a knowledgeable medical malpractice attorney is crucial to building a solid case. Our Burnett Attorneys & Notaries team has extensive experience with these sorts of cases, and we practice on a contingency fee basis. If you have any further questions or want advice on proceeding with your case, please do not hesitate to contact us.