Can A Hospital Be Sued For Medical Negligence In South Africa?

One of the most unfortunate aspects of visiting a hospital is knowing that medical practitioners cannot always cure all of your medical issues. Although, we do expect them to attempt to help us to the best of their abilities, providing us with professional care under acceptable standards of practice. Sometimes, hospital employees do not follow through with patient care correctly. In these instances, you might wonder, can a hospital be sued for medical negligence?

You can sue a hospital for medical negligence as it can assume vicarious liability for its employees. In the case of a state hospital, the State represented by the Minister of Health or relevant MEC can be held liable. In the case of private hospitals, the owners or managers can be held accountable.

Many aspects go into a medical malpractice claim, and before looking into them, it would be a good idea to look into what constitutes medical malpractice. From there, it will be easier to understand in what situations you could institute a claim when a hospital might be liable for such a claim, how you might go about instituting it, and what kind of time frame you would need to do so.


What Constitutes Medical Negligence?

When we refer to medical negligence in a South African setting, we describe a situation whereby an unforeseen negative consequence of medical treatment occurred that could have been avoided by the medical practitioner/s involved.

The medical law in South Africa dictates that for it to be termed medical negligence, the injury suffered must be due as a direct result of the actions, or lack thereof, of the medical practitioner.

In these instances, the patient must have suffered an injury due to the medical practitioner’s actions. Including but not limited to aspects such as:

  • Conducting an incorrect procedure;
  • Oversight of an essential step during treatment;
  • Misdiagnosis;
  • Failure to carry out treatment or a step on time according to a reasonable standard of care: for example, when a medical caregiver fails to administer treatment or medicine, leading to the patient suffering;
  • Premature discharge;
  • Failure to recognise symptoms;


If the injury occurred due to unfavourable circumstances, even though the medical practitioner followed the correct procedure, this could not be termed medical negligence.


Types Of Compensation

Victims who have opted to sue a hospital for medical negligence can claim compensation. This compensation can include but is not limited to:

  • Past loss of earnings;
  • Past and future hospital and medical expenses;
  • Future loss of income and any interference with earning capacity;
  • Future supplementary expenses;
  • General loss of amenities of life or disfigurement;
  • General damages;


When Can A Hospital Be Sued For Medical Negligence?

In South Africa, you can sue a hospital for medical negligence if it is deemed that one of the hospital’s employees, for example, nurses, doctors, administration staff, or any other employee, has acted in a negligent manner that has resulted in injury or damages. In cases such as these, the hospital can assume vicarious liability.

Vicarious liability translates into the situation whereby an employer can be held liable for their employee’s negligent actions during their employment.

In some instances, you might find that you would be unable to sue the hospital in question for several reasons. These reasons could include the fact that the injury was due to the actions of a doctor who is not an employee of said hospital but rather a contractor. In this instance, you would need to sue the doctor themselves rather than the hospital.

Although, if you can prove that the injury occurred due to a shortfall of the hospital in question, you might still be able to sue the hospital itself. For example, if the hospital failed to provide necessary and adequate equipment or was short-staffed. In these cases, the judge presiding over the subject might find that both parties, the hospital, and the medical practitioner, be held partially accountable or equally liable.

Another aspect that might not work in your favour when suing a hospital is if you signed an indemnity form before being treated. Although the law in this regard in South Africa is very complex, you may still be able to claim damages from the hospital.


State Vs. Private Hospitals

After discussing some circumstances around when can a hospital be sued for medical negligence, it would be good to understand the difference between suing a State or a Private hospital.

In the case of suing a State Hospital, in some instances, the State, represented by a  State Representative, Minister of Health, or the local MEC, may be held liable in their capacity.

If, on the other hand, you are suing a Private Hospital, the owners or managers might be held liable.


Time Limits

One last aspect for you to consider before deciding to sue for medical negligence is the time limit on these claims. You must put in your claim within three years from when the negligence occurred or when you became aware of the resulting injury. There are always exceptions to the rule, including but not limited to if a patient lacks mental capacity or is under eighteen.


How To Pursue A Medical Negligence Claim Against A Hospital

So can a hospital be sued for medical negligence in South Africa? Yes, it can, although these cases are wrought with difficulties and technicalities, and they can often take years to conclude.

If you believe that you have suffered due to medical negligence and wish to sue the hospital where the injury occurred, then it would be best practice to keep all hospital records and any other documentation you might have concerning the case.

Due to the technicalities involved in such cases, the best course of action would be to contact a suitably qualified firm of attorneys to help you traverse the process surrounding a claim of this nature.

Our Burnett Attorneys & Notaries team has abundant experience with medical negligence and medical malpractice claims. We are, therefore, well versed in guiding you through submitting and defending your claim. We also understand the difficulties, loss of income, and extraneous circumstances surrounding this type of claim and treat each case with the individuality it deserves. If you have any questions or need help, please do not hesitate to contact us.