Understanding Prescription Laws in South African Medical Malpractice Cases

Explore the intricacies of the Act and its impact on medical malpractice claims. Learn how prescription laws affect minors, individuals with severe disabilities, and the pursuit of justice.


What is medical malpractice?

Medical malpractice pertains to cases where healthcare professionals, such as doctors or hospitals, deviate from the accepted standard of care, leading to harm to a patient. These cases are governed by delict (tort) law, enabling individuals to seek compensation for harm resulting from negligence. To establish a medical malpractice claim in South Africa, four key elements must typically be proven:

  1. Duty of Care: A duty of care must exist between the healthcare professional and the patient, rooted in the doctor-patient relationship, obligating the provider to deliver treatment meeting accepted standards.
  2. Breach of Duty: The healthcare professional breaches their duty by failing to provide treatment meeting these standards. Breach can take the form of either doing something wrong (commission) or failing to do something necessary (omission).
  3. Causation: There must be a direct link between the breach of duty and the patient’s harm or injury, demonstrating that the healthcare professional’s actions or omissions caused the harm.
  4. Damages: The patient must have suffered actual damages, which can encompass physical injuries, emotional distress, medical expenses, and loss of income as a result of the healthcare professional’s negligence.

South Africa’s Prescription Act 68 of 1969, known as “the Act,” provides that medical malpractice claims, seeking damages for injuries caused by medical errors, generally prescribe after three years from the date of the incident.

However, for minors (those under 18 at the incident), the clock starts at 18, allowing them to claim until they turn 21. Similarly, mentally incapacitated individuals can start the three-year period once (and if) they regain mental capacity.

Prescription and Protected Categories of Claimants

Minors: The law offers special protection to minors, individuals under 18 years of age. The prescription does not begin running against them until they reach adulthood. In practical terms, minors have until their 19th birthday to initiate a claim. However, if the medical error occurred when they were 18 years old, the standard 3-year prescription period applies.

Individuals with Severe Disabilities: South African law extends unique protection to those with incurable, severe, and permanent mental or intellectual disabilities. Critically, their claims are immune to prescription. This means that individuals with such disabilities can pursue compensation for medical malpractice regardless of how much time has elapsed since the incident.

The Significance of Prescription Laws

Prescription laws serve to strike a balance between ensuring that individuals have sufficient time to seek justice and providing legal finality. These laws acknowledge the vulnerability of certain groups and aim to protect their rights by extending prescription timelines or exempting them from prescription altogether.

Some interesting cases:

Loni v Member of the Executive Council, Department of Health, Eastern Cape, Bhisho [2018] ZACC 2 

How the Shoprite Checkers Case Clarifies the Impact of Curators on Prescription Act for Mentally Incapacitated Claimants

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