Doctors, even specialists, can make mistakes and we’ve heard a lot of stories that will keep you awake at night before a surgery. But can you actually sue the doctor for malpractice? And if you can; how does the legal process work? Stats show that there is actually an increase amongst South Africans who want to sue their doctors for malpractice. But other questions are: how long do these legal processes take and how many cases are actually successfully resolved?

If it’s anything to go by, successful malpractice suing has grown to 6.2% per year. Of the 6.2% only 5% are found responsible for 54% of the malpractice suits. Your first obstacle is the fact that other doctors usually have each other’s backs and will try to get their colleague off the hook. The other thing is that there has been a sharp increase in the doctors malpractice insurance, which might mean that the dispute could easily be settled without having to go to court. So here’s a few points to consider whether you have a case at all:

  1. Is the doctor registered with the Health Professionals Council of South Africa (HPCSA)?
  2. Have they ignored or compromised the guidelines for good practice? You can find the details at the following contact details: Post Box 205, Pretoria, 0001. Tel: (012) 338 9300. Fax: (012)328 4863. E-mail: hpcsa@hpcsa.co.za
  3. These are the four elements that MUST be present before you can even think about suing:
  • They must have had a duty (the hospital or health care provider) that they undertook to take care or treat a patient.
  • Whether this duty has been breached by not living up to the relevant standard of care.
  • This breach directly links to an injury to the patient.
  • The injury led to a loss – financially or emotionally.
  1. Knowledge is power, and a lot of people don’t know what their rights are. This is the time to start doing your research.
  2. So, what can the doctor or healthcare worker expect as punishment?

This is another debate;  who ultimately makes the judgement?

Penalties include the following:

  • Suspension (which can affect a doctor’s career).
  • A fine (which never really feels just to which they are accused of).
  • The reason why they try settling out of court is that the legal fees can ruin them and their practice financially. Settling is less expensive than the total payable for legal processes.
  1. Will your case be successful?

In South Africa there has been 6.5 malpractice suits every year which amounts to about 26 overall cases within a four year period. Of the 26 suits only 16 were successful. The rest fell by the wayside. So, you need to ask yourself whether you can pay for your own legal fees, wait a long time before your hearing occurs, and whether you’re certain you will be successful.

  1. How do you go about suing a healthcare professional?

Contact the complaints department of the HPCSA at (012) 338 9330.