Sibusiso Mtsweni (Attorney)

Medical negligence liability is incurred when patients suffer damages, which may be attributed to sub-standard care provided by health practitioners or hospital personnel in their treatment. A medical negligence claim may be grounded in either contract or in delict and is governed by the law of obligation.

One of the elements which make up medical negligence is an omission. An omission is required due to a duty a medical practitioner owes a patient.

Wrongfulness is present if the act or omission infringes a right protected by law or breaches a legal duty owed by a medical practitioner.

The aggrieved party must show that he or she has suffered harm. If no harm has been suffered, there is no claim. When suffering loss due to medical negligence, an aggrieved party can claim damages; that is, compensation or satisfaction. The purpose of the compensation is to restore the patient to the position he or she would have been in had the wrongful act not been committed.

Causation means that the damage suffered by the patient or plaintiff, must have been caused by the conduct of the defendant or medical personnel. The harm suffered must not be too remote and the loss would not have happened had it not been for the medical practitioner’s conduct.

Fault or blameworthiness is constituted by negligence and rarely by intention. The test will be adapted to the standard of the reasonable medical practitioner, or the reasonable specialist medical practitioner in the field, with a similar degree or professional skill, in the same circumstances as the person alleged to have provided sub-standard medical care.

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