Factors to consider before proceeding with a Medical Negligence claim

10 June 2024 ,  Lefevré Joubert 774

Before instituting a medical negligence claim a legal practitioner must consider the following key factors before advising a client to proceed with a medical negligence claim, namely:

Merits
A legal practitioner must assess the merits of the case, and in doing so consider the severity of the injury or the harm suffered, as well the likelihood of proving negligence utilizing the specific test that was developed for medical negligence claims.

Jurisdiction
A legal practitioner must determine which court or tribunal has jurisdiction over the case, which will depend on the location in which the medical procedure was conducted. 

Prescription
A legal practitioner must consider the time limit for issuing summons, and in terms of the South African law a plaintiff must institute a medical negligence claim as a general rule within 3 years calculated from the date on which the medical procedure was conducted.

Causation
A legal practitioner must establish that there is a clear link between the alleged negligence and the resulting harm or injury.

Damages
A legal practitioner must quantify the damages or losses incurred, and the claim heads that would normally form part of a medical negligence claim will include:
- Past medical expenses
- Future medical expenses
- Past loss of income
- Future loss of income
- Possible claim for the loss of a breadwinner if the patient has died and was the breadwinner of the family
- General damages which will include a claim for shock, pain and suffering, disfigurement, and loss of amenities of life

Expert evidence
A legal practitioner will source and secure opinions from medical experts, in the form of a medical legal report to support the client’s claim and establish breach of care standards.
A legal practitioner will utilize the expert opinion set out in the medical legal report to provide expert evidence during the trial.

Documentation

A legal practitioner during the investigation of the medical negligence claim will gather hospital records and other medical reports and test results as well as any other documentation and photographs that might be necessary to prove the client’s injury and the resulting harm cause by the injury. 

Legal representation
It is of paramount importance that a legal practitioner involved in this process should be an experienced medical negligence practitioner, that will be able to guide the client through this complex process.

Funding
A legal practitioner, during the first consultation, must explain the different cost structures and explore options that will suite the client’s financial position, in this regard options like a no-win, no-fee arrangement can be considered, if a legal practitioner is satisfied that the merits is favourable and is prepared to conduct the trial on a no-win, no-fee basis. 

Emotional preparedness
A legal practitioner must prepare a client for a potentially lengthy and emotionally challenged process. It is important that the legal practitioner specializing in medical negligence claims will have the necessary experience to guide the client through this emotional challenged trial period.

To summarize it is of paramount importance to remember that each case is unique and that a client considering to institute a medical negligence claim, should consult with a specialized medical negligence practitioner to navigate the aforementioned factors effectively to enable the success of the claim either by way of a settlement or trial.

Lefevré Joubert specializes in medical negligence claims and can be contacted should you require his services in future. 

 

 
Related Expertise: Medical Negligence
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