Medical Malpractice for Healthcare Professionals
Does a harmed party have an unlimited amount of time to claim for damages from an alleged
The answer to this question is no. The law of prescription places limitations on the amount of time
an aggrieved party must institute legal action against a person who has caused them harm. The law
is well developed on the issue of how long a litigant must institute action. There are two pieces of
legislation which deal with this matter and numerous judgments which have developed the
interpretation of these laws.
The law of prescription is governed by the Prescription Act 68 of 1969 and in certain situations by
the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The Prescription
Act has been described as the cornerstone of the laws regulating the extinction of debts by
prescription. The Prescription Act provides for varying periods of prescription but the general time
period for prescription is three years. The Prescription Act in section 12(3), states that a debt shall
not be deemed due until the creditor has knowledge of the facts from which the debt arises, and
the identity of the debtor, provided that the creditor shall be deemed to have such knowledge if
they could have acquired it by exercising reasonable care.
There are exceptions to the periods of prescription, the most significant of which is if the claimant
is impeded by either mental illness or is a minor (less than 18 years old). Prescription would then,
if the claimant is a minor or insane, be completed and the claim would have prescribed one year
and one day after the relevant impediment ceased to exist. A minor’s parent’s or guardian however
can institute action on behalf of the minor and this is true for an insane person’s curator.
In any litigation where there is a claim from a party for damages two questions need to be asked.
These questions are important when determining if a claim has prescribed. When did the harm
occur? This for example is the day that the medical intervention (e.g. surgery) was completed
i . The
second question makes calculating prescription treacherous. It must be asked when the harmed
party became aware of the harm and identity of the debtor? The patient who underwent the surgery
may only have discovered that he had suffered harm a few days, weeks, months or even years
following the surgery. Prescription only starts to run when the claimant reasonably ought to have
become aware of the harm and the identity of the debtor (the person who caused the harm).
In the February 2018 Constitutional Court judgment of Mzwandile Owen Loni v MEC of Health
Eastern Cape the court was faced with the question of when prescription began to run on the facts
of the case. The Applicant was first admitted to hospital on August 1999 and treated for several
months for a gunshot wound to his leg. The applicant (the patient) continued to experience pain
following his admission. This included wound sepsis and other complications which caused him
severe pain and discomfort. The applicant however only instituted a medical negligence claim in
June 2012, which was just shy of 13 years after the initial harm arose. The applicant argued that he
only acquired knowledge of the negligence when he went to a specialist in 2011 to treat the
continued pain in his leg and his constant limp despite being in possession of his hospital file from
In a similar case of Dirk Links v MEC of Health, Northern Cape in 2016, the Applicant only became
aware of the harm which was caused to him a few months after his first surgery took place. That
surgery took place on 5 July 2006. The patient found out about the harm caused to him only in
September 2006 when the full extent of the harm became apparent. However, he only instituted
action on 6 August 2009 which is 3 years and 1 month after the surgery took place. The defendant
raised a special plea of prescription. The High Court concluded that the claim had prescribed. The
Supreme Court of Appeal did not grant leave to appeal so the Constitutional Court was approached.
The Constitutional Court granted leave to appeal. The Constitutional Court interpreted the
Prescription Act and asked the question when does a person reasonably become aware of what
caused the harm and who to calculate when prescription starts to run. The court held that:
“... it would be unrealistic for the law to expect a litigant who has no knowledgeof medicine to have knowledge of what caused his condition without having first
had an opportunity of consulting a relevant medical professional or specialist
for advice. That in turn requires that the litigant is in possession of sufficient
facts to cause a reasonable person to suspect that something has gone wrong
and to seek advice.”
i. In the context of the prescription act a claim for damages arising from medical malpractice damages allegedly caused by a healthcare practitioner the relationship between the patient and the healthcare practitioner is that of creditor and debtor.
Administration: 0860 NATMED (628 633)