Sufficient Knowledge, Not Suspicion: Clarifying Prescription In Medical Malpractice Cases

Introduction:

The recent Eastern Cape Division of the High Court judgment in N[...] v Member of the Executive for the Department of Health, Eastern Cape serves as a critical reminder of the intricacies surrounding prescription in medical malpractice claims, particularly where the claimant is a layperson with limited access to medical knowledge. The judgment further delves into how courts interpret "knowledge of the facts" under section 12(3) of the Prescription Act and section 3 of the Legal Proceedings Against Certain Organs of State Act.

Summary of facts:

The plaintiff alleged negligence by medical staff at St Lucy's Hospital during the birth of her child on 23 January 2007. The child suffered severe hypoxic ischemic brain injury, resulting in permanent disability. The plaintiff claimed that the hospital failed to monitor labour adequately and provide reasonable care.

Despite noticing developmental delays, the plaintiff—raised in a rural setting—did not immediately suspect negligence. In March 2021, she consulted attorneys after learning of firms assisting parents of disabled children. Hospital records were obtained late in 2021, and an MRI scan was performed in September 2022, followed by expert reports in October 2022 confirming negligence during labour. A statutory notice was served on 1 November 2022, and summons issued in February 2023.

The defendant opposed the application, arguing that the claim had prescribed and that the plaintiff failed to comply with section 3 notice requirements timeously.

Issues before the court:

The special pleas, merits, and quantum were separated, and for these proceedings, the court was called upon to decide the following issues only:

1. The date on which prescription began to run under section 12(3) of the Prescription Act?
2. Whether the plaintiff had "knowledge of the facts" giving rise to the debt earlier than October 2022?
3. Whether the plaintiff complied with section 3 of the Legal Proceedings Against Certain Organs of State Act. If not, should condonation be granted?
4. Whether the defendant was in any manner prejudiced by the delay in serving notice?

Court's findings and reasons:

Knowledge of facts and prescription:

The court relied on the Constitutional Court's decision in Links v Department of Health, Northern Cape, which held that prescription does not begin until the claimant has sufficient facts to reasonably suspect negligence. Mere awareness of injury is insufficient; the claimant must have grounds to link the injury to possible fault.

Here, the plaintiff only acquired such knowledge after expert reports in October 2022. Expecting a layperson to identify causative negligence without medical input would set the bar too high.

Onus of proof:

Citing Macleod v Kweyiya, the court reiterated that the defendant bears the evidentiary burden to prove when the plaintiff obtained actual or constructive knowledge. The defendant failed to discharge this burden.

Compliance with Section 3 Notice:

The statutory notice was served within six months of the debt becoming due (October 2022), satisfying section 3(2)(a). Serving notice earlier would have been futile as the plaintiff lacked the necessary facts.

Prejudice:

The defendant's claim of prejudice due to fading memories was dismissed. Hospitals maintain records that mitigate such concerns, and these records were available for expert analysis. Therefore, the court found that there was no demonstrable prejudice suffered by the defendant.

Conclusion:

This judgment highlights the importance of understanding when prescription begins in medical malpractice cases. Courts adopt a nuanced approach, recognising that laypersons cannot reasonably suspect negligence without expert input. In a South African context, where there is a large section of rural population, it is critical that prescription in medical malpractice matters is certain and understood. This is particularly so because the rural communities are more vulnerable to medical malpractice cases given the lack or insufficient availability of resources. For healthcare professionals and legal practitioners, the case reinforces or serves as a reminder that:

1. Prescription runs from the date the claimant acquires sufficient facts to suspect fault, not merely from the date of injury.
2. The onus lies on defendants to prove constructive knowledge.
3. Compliance with statutory notice provisions is assessed in light of when the debt becomes due.

Ultimately, this case affirms that prescription in medical negligence matters is fact-sensitive, and premature reliance on prescription defences may fail where plaintiffs act diligently upon acquiring expert confirmation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.