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- When it comes to the medical care of newborn babies, diagnostic errors are a common type of medical malpractice.
- Parents of babies lost or left permanently disabled due to medical malpractice or negligence can claim.
- Medical malpractice claims must be lodged within three years of the date of the injury in South Africa.
Errors in diagnosis are the most common types of medical malpractice, according to a study by a US medical liability insurer, The Doctors Company, when it comes to children.
Poor medical treatment and surgical errors are the second most prevalent type of negligence in children between 1 and 17 years of age.
This study also revealed that nearly one-quarter of all claims are against obstetricians for making mistakes when delivering babies.
Kirstie Haslam, a partner at a local law firm DSC Attorneys told News24 that a growing number of newborn babies are left permanently disabled, or worse, because of avoidable birth complications due to mistakes in their medical care during and after their birth.
She told us that the infant immortality rate in South Africa stands at 27.8 deaths in every 1000 live births, which is a significant number compared to other countries such as Sweden (2.6), Germany (3.3), Canada (4.3) and the United Kingdom (4.1).
The data on infant fatalities also shows that incidents of medical negligence are rising in South Africa, which is a cause for concern, says Haslam.
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What constitutes medical malpractice?
"Paediatric medical malpractice is a medical professional's act, or failure to act, that deviates from the accepted standard of medical care," explains Haslam.
It includes the following:
- An incorrect diagnosis
- Mistakes with medical procedures
- Prescribing the wrong medication or medicine doses
- Absent or improper wound or post-operative care
- A delay or failure to treat.
Oxygen deprivation
According to Haslam, the leading cause of injuries in South African newborns is birth asphyxia, also known as oxygen deprivation.
Oxygen deprivation is caused by the premature separation of the placenta, often due to an entangled umbilical cord around the neck, says Haslam. She adds that the rate of newborn brain injury due to oxygen deprivation in SA fluctuates between 8.7 to 15.2 per 1000 births.
Damage to the nerves
Another widespread injury in newborn babies is obstetric brachial plexopathy, which damages the nerves at the base of the neck if the baby's head is pulled too firmly during labour.
Haslam says this damage could also occur in the infant's arms, wrists, or hands, resulting in brachial palsy, Erb's palsy or Klumpke's palsy.
Appendicitis and Meningitis
Other common paediatric problems in South Africa include appendicitis – a typical medical emergency among children. If the appendix is not surgically removed in time, the results can be fatal.
Haslam says that between 28% to 57% of children ages two and 12, who are suffering from appendicitis, are misdiagnosed in South Africa.
Meningitis, a devastating disease that can lead to permanent disability or death, is also listed as a common problem.
Meningitis happens in 40 per 100 000 cases which is ten times the rate in the general population, says Haslam, adding that this illness is difficult to diagnose and treat due to symptoms that are non-specific, and mimic those of flu.
Lodging a claim for minor
Haslam advises families who have experienced the tragedy of a child being seriously injured or who have lost a child due to medical negligence to claim compensation. This claim can be made against the medical practice, or the state, depending on where the injury occurred.
According to South African law, medical malpractice claims must be lodged within three years of the date of the injury, but Haslam says that in exceptional circumstances the three-year deadline can be deemed to have started running at a later date.
She advises though that the most cautious and preferred route is always to institute an action within the three years.
Haslam says that when the claim is against a state or provincial hospital, the institution must be notified, in writing, of the intention to sue within six months of the incident.
"When a minor is an injured party, and a parent or guardian has not lodged a claim on his or her behalf, the Prescription Act provides for the prescription period to be delayed until one year after the minor attains the age of 18," Haslam adds.
Haslam says that there has to be proof of negligence for a medical malpractice claim to be successful.
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How to get started?
She says that the best course of action is to get in touch with a knowledgeable and experienced attorney who will gather evidence, analyse medical records and access medical professionals who can testify in court in support of your claim.
"Litigation of this nature can inevitably take a number of years to resolve, largely due to congested Court rolls and mandatory pre-trial case management processes," says Haslam.
She adds that it is very seldom that a defendant makes an early settlement offer to such an action. She says that the case has to proceed to trial, in many instances, to establish that the relevant person or institution is liable for any proven losses.
To avoid delays, parents claiming should seek legal representation as fast as possible to ensure that all deadlines are met in time and that the case is thoroughly investigated, suggests Haslam.
"Any available evidence as to what has happened and what losses have been suffered must be retained to assist in proving your case," she adds.
Expected outcomes
In the instance of a child being injured due to negligent and wrongful action, or inaction, on the part of a responsible person or body, depending on the severity of the injuries, Haslam says that the parents may be able to recoup any treatment expenses incurred, as well as damages for their child's pain and suffering and anticipated future loss of income, or income earning capacity.
"In the tragic instance of a child dying in these circumstances, any claim may be limited to costs incurred relating to the child's burial and the parents' general damages for pain and suffering," she adds.
Haslam says that in some instances, where one or both parents suffer a diagnosable psychiatric injury, such as complicated grief, impacting their ability to work, the parents can claim lost earnings or earning capacity.
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