Medical negligence cases are notoriously complex and often hinge on the difficulty patients have in establishing that there was in fact negligent conduct by a medical practitioner and then having to institute action for the harm they have suffered. By this time, substantial time may have passed, and the possibility of prescription may have reared its head. In this article, we briefly look at prescription in the context of medical negligence cases and what our courts have to say. 

Prescription is in most cases a relatively straightforward question to answer. You have three years from when the debt (cause of action) became due to institute the legal action, and if not, the claim is deemed to have prescribed. 

But, when dealing with medical negligence matters this can become a bit more complicated.

Section 12(3) of the Prescription Act states that:
“A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”

Medical negligence claims are largely delictual claims where negligence and causation are essential elements to prove that you have a cause of action. When considering the negligence element, it is important to note that it has a factual and legal aspect. In other words, a person would not be deemed to have knowledge of the debt until he knows the facts that would lead him to think that there was a possibility of negligence, and in fact that the negligence caused the disability/harm he has suffered.

The Constitutional Court laid down this important principle in the matter of Links v Member of the Executive Council, Department of Health, Northern Cape Province (CCT 29/15) [2016] ZACC 10; 2016 (5) BCLR 656 (CC); 2016 (4) SA 414 (CC). In this case, the particular question that had to be answered was what the “facts” were from which the debt arises and which the creditor was required to know before the debt could be said to be due and, therefore, before the prescription could start running.

Mr Links received medical treatment on 26 June 2006, which eventually caused him to lose the use of his left arm. He was hospitalised from 5 July 2006 until the end of August 2006. A summons was served on 6 August 2009 and in response to the summons the MEC for Health raised the special plea of prescription. The Court had to determine whether the required facts were within the knowledge of Mr Links on 5 August 2006. Having considered the facts, the Court found that because Mr Links was admitted for hospitalisation until the end of August 2006 his movement was restricted and he could therefore not have acquired the knowledge needed to establish that there was negligence from any person beyond the medical and nursing staff of the hospital. As such, the special plea was dismissed, and the court found that Mr Links’ claim had not prescribed. Had the Court found from the facts that Mr Links had acquired the knowledge needed to establish the possibility of negligence, the claim by Mr Links would have been prescribed.

This demonstrates that the timeline becomes vital in determining whether a claim has been prescribed in medical negligence cases. Should you therefore believe that you may have suffered harm/damage resulting from medical negligence, it is vital that you do not delay and consult your attorney or medical negligence specialist as soon as possible to help you assess the merits of your case and ensure that your claim does not fall foul of prescription. 


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