Monthly Archives: July 2018

Medical negligence claims

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Medical negligence refers to a negative consequence of a medical treatment that could have been avoided by the medical practitioner. The Health Professions Act 56 of 1974 outlines South African medical law and it should be consulted by any person who suspects a case of medical negligence.

What is Medical Negligence?

Imagine breaking your leg and requiring surgery for it to heal correctly. After being admitted for surgery, the surgeon guarantees you that it is a routine procedure and that your leg will heal perfectly. However, after the surgery, you have no feeling in your one foot. It is possible that a nerve has been damaged. If the surgeon is the primary cause of this consequence, for example he/she was careless, then it is considered as medical negligence.

It is worth noting that a medical practitioner cannot be held responsible for unforeseen complications that arose from unavoidable treatments. If complications arose from unknown sources, even though the practitioner has performed the treatment perfectly, he/she cannot be held responsible.

Any complication that arose after a treatment could be a result of negligence. If you suffer from an unusual complication that you suspect arose from medical treatment, it is advised to get a second opinion. If you are certain that the medical practitioner was negligent, you should not wait too long before you consult a medical malpractice lawyer, because your case can weaken over time; witnesses may forget what happened and documents can go missing.

How Is It Decided Who Was Negligent?

If you believe that you have suffered because of negligence by a medical practitioner, you have the right to lay a claim in court against him/her. A Judge will hear arguments from both legal representations and then decide whether or not negligence has occurred. Usually other medical practitioners are consulted to provide their expert testimony for both cases. The Judge must evaluate all the evidence and then pass judgment on the claim.

  1. In South Africa, the Judge must decide first whether or not the medical practitioner is liable, and then to what extent the patient must be compensated.
  2. In extreme instances, a medical negligence case can turn into a criminal case if it is proved that the medical practitioner is guilty of criminal conduct.

Sometimes the medical practitioner may be completely accountable, for example he/she could have performed the medical procedure incorrectly out of ignorance. It could also be decided that the company is completely responsible, because it did not provide the adequate equipment for the procedure. A Judge may decide that both parties are guilty of negligence and then hold them equally or partially responsible.

How Does the Claiming Process Work?

If you are no longer in need of medical attention, the first person you should get in touch with is your legal adviser. Then it is necessary to inform the Health Professions Council of South Africa to lodge a complaint.

Your legal adviser will request all your medical records to review the evidence so he/she can send a letter of demand to the medical practitioner. The response to this letter will determine whether or not the matter will go to trial; the practitioner may decide to rather settle the matter out of court and to meet the demands. If the matter does go to court, you may be required to testify.

If your claim is successful, the Judge may grant you compensation in an amount that is equal to what he/she considers fair; this may include the legal costs, loss of income and any other cost you incurred.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How do I cancel a lease?

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What happens when a landlord or a tenant wants to cancel a lease? What rules and what legislation apply? What protection does the law provide?

If you want to end your lease early, this can be done in situations where:

  • the Consumer Protection Act or Rental Housing Act applies, or
  • there’s a clause in the contract that allows for early cancellation, or
  • if both parties agree to it.

If, on the other hand, one of the parties wants to cancel because the other is in breach of the contract, then certain notice periods come into effect – the first of which being, of course, that the aggrieved party is required to give written notice for the breach to be remedied.

For tenants

  • If your landlord is in material breach of the lease, then cancelling your lease early will not be in breach of the contract.
  • If your landlord has met all the conditions of the lease and you decide to cancel your lease early, you will be in breach of contract unless the termination of the lease has been mutually agreed upon. Speak to your landlord before making any rushed decisions, chances are, you may be able to come to a mutual agreement whereby you are able to find a replacement tenant or sublet the property for the remainder of your lease.

For landlords

  • Firstly, look to the provisions of the lease itself. Most leases contain a breach clause, which indicate a period of a number of days that are necessary to be given as notice to the tenant of a breach. If there is no breach period specified, it will be a ‘reasonable period’ in terms of the common law.
  • If you give notice of the breach, and it is not remedied in the breach notice period, this means that you can take action to sue for whatever is owed or even issue summons and attach the tenant’s goods by evoking your landlord’s hypothec, but you cannot cancel the lease and evict.

When it comes to cancelling agreements, it is always best to consult a legal expert since doing something from your own understanding and experience could lead to a court case.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)