Many people who were harmed by negligent medical care never pursue it, because they assume that too much time has passed. Sometimes they are right. Often, they are wrong, because the law does not always start counting from the day the harm happened. It is worth understanding how the clock actually works before you decide the door is closed.

The three-year rule, and its catch

Under the Prescription Act, most claims of this kind must be pursued within three years, after which they “prescribe” and can no longer be enforced. The catch is in when those three years begin.

The clock does not necessarily start on the date of the negligent treatment. It starts when you have knowledge of the facts from which the claim arises, or when you could have acquired that knowledge by taking reasonable steps. In an ordinary accident, that is usually the same day. In a medical setting it often is not, because the harm and its cause can be hidden inside a course of treatment that looked normal at the time.

What the Constitutional Court said

This distinction was settled in a well-known Constitutional Court case. A patient had a hand injury treated in hospital, and the treatment led to an amputation. He did not know, and could not reasonably have known, that the amputation was caused by the way he had been treated until he obtained the hospital records and expert medical advice. The Court held that prescription did not start when the amputation happened. It started when he had knowledge of the facts that connected his loss to negligence, which required expert input he did not have at the outset.

There is an important limit to this, and it cuts both ways. You do not need to know that the facts add up to negligence in law: that is a legal conclusion for your lawyers, not a fact you must discover. What you need is knowledge of material facts. And you cannot simply sit back: if reasonable steps, such as asking questions or seeking your records, would have revealed the facts, the clock is treated as having started when they would have.

The trap most people never see: the organ-of-state notice

If your claim is against a State hospital or a provincial health department, a separate law applies on top of prescription. Before you may issue summons against an organ of State, you must first serve a written notice of your intended claim, and there is a tight time limit for doing so, generally six months from when the debt became due.

Miss that notice period and you may need a court to condone the delay before you can proceed. This is one of the most common ways good claims are lost on a technicality, and it is a strong reason to see an attorney early rather than late.

A child’s claim survives much longer

There is an important exception for children. Prescription does not run against a minor in the ordinary way. Where a child is injured, for example a birth injury that causes cerebral palsy, the claim is preserved while the child is under 18 and for a period afterwards. In practice, this means a claim on behalf of a child can often be brought years later than people assume. If your child was harmed at or around birth, do not assume that time has run out.

Why “as soon as possible” is still the right answer

None of this is a reason to wait. Even where prescription has not run, evidence fades, witnesses move, memories blur, and records go missing. The strength of a medical negligence claim is built on hospital records, timelines and expert opinions, and those are easiest to secure early. The safest course is always to have the position assessed rather than guessed.

Sources: Prescription Act 68 of 1969, sections 11, 12(3) and 13 (delayed completion, including in respect of minors). Links v Member of the Executive Council, Department of Health, Northern Cape Province [2016] ZACC 10; 2016 (4) SA 414 (CC) (prescription runs from knowledge of the material facts, which in medical cases may require expert advice). Truter and Another v Deysel 2006 (4) SA 168 (SCA) (knowledge of legal conclusions such as negligence is not required to start prescription). Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the six-month notice requirement).

Tzvi Brivik (Author)
Director at Malcolm Lyons & Brivik Attorneys Inc.

Malcolm Lyons & Brivik has acted for victims of medical negligence for decades, including birth injury claims against provincial health departments. If you are unsure whether your claim has prescribed, let us check before you assume the worst. An assessment costs you nothing.

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