Do I Have a Medical Negligence Claim?
Understanding whether your case is viable—and what happens next
We know that contacting a lawyer about a medical experience usually happens at a painful time after a serious injury, a traumatic birth, or the loss of a loved one.
This page is designed to help you understand how South African law looks at medical negligence claims, and why not every adverse outcome becomes a viable case, even where there may have been mistakes.
Important: This page is general information, not legal advice. Every case turns on its own facts and expert evidence.
The three-legged stool: negligence, causation, damages
Negligence
We must show that the healthcare provider did not act with the level of care and skill that a reasonably competent practitioner with similar training would have exercised in the same circumstances. In other words, the standard of care was not met.
Causation
It is not enough to show that the care was substandard. We must also prove that the negligence caused the injury complained of. This includes:
- Factual causation: the injury would probably not have happened but for the negligent act or omission; and
- Legal causation: it is sufficiently closely connected to the negligence that the law considers it fair to hold the provider responsible.
Damages
Finally, we must show that the injury resulted in measurable loss that the law compensates—such as past and future medical expenses, loss of earnings or earning capacity, and general damages (including pain and suffering and loss of amenities of life).
Think of it as a three-legged stool: if any one leg is missing, the claim cannot succeed. That is why we assess all three elements carefully before taking on a matter.
Think of a claim as a three-legged stool.
If any one of the three legs – negligence, causation or damages/harm – is missing, the stool cannot stand, and the claim cannot succeed.
LEG 1: Negligence—Did the care fall below an acceptable standard?
In medical law, negligence does not mean a poor outcome, and a healthcare provider is not automatically at fault simply because a complication occurred.
A healthcare provider may be negligent if, in the circumstances, they failed to act with the level of care, skill and judgment expected of a reasonably competent practitioner in the same field, and their decisions or treatment therefore fell below what accepted professional practice would regard as reasonable.
When negligence is assessed, medico-legal experts assist by explaining the level of care, skill and judgment expected of a reasonably competent practitioner in the circumstances, based on their expertise and experience. However, the enquiry remains fact-specific, and the standard is applied to the particular circumstances of the case.
LEG 2: Causation—The “but for” question
This is where many otherwise strong-sounding cases fall down.
Even if the care was substandard, it must still be shown that the injury, death, or specific loss being claimed was a consequence (sequelae) of the negligent act or omission. It is not enough that something went wrong after treatment. The injury or loss claimed must flow from the negligence.
Causation is usually assessed in two steps.
Step 1: Factual causation - the “but for” question
But for the negligent act or omission, would the injury or loss probably still have occurred?
Put differently, if proper, reasonably competent care had been given, is it more likely than not that the injury or death would have been avoided, or would have been materially less severe?
If the injury or loss would probably have happened anyway, negligence did not factually cause it.
If the injury or loss would probably have been avoided or reduced, factual causation is supported.
Step 2: Legal causation
Even if we can show that substandard care factually contributed to the outcome, South African law applies a further limit. The question is whether it is fair and reasonable to hold the practitioner legally responsible for that consequence.
This is the question of remoteness. The court asks whether the consequence is a sufficiently close and direct result of the negligent act, and whether it falls within the kind of risk the negligence created. A key part of this enquiry is foreseeability. Would a reasonable doctor in those circumstances have foreseen this kind of consequence and taken steps to guard against it? Foreseeability is important, but the enquiry is broader and includes considerations of reasonableness, justice and policy.
Practical takeaway: If the evidence cannot support either that the negligence probably made a material difference, or that the consequence is closely enough connected to the negligence to justify legal responsibility, the causation leg falls away, even if the care felt inadequate or distressing.
How we assess causation in your case
How we assess causation in your case
When we consider taking on a matter, we carefully examine:
- Your (or your loved one’s) underlying health, including age, pre-existing conditions (comorbidities), and prior prognosis.
- The natural course of the illness or injury, meaning what would likely have happened even with appropriate care.
- The timeline, meaning whether there was enough time for the negligent act or omission to bring about the outcome (for example, sustained untreated hypotension versus a brief, quickly corrected drop in blood pressure).
- The “but for” question, meaning what would, on a balance of probabilities, have happened if reasonably competent care had been provided.
- Independent expert opinions on both factual causation (the “but for” enquiry) and legal causation, meaning whether the consequence is sufficiently closely connected to the negligence to justify legal responsibility (including issues of foreseeability and remoteness).
If causation cannot be proven on a balance of probabilities, we will tell you and explain why. It is part of our professional duty to give candid advice and not to create expectations where the medical and legal evidence does not support a claim.
LEG 3: Damages—What the law actually compensates
Even if negligence and causation are present, the damages you can legally claim must involve a recognised, compensable loss, and in practice the claim must usually be substantial enough to justify the cost and risk of litigation.
South African law generally does not award money simply to punish a doctor or hospital, and it does not compensate grief on its own. It compensates for proven loss, both financial and non-financial.
In each instance, the claimant must prove that the loss is a reasonable and foreseeable consequence of the negligent act and is not too remote.
Financial (patrimonial) damages
These are measurable financial losses that arise as a consequence of the negligent act or omission. They may include:
Past hospital, medical and related expenses
Reasonable expenses already incurred as a result of the injury attributable to the negligence, including treatment-related costs, provided they were incurred as a consequence of the negligent sequelae and are not too remote. Receipts and vouchers should be kept to prove these expenses.
Future hospital, medical and related expenses
The reasonable costs of future treatment, care and support made necessary by the injury attributable to the negligence, such as therapies (physiotherapy, occupational therapy, speech therapy and biokinetics), nursing or caregiving assistance, assistive equipment, home adaptations, and transport to appointments, provided these needs arise from the sequelae of the negligent act and are not too remote.
Loss of earnings / loss of earning capacity
Where the negligent injury has reduced the person’s ability to work or earn, whether by forcing a change of job, limiting hours, or preventing work altogether, the law may compensate for the resulting loss of earnings or loss of earning capacity, provided the loss is causally linked to the negligence and is not too remote.
Loss of support
A claim by dependants (often a spouse and/or children) where a person who supported them has died as a result of the negligent act or omission, and the dependants have consequently lost that support. The claimant must still prove that the support loss is a reasonable, foreseeable consequence of the negligence and not too remote.
Funeral costs
Reasonable burial and funeral expenses following a death, where the death is attributable to the negligent act, and the expense is a reasonable consequence of it.
General damages: pain, suffering, and loss of quality of life
General damages compensate for the non-financial impact of an injury, assessed with reference to the nature, severity and duration of the injury and its effect on the person’s life. They may include pain and suffering, loss of amenities of life, disability, and disfigurement.
Important limitation: Deaths of very elderly patients
In limited circumstances, a close family member may claim where the negligent treatment of their loved one causes a recognised psychiatric condition (for example PTSD or major depressive disorder) requiring treatment and supported by appropriate expert evidence. Ordinary grief or sadness, without a clinically recognised psychiatric injury, is generally not compensable. The psychiatric injury must still be shown to be a reasonable and foreseeable consequence of the negligent act and not too remote.
How we assess your enquiry
A detailed summary / timeline of events in as much detail as possible, setting out what happened, where (hospital/clinic, dates, province), and by whom (identity of all medical practitioners involved)
The age and health of the person affected (including any major pre-existing conditions)
The main consequences (for example, death, disability, loss of vision, paralysis, cognitive impairment)
Whether there are financial dependants (for deaths) or ongoing care and treatment needs
Any medical records or reports you already have
Apply for case assessment
Complete our detailed case application form so we can review your matter thoroughly.
Learn more first
Read our articles on damages, time limits, and legal costs before deciding.
How courts decide the amount of general damages
South African general damages awards are very conservative.
In South Africa, courts do not simply award an arbitrary figure for general damages. Instead, they:
- Look at previous, broadly similar cases where general damages were awarded
- Consider the facts of the particular case—the nature and severity of the injury, age of the plaintiff, impact on work, family life and independence
- Often rely on actuaries and legal texts that take historic awards and update them to present-day monetary values (to account for inflation and economic changes)
This means:
We cannot simply “name a number” for pain and suffering.
We are, in theory, confined to what the courts have awarded in comparable cases, adjusted to today’s value.
Our role is to:
- Analyse the full impact of the injury across all relevant facets
- Obtain the necessary expert and lay evidence
- Place your case within the realistic range suggested by prior case law and actuarial updating
Our commitment to you
We understand that reaching out for legal help after medical incident is difficult. You may be grieving, in pain, overwhelmed, or simply confused about what happened.
Our promise is simple:
We will listen to your story with compassion and without judgment
We will assess your case honestly against the legal and medical evidence
We will tell you clearly whether we can help and if we can't, why not
We will never string you along with false hope or unclear answers
We will treat you and your loved one's story with the dignity and respect you deserve
Not every case can be pursued. But every story deserves to be heard and to receive an honest answer.
Ready to discuss your case?
If you’ve suffered serious consequences as a result of medical negligence, if your insurance claim has been wrongly declined, or if you need a qualified mediator for a complex healthcare dispute, we’re here to help.