For attorneys & medical professionals

We focus on matters where:

• There is a credible allegation of sub-standard care, supported or supportable by expert opinion;
• Causation can realistically be established on a balance of probabilities (using a structured “but for” and legal causation analysis); and
• The quantum (patrimonial + non-patrimonial loss) is likely to justify the cost, complexity and duration of litigation.

Typical areas include:

• Obstetric & neonatal brain injury (HIE, cerebral palsy, brachial plexus palsy)
• Spinal, neurosurgical and orthopaedic injuries with permanent neurologic deficit
• ICU, emergency and peri-operative failures (sepsis, VTE, delayed surgery)
• Medication, ophthalmic and informed consent failures (including visual loss)
• Product liability / device cases (defective implants, metallosis, recalls)

We generally do not litigate:

• Complaints involving very elderly or terminally ill patients with no financial dependants where both causation and quantum are inherently limited;
• Pure “dignity” or “explanation” disputes with no realistic monetary damages;
• “Systemic” grievances more appropriately directed to regulators (HPCSA, OHSC) or internal hospital processes.

We are, however, happy to advise referrers where a matter is better suited to a complaints route than to damages litigation, so that expectations are managed from the outset.

We structure our analysis around the familiar elements of delict:

1. Conduct (act or omission)
2. Wrongfulness (including the breach of a legal duty / infringement of a legally protected interest)
3. Fault (negligence in almost all medical cases)
4. Causation (factual and legal)
5. Damage (patrimonial and non-patrimonial loss)

The public-facing site compresses some of these into “negligence, causation and damages” for simplicity. Internally, and in our professional documentation, we remain aligned with established South African delict texts and case law.

Our starting point is the objective standard:

Would a reasonably skilled and experienced practitioner, in the same specialty and circumstances, have acted differently?

We consider:

• Applicable clinical guidelines, protocols and published standards;
• The clinical context (emergency vs elective, resource-limited setting, information available at the time);
• The practitioner’s role (GP vs specialist vs registrar; public vs private sector);
• The positive legal duties that arise where a patient is in a vulnerable position and reliant on the practitioner or institution.

We distinguish between:

• Negligent diagnosis or treatment;
• Systems failures (staffing, triage, handover, communication, record-keeping); and
• Consent-related failures – including failure to:
• Disclose material risks of medication (e.g. drugs with recognised ocular toxicity or risk of blindness with prolonged exposure);
• Alert patients to the need for monitoring (for example regular ophthalmic review or blood tests);
• Offer reasonable therapeutic alternatives.

Wrongfulness is generally uncontentious in medical cases, given the recognised duty to prevent physical and psychological harm and to respect bodily integrity and autonomy, but we keep it in mind particularly in pure economic loss or constitutional claims.

We treat factual causation as a disciplined inquiry, not an afterthought.

Our primary tool is the “but for” test (conditio sine qua non):

On a balance of probabilities, would the harm in question have occurred but for the negligent act or omission?

In practical terms, we:

• Construct a counterfactual timeline: what should have happened with reasonable care (tests ordered, referrals made, interventions performed, warnings given).
• Compare the likely clinical course under this counterfactual against the actual outcome.
• Identify whether the negligence:
• Caused the harm (no injury or a substantially lesser injury would likely have occurred); or
• Merely formed part of the background to a harm that would probably have occurred anyway.

We pay particular attention to:

• “Vulnerable hosts” – elderly patients, those with advanced malignancy, or multiple comorbidities – where the natural progression of the underlying illness may overwhelm even ideal care;
• Multi-factorial causation – where several negligent and non-negligent factors interact;
• The line of authority allowing for liability where negligence materially contributes to risk or harm, even in complex causal settings, while being careful not to over-extend these principles.

Once factual causation is established, we consider whether it is fair, reasonable and just to attribute the harm to the negligent conduct (legal causation).

Core considerations include:

1. Reasonable foreseeability of the kind of harm

Could a reasonable practitioner in that position foresee the type of harm that in fact occurred (e.g. VTE after prolonged immobilisation, visual loss with certain drugs, neurological deterioration after missed cauda equina)?

2. Directness / remoteness

Is there a sufficiently close connection between the breach and the harm, or is the harm too remote or coincidental?

3. Policy factors

We remain mindful of broader policy considerations recognised by our courts – such as the risk of indeterminate liability, defensive medicine, and the balance between individual redress and systemic pressures on health-care delivery.

In practice, the legal causation inquiry rarely defeats a medical claim that has robust factual causation and serious harm, but it helps identify outliers where the harm is freakish or far removed from the risk created by the negligence.

We adopt standard South African approaches to the assessment of patrimonial loss, using:

Actuarial calculations for:

• Future medical and care costs (including therapies, assistive devices, home modifications, caregiver support, transport);
• Loss of earnings / earning capacity (pre- and post-morbid scenarios);
• Loss of support for dependants.

Expert evidence from:

• Treating and medico-legal specialists;
• Occupational therapists, physiotherapists, psychologists and case-managers;
• Industrial psychologists and vocational experts;
• Nurses and life-care planners (for high-dependency care regimes).

Where appropriate, we distinguish between:

• Costs that would have been incurred in any event (e.g. due to pre-existing pathology), and
• Additional costs attributable to the negligent injury.

We approach general damages (pain and suffering, loss of amenities, disability, disfigurement and infringements of bodily/psychological integrity) in line with standard South African practice:

• We survey comparable case law, noting:
• Nature and severity of injury;
• Age and personal circumstances;
• Functional impact and long-term prognosis.
• We rely on actuarial adjustments (or recognised indices) to convert historic awards to present-day monetary equivalents.
• We synthesise this with:
• Clinical evidence of pain, functional loss and disability;
• Lay evidence of impact on daily life, relationships, work and identity.

In appropriate matters, particularly where there has been a serious invasion of bodily or psychological integrity (for example, wrongful sterilisation, profound informed-consent failures, or gross violations of dignity), we consider whether a constitutional dimension to damages is warranted, while remaining anchored in the existing jurisprudence.

Medical-negligence litigation is expert-driven. Our standard approach includes:

Early identification of key disciplines:

• Obstetrics, neonatology, neurology, neurosurgery, orthopaedics, anaesthesiology, ophthalmology, radiology, ICU, emergency medicine, nursing, pharmacology

Detailed record collation and indexing, including:

• Hospital and theatre notes;
• Nursing charts;
• Anaesthetic records and vital-sign charts;
• CTG tracings and radiology;
• Laboratory results;
• GP and allied-health notes.

Obtaining preliminary screening opinions (where indicated) before embarking on full medico-legal reports, particularly in borderline merits or causation matters.

Ensuring that expert reports are:

• Independent and impartial, directed to the court;
• Properly referenced and internally consistent;
• Prepared with joint minutes, Rule 36(9) requirements and cross-examination in mind.

We encourage referrers to share any prior expert opinions up front, as these may materially influence our view on merits, causation and quantum.

We welcome referrals from colleagues nationwide and are flexible in structuring our involvement, including:

• Acting as principal attorneys with fee-sharing arrangements compliant with professional rules;
• Providing consultative input on merits/causation and case strategy while the primary firm retains the brief;
• Assisting with expert selection, instructions and joint-minute management;
• Drafting or settling pleadings, heads of argument and appellate papers in complex medical matters.

Our expectations in referral matters include:

• A candid discussion about prospects, including red flags on causation and quantum;
• Clarity on roles and responsibilities (client communication, discovery, counsel briefing);
• Fee arrangements that recognise the high upfront costs of experts and the long tail of medico-legal litigation.

We also collaborate with clinicians who:

• Seek independent legal input on potential claims they have encountered or been involved in;
• Require guidance on HPCSA / OHSC complaints, internal investigations or inquests (on the plaintiff or defence side);
• Are willing to act as experts in medico-legal matters and need support in structuring medicolegal reports that are fit for forensic scrutiny.

Where a practitioner is a potential defendant, we advise them to seek indemnity assistance from their professional protection organisation or insurer; we do not act against our own experts and maintain strict conflict controls.