Understanding the language of medical negligence law
Legal language can feel intimidating when you are already dealing with a medical crisis.
At Lanser & Sutherland, we believe that you make better decisions when you understand the words we use – especially in medical negligence cases, where law and medicine meet.
Below we explain some of the most important legal concepts in plain English.
These explanations are for general information only and not legal advice for your specific case.
Core concepts in negligence and delict
These are the building blocks of any medical negligence claim.
Negligence
When someone fails to take the care that a reasonable person or doctor would have taken, and this causes harm.
Legal duty / duty to act
A legal obligation on someone to take reasonable steps to protect another person from harm.
The reasonable person / surgeon / medical practitioner test
The standard that asks what a reasonably careful person or doctor would have done in the same situation.
Factual causation
Whether the negligent act or omission actually caused the harm as a matter of fact.
Legal causation
Whether it is fair and reasonable in law to hold someone liable for the harm, even if they factually caused it.
“But for” test
A test asking whether the harm would still have happened “but for” the negligent conduct.
Reasonable foreseeability
Whether a reasonable person or doctor in that position would have foreseen the risk of harm and taken steps to prevent it.
Novus actus interveniens (new intervening act)
A new event or act that breaks the chain of causation between the negligence and the harm.
Vicarious liability
When one person or entity (often an employer or hospital) is held liable in law for the wrongful acts of another.
Consent, risk and rights
These concepts often arise where information, communication and choices were at issue.
Informed consent
Consent given by a patient after being properly informed of the diagnosis, options, risks, benefits and alternatives.
Material risk
A risk that a reasonable patient would want to know about, or that the doctor knows is particularly important to this patient.
Emotional shock damages
Compensation for a recognised psychiatric injury caused by witnessing or experiencing a traumatic event.
Pure economic loss
Financial loss that is not linked to physical injury to a person or damage to property.
Public policy and legal convictions of the community (boni mores)
The values and sense of fairness of society, used by courts to decide if conduct is wrongful.
Wrongful pregnancy, birth and life
These are specialised claims in reproductive and prenatal medicine.
Wrongful pregnancy
A claim arising where negligent sterilisation or contraception results in an unplanned but healthy pregnancy.
Wrongful birth
A claim by parents that, but for negligent advice or testing, they would have avoided the birth of a child with serious disabilities.
Wrongful life
A controversial claim by or on behalf of a disabled child that they should not have been born but for negligent care or advice.
Evidence and burden of proof
These terms explain who must prove what, and to what level.
Onus of proof (burden of proof)
The duty on a party (usually the plaintiff) to prove their case in court.
Standard of proof (“balance of probabilities”)
The level to which a case must be proved in civil matters: that it is more likely than not.
Res ipsa loquitur
A Latin phrase meaning “the thing speaks for itself”, used where the very nature of the incident strongly suggests negligence.
Hearsay evidence
Evidence of what someone else said, offered to prove the truth of what was said.
Expert witness
A suitably qualified person who gives opinion evidence in their field of expertise.
Factual witness
A witness who testifies about facts they personally observed or experienced.
Contributory fault and sharing responsibility
Sometimes more than one person (including the injured person) has contributed to the harm.
Contributory negligence
When the injured person’s own unreasonable conduct also contributed to the harm suffered.
Apportionment of damages
The court’s process of dividing responsibility and reducing damages where more than one party is at fault.
Joint wrongdoers
Two or more people or entities who together are responsible for the same wrongful act or harm.
The people in your case: parties and roles
Knowing “who is who” can also help you follow the process.
Plaintiff
The person who brings a civil claim to court.
Defendant
The person or body who is being sued in a civil claim.
Applicant
The party who starts an application (motion) in court, usually on affidavit.
Respondent
The party who opposes or answers an application.
Minor child
A child under the legal age of majority, who cannot litigate alone.
Guardian / parent / primary caregiver
The person who has legal responsibility and daily care for a child.
Executor / representative of deceased estate
The person legally appointed to act on behalf of someone who has died.
Curator ad litem
A person appointed by the court to represent someone who cannot properly litigate for themselves in a specific case.
Curator bonis
A person appointed to manage the property and financial affairs of someone who lacks capacity.
Prescription (time limits for claims)
Time limits are crucial in any medico-legal case.
Prescription
The legal rule that a claim expires if it is not instituted within a specified time period.
General civil prescription period
Most medical negligence claims prescribe after 3 years from the date when you knew or reasonably should have known of the essential facts and who was responsible.
Minors and people without capacity
For minors and people who cannot manage their own affairs because of severe brain injury or mental incapacity, prescription is generally paused (suspended) until they become majors or a curator is appointed.
Why we explain these terms
We know that behind each of these words is a real family and a real story.
Our job is not only to apply the law with experience and precision, but also to:
- Translate complexity into clear options,
- Hold the legal, medical and emotional pieces together, and
- Help you make informed decisions about whether to claim, how to proceed, and when settlement is preferable to litigation.
If you would like us to go through your medical records and explain the terminology used there, we are happy to do this in a dedicated consultation – in English, Afrikaans, or a mix of both, whichever is most comfortable for you.