Don’t let time run out on your legal rights
In South Africa, medical negligence claims must be brought within certain legal time limits, called “prescription periods”. These rules are complicated, especially for children and people who cannot manage their own affairs, so it is important to get advice as early as possible.
Missing a prescription deadline can mean losing your right to claim forever—even if the negligence was clear and the harm was severe. This page explains the key time limits you need to know.
The general rule: 3 years from knowledge
Most medical negligence claims prescribe after 3 years from the date when you knew or reasonably should have known:
- That something went wrong (that you suffered harm);
- That the harm was caused by someone’s conduct (the negligent act or omission); and
- Who was responsible (which doctor, hospital or health department).
This is often called the “date of knowledge” rather than the date of the actual medical event.
What does “reasonably should have known” mean?
The law expects you to act reasonably. If a reasonable person in your position would have realised that something went wrong and started asking questions, the clock may start ticking—even if you didn’t actually know all the details yet.
Example:
- A patient has surgery in January 2022
- Complications appear immediately, but the patient is told “this is normal”
- In June 2023, a second doctor reviews the records and says the first surgery was clearly negligent
- The 3-year clock likely started running in January 2022 (when the patient knew something was wrong), not June 2023 (when they learned it was negligence)
This is why early legal advice matters. We can help you work out when your prescription period actually started.
Special rules for state hospitals and health departments
If you want to sue a state hospital, provincial health department, or any organ of state, you must normally send a written notice within 6 months in terms of the Institution of Legal Proceedings Against Certain Organs of State Act (Act 40 of 2002).
This notice must include:
- Your personal details
- The nature of your claim
- The amount you are claiming (or an estimate)
- When and where the harm occurred
This 6-month notice requirement is in addition to the 3-year prescription period.
If you miss the 6-month window, you can apply to court for condonation (permission to proceed late), but this adds cost, delay and uncertainty. It is far better to act within the original timeframe.
Children and people without legal capacity
For children (minors under 18) and people who cannot manage their own affairs because of severe brain injury or mental incapacity, prescription is generally paused (suspended) until:
- The child becomes an adult (turns 18), or
- A curator is appointed to manage the incapacitated person’s legal and financial affairs
This means that, in theory, a child injured at birth could wait until age 18 to start the 3-year prescription clock.
But waiting too long is still dangerous
Even though prescription may be paused, waiting makes your case harder to prove:
- Medical records are lost, misfiled or destroyed
- Witnesses move, retire or pass away
- Memories fade
- The hospital may no longer exist in the same form
- Defendants become harder to trace
We have seen cases where liability was clear, but evidence was so thin after 10 or 15 years that the claim became unprovable.
Our advice: If a child or incapacitated person has been harmed by medical negligence, investigate and secure evidence as early as possible—even if you don’t immediately issue summons.
When does the clock start for delayed harm or latent injuries?
Sometimes the harm is not immediately obvious. For example:
- A surgical error causes internal scarring that only becomes symptomatic years later
- Medication causes gradual vision loss that is only diagnosed much later
- Cancer is missed on a scan, and the patient only discovers the missed diagnosis when the cancer has progressed
In these cases, the 3-year period generally starts running when you knew or should reasonably have known that:
- You had been harmed, and
- The harm was caused by someone’s negligence
This can be complex. Courts look at what a reasonable person in your position would have known and when. If you are unsure whether your claim is still in time, contact us for an assessment.
What if I’ve already missed the deadline?
If you believe you may be out of time, do not assume all is lost. There are limited circumstances where prescription can be interrupted or where the court may allow a case to proceed, including:
- If the defendant acknowledged the debt or claim in writing (this can interrupt prescription)
- If you were prevented from knowing about the claim due to fraud or deliberate concealment
- If you can show you acted reasonably and there are exceptional circumstances
These are difficult arguments to make, and they require detailed legal and factual work. The earlier you speak to us, the more options we can explore.
Act early, preserve your rights
The single most important takeaway from this page is: don’t wait.
If you suspect medical negligence:
- Contact a lawyer as soon as possible
- Request and secure your medical records
- Make notes of what happened while your memory is fresh
- Gather contact details for witnesses (other family members, nurses, doctors who treated you afterward)
Even if you are not ready to proceed with a claim immediately, taking these steps preserves your evidence and keeps your options open.
How we can help
At Lanser & Sutherland, we:
- Assess whether your claim is still within the prescription period
- Calculate when the clock started running based on your specific facts
- Ensure that any required notices (such as the 6-month notice to state hospitals) are sent on time
- Advise on the best timing for issuing summons—balancing the need to preserve your rights with the need to prepare your case thoroughly
- Help secure evidence early, even if litigation is not immediate
Time is often the difference between a strong case and no case at all.
If you are unsure whether you are still in time, contact us now. We would rather assess your matter early and advise that you still have time, than have you wait and lose your legal rights.
Lanser & Sutherland Inc.
Experience. Compassion. Results.