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Dealing with the legalities of medical negligence as a patient

A claimant can sign an agreement with an attorney, who will then finance litigation on the client’s behalf: Adams & Adams partner Jean-Paul Rudd.

NOMPU SIZIBA: Negligence in medical care in the healthcare sector is said to be quite common, which can lead to post-operative complications, not to mention long-term harm. A common occurrence is the finding of a swab left inside a patient’s abdomen, for example. So how can people who’ve been affected go about getting some sort of legal resolution from these types of situation?

I’m joined on the line by Jean-Paul Rudd. He’s a partner and personal-injury medical negligence attorney at Adams & Adams. Thank you so much for joining us, Jean-Paul. Now, how rampant are cases of medical negligence in this country, and what prospect does the average person have of winning such cases?

JEAN-PAUL RUDD: Good evening, Nompu. Thank you for having me on your show, and good evening to your listeners. Yes, unfortunately medical negligence is on the rise in South Africa and the world over. Unfortunately it’s not just in South Africa, it’s rampant right over the world. There are various cases daily now in our courts, medical-negligence cases ranging from injuries at birth to complications following surgery, to foreign objects being left in the patient. So it’s really a vast range of cases and claimants as well, old and young. There really is an increased amount of these cases.

NOMPU SIZIBA: If you are in a situation where you’ve been medically neglected, how do you go about fighting a case? Presumably it needs a lot of money.

JEAN-PAUL RUDD: Yes, unfortunately these cases are very costly. But there are ways around that. I’ll just tell you how to start a case off.

Obviously the medical records are absolutely critical in thee matters. So your hospital records, your doctor’s clinical notes, x-rays,  scans – those are essential documents because they are evidence that you will present in court eventually down the line. You will discover these documents, and then you will involve an expert witness to testify on your behalf regarding the negligence of a doctor or hospital, or whatever the case may be.

NOMPU SIZIBA: So the reality is, Jean-Paul, that if you happen to not have that much money and you do become a victim of medical negligence, you are just going to have to live with it.

JEAN-PAUL RUDD: No, it’s not like that. There are contingency-fee agreements that clients can sign with attorneys. What that basically means is that a client doesn’t have money and can’t afford the litigation. Litigation is extremely expensive and a medical-negligence matter can run into hundreds of thousands of rands. So what they do, and what government did many years ago, was bring in a Contingency Fees Act, which is basically [allowing for] an agreement that the client signs with the attorney, and the attorney finances the matter on the client’s behalf.

But, as a result of the financing and taking on the risk of the matter, an attorney is entitled to  a higher fee should the matter be successful. Should the matter not be successful, the client won’t be charged in the matter. So that’s a way of getting around  the funding of litigation. Government appreciated many years ago that it was just unaffordable for your average claimant.

NOMPU SIZIBA: John Paul, we actually need to have an extended conversation on this matter, but we’ve run out of time. Thank you so much for your time. That was Jean-Paul Rudd, a partner and personal-injury medical negligence attorney at Adams & Adams.

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