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Misdiagnosis or delayed Covid-19 test results – can you take legal action?

Such issues are likely to increase as more cases come to light: Mthokozisi Maphumulo from attorneys Adams & Adams.

NOMPU SIZIBA: A delay in medical test results can be costly to the person who’s undergone the test, and such delays can arise for myriad reasons. This issue is particularly relevant now in the time of Covid-19 and, due to the disease’s infectious nature, those who test are encouraged to go into quarantine until such time they know their result. When public and private health laboratories are stretched at this time, and backlogs build up, it’s an unfortunate topic to raise. But it’s still worth having the chat about under what circumstances individuals can sue for a delay or misdiagnosis of their test.

Well, to share his wisdom on this topic. I’m joined on the line by Mthokozisi Maphumulo, a litigation attorney at Adams & Adams. Thanks very much Mtho, for joining us. It does seem unfair to be litigious in an environment where the country’s health and testing systems are overstretched currently, but we can’t run away from the fact that delays in notification of test results, or even misdiagnosis, particularly in relation to Covid-19, can cause all sorts of problems. Just take us through some of the problems you’ve observed and foresee.

MTHOKOZISI MAPHUMULO: Obviously with more cases being reported now, and more people testing positive, it puts some strain on the health system and the result. Chances of misdiagnosis remain. Well, there have already been major delays in the release of test results. So those are the issues that are there. I just read something in the Eastern Cape where some of the test results were ….. [1:42. So those are the issues that you are going to see most likely in the upcoming weeks, the coming months, as more and more cases come to light.

NOMPU SIZIBA: Yes. Delays in the laboratory systems can arise for many different and mostly innocent reasons. So under what circumstances could one have a claim in the event of a delay or a misdiagnosis?

MTHOKOZISI MAPHUMULO: This will be in the case where the testers are looking at the delay. Say the delay was unnecessary, for example, unnecessary where let’s say, the laboratory was aware that there was an emergency in the testing. So if they delayed the results and, extending from delay, the relevant testing has now ……  if there are opportunities, employment, for example, or any other opportunity, travel or whatever, and . Also in the case where they needed to take some medication timeously, but due to the delay they were not able to take the medication. So it would be in those cases.

NOMPU SIZIBA: And it’s not enough to just allege that the delay or misdiagnosis costs you as an individual. You actually have to demonstrate the loss, isn’t that so?

MTHOKOZISI MAPHUMULO: Yes. You need to present the evidence. They were saying in there that the person who makes the allegation will have to prove it. So typically we will come to say, if you have the documentation now, for example, confirming the job interview, which now you missed out on due to the delay. So you need to provide that evidence indeed to say indeed …… this opportunity or the medical support, the evidence that, but for the delay, you’d have been able to treat the condition and to not let it develop to more complicated health issues.

NOMPU SIZIBA: If someone feels strongly enough to pursue a matter like this – of course these things are not open and shut cases, a lot of it will require interpretation – how costly would it be to take a matter of this nature to court?

MTHOKOZISI MAPHUMULO: This kind of matter means more to us, medical, …… in my  practice. So, if you approach an attorney, especially in these kind of cases, they usually do such cases on a no-win, no-fee basis. So it wouldn’t cost you much. And, if you win, then they will take a certain percentage which is limited by relevant act.

NOMPU SIZIBA: Mtho, we’ve heard a well-publicised story of an individual who was apparently tested positive. He had to self-isolate and his colleagues had to do the same, and the main office where they worked had to be shut down and deep-cleaned. But that individual was later advised that a mistake had occurred, and that in fact he was negative for Covid-19. Would that individual’s firm be in a position to sue because of the lack of productivity that resulted from that misdiagnosis, and the deep-cleansing that had to take place, and so forth?

MTHOKOZISI MAPHUMULO: There is a good chance to say there’s a chance, because if…… says the company, or the workplace, that means you will suffer some loss. It may not be so great, all depending on the ……. ….. . Then we are willing to involve the relevant experts who try to help us to determine the amount for which the company or the relevant practice is willing to be compensated. And then they will use the projections. They will look at how the business ordinarily operates and the possible …… that has now been lost. That has to be determined. But there’s a good chance that you can succeed in such cases.

NOMPU SIZIBA: Things are getting heated in South Africa in terms of the Covid-19 infections. They’re rapidly rising, and the country’s peak is still some way away. What is the feeling about the country’s public and private laboratories being able to keep up with testing, and turning around the results in a timeous fashion as the testing increases? Do you think that there is sufficient capacity? And if there isn’t, I suppose this is where more mistakes could arise.

MTHOKOZISI MAPHUMULO: Yes. With the current budget constraints and all those things, it’s going to become problematic because, if you remember, it’s already been about two months where the …… will make delays in their reports, and all our citizens, or the residents in the South African context, rely heavily on the public health system. So there are obviously budget constraints, also the medical personnel, there’s also …… we cannot reasonably expect them to carry out their mandates to the utmost, well, to the point where they’ve not a chance to have these kinds of delays ……  It all goes about reasonableness ……  It’s going to be difficult going forward. Having said that, where are …… to meet and legally justifiable. There will definitely be cases of a message going forward for such delays and the misdiagnosis.

NOMPU SIZIBA: That was Mthokozisi Maphumulo, a litigation attorney at Adams & Adams.

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