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Law24 Understand your Legal Issue Law for the Layman Personal and Family Medical negligence law The summons, plea and proving liability and quantum

The summons, plea and proving liability and quantum

The terms explained

The summons is a document which is served on the negligent party by a Sheriff. As stated above, the Particulars of

Claim, which is annexed to the Summons, contains the allegations and grounds on which the negligent act or omission is

based and gives details of the damages suffered as a result of the negligence (heads ofdamages).

The Summons is usually responded to by an intention to defend followed by the defendants Plea which is a response to

the summons. The defendant will typically deny all allegations ofnegligence in the Plea. A trial date is then applied for

where the plaintiff will have the responsibility (onus of proof) of proving the alleged negligence.

The duration of time between applying for a trial date and the date of trial varies in the different jurisdictions. In the

North and South Gauteng High Courts in Pretoria and Johannesburg respectively, this period is presently between 18 24 months. In KwaZulu-Natal it is much longer, up to 4 years.

If one takes into consideration the time required to collect the medical records, obtain a medical opinion, draft and issue

the summons, wait for the defendants Plea, apply for a trial date and go to trial, one can see why a medical negligence

claim is a long process. One can expect a minimum of 3 4 years from the date of instituting a claim against a medical

practitioner/hospital to date of finalisation of the claim.

When preparing for trial, the plaintiff will have to prepare his/her evidence on:

liability proving the negligence of the defendant, and

quantum how much should be paid by the defendant in compensation for the damages suffered.

The plaintiff always has the onus of proving, on a balance of probabilities, that the defendant is guilty of negligent

conduct and that this negligent conduct caused the plaintiff to suffer damages. Where a defendant raises a special

defence such as consent, contributory negligence (where it is a lleged that the plaintiff contributed in some way to the

damage suffered) or prescription, the onus proof will then be on the defendant.

If the proof ofliability is disputed between the parties, the parties can agree to only address the issue of proving liabilityat the first court hearing and if the plaintiff is successful to then return on a later date to prove how much compensation

the defendant is liable to pay to the plaintiff i.e. the quantum of the claim.

After negligence is established, what then? How does the claimant get compensated?

The compensation claimed is divided into what are called: heads ofdamages. The various heads ofdamages will be

addressed in detail, they are:

Past Hospital and Medical Expenses.

Past Loss of Earnings.

Future Hospital, Medical and Supplementary Expenses.

Future Loss of Earnings and Interference with Earning Capacity.

General Damages, Loss of Amenities of Life and Disfigurement.

In the event of death of a breadwinner, the funeral expenses as well as loss of support for dependants can be

claimed.

There will be an amount claimed under each of the heads ofdamages. The amounts are not cast in stone and can be

changed or amended at any time before judgment or settlement.

The damages claimed is the amount of money it would take to place the claimant in the position that s/he would have

been in had the negligent act/omission not occurred and caused the plaintiff to suffer damages:

Past Hospital and Medical Expenses

These are all the hospital and medical expenses incurred from the date on which the negligent act/omission occurred

until the date that the claimant is compensated. It is therefore very important that a claimant keeps all the accounts

from the hospital, doctors, physiotherapists, psychologists, pharmacies etc. and submits these to their attorney to add to

the claim.

It is important to remember that a medical aid does have the right to be reimbursed for the amounts that they have

paid in respect of the treatment administered to the plaintiff as a result of the negligent act/omission. It is a contractual

obligation between the plaintiff and his/her medical aid that the medical aid is reimbursed upon successful finalisation of

claim against the negligent party. The medical aid will usually send the plaintiff an undertaking that they must sign

wherein the plaintiff undertakes to reimburse the medical a id upon successful finalisation of the claim. The medical aid

has the right to reverse payment that they have made if the undertaking is not signed.

Past Loss of Earnings

The loss or decrease in earnings that have resulted from the negligent incident/treatment/procedure is claimed under

this head of damage. This includes all loss of earnings from the date of the incident to the date that the claimant is

compensated. The plaintiff is usually requested to furnish his/her salary slips and tax documentation for a period (usually

3 years) prior to the date of the incident/treatment/procedure until the present date. The difference in earnings is then

what is claimed.

Future Hospital, Medical and Supplementary Expenses

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For this claim, the expertise of additional medico-legal experts is needed. The plaintiff will be sent to different experts

depending on the type of damage/injury that s/he has suffered as a result of the negligent act/omission. For example, if

the injury suffered involves the brain, a neurosurgeon or neurologist will be consulted along with other experts such as a

psychiatrist, educational psychologist, clinical psychologist, occupational therapist etc. If an orthopaedic injury was

suffered or a heart defect, then the corresponding expert will be consulted. The experts do not treat the plaintiff in any

way; they assess the damages suffered and write a report thereon.

One must keep in mind that the defendant/s will also have the right to send the plaintiff to their own experts. There is

therefore a chance that the plaintiff will be sent to two experts in every field.

In the reports by the respective experts, the treatment suggested in the future will be given, along with the prices of the

treatment at present and the amount of time off work for this future treatment. This is what makes up the claim for

future hospital and medical expenses.

The other expenses referred to above include travelling expenses, equipment, renovations etc. If for example, theplaintiff has been rendered paraplegic, the other expenses will include a wheelchair, house renovations to include wider

doors and lower surfaces, fitted rails and ramps etc.

When all the expert reports have been received, the figures are sent to an actuary to calculate what the costs of the

procedures/treatments will be in the future or when the treatment is anticipated. The figures are then amended in the

Summons to bring it in line with the medico-legal reports from the various experts.

Future Loss of Earnings and Interference with Earning Capacity

This too is based on the information obtained in the above mentioned medico-legal reports. An industrial psychologists

report also becomes important here. S/he will have to take into account where the plaintiff stands in his/her career at

present and what his/her likely progression would have been had the negligent act/omission not occurred. The difference

here is what makes up this claim. These figures are also sent to an actuary for the same reasons as stated before.

The employer that the plaintiff was working for at the time of the negligent act/omission may be consulted by the

experts and attorneys in order to obtain relevant information about the plaintiff such as: the plaintiffs abilities,

promotional prospects, retirement age, skills needed for the job etc.

This head ofdamages also takes into account how much time off work the plaintiff will need to attend medicaltreatment.

General Damages

This head of damage incorporates the compensation for pain and suffering, loss of amenities of life, disfigurement, loss

of life expectancy and emotional shock. General damages are what we call a non pecuniary/non patrimonial (not

financial) damages. But what amount of money can compensate the above? There is no expert who can put a value to

these losses. The amounts awarded for general damages lies within the discretion of our very conservative courts. The

amount claimed is based on what has been awarded by the courts in previous cases for similar injury/insults, taking the

age of the aggrieved person into account. There are actuarial calculations done annually which bring the past awards

made by the courts for general damages, up to date.

Certain aspects that influence the amount claimed for general damages are: the type of pain the plaintiff went/is going

through/will go through; whether further surgery can be expected, whether the plaintiff has debilitating scarring, is

unable to fend for him/herself and has a decreased life expectancy etc.

Loss of Support

If the breadwinner dies as a result of negligent conduct by a medical practitioner/hospital, loss of support is claimed onbehalf of his/her dependants. Loss of support is worked out by using an actuarial ratio of two parts to each parent and

one part to each child. The deceaseds income at date ofdeath will therefore be divided as above, and these figures

given to an actuary to calculate what the loss of support is for each dependant, taking inflationary increases etc. into

account. The dependants will be compensated up to the age when they can be expected to start work ing for themselves

or when the breadwinner was suppose to retire, which ever comes first.

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