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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 Related Items
No related content could be found at this time. 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 of damages). 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 of negligence 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 alleged 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 of liability is disputed between the parties, the parties can agree to only address the issue of proving liability at 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 of damages. The various heads of damages 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 of damages. 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 aid 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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Law24.com - South Africa - The summons, plea and proving liabil... http://www.law24.com/index.php?option=com_fastcontent&view=...

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, the plaintiff 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 of damages also takes into account how much time off work the plaintiff will need to attend medical treatment. 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 on behalf 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 of death 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 working for themselves or when the breadwinner was suppose to retire, which ever comes first.

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