Liability for Delays in Medical Treatment

It’s a story we hear repeatedly in South Africa. An ambulance arrives 10 hours after an emergency call is placed. A seriously injured or ill patient waits for half the day (or longer) in an overcrowded hospital emergency room, or a patient lies forgotten in a hospital ward, waiting for treatment.

Sometimes these delays have serious, even fatal, consequences.

In those cases, who is liable? At what point are resource shortages no longer an acceptable excuse?

Kirstie Haslam, Partner at DSC Attorneys says that excessively long treatment delays are an issue at clinics, in hospitals, and in ambulance transfers.

“It’s a problem throughout public health services, raising serious concerns about the quality and accessibility of primary healthcare in South Africa,” she says.

Delays at clinics

Clinics and district hospitals are underfunded and under-resourced.

Haslam says that a lack of medicines and equipment is exacerbated by a shortage of trained staff, especially trauma and emergency nurses.

“Surgical facilities and imaging equipment for trauma-related scopes, scans and X-rays are virtually non-existent, impacting a healthcare provider’s ability to accurately diagnose and treat patients,” she explains.

She adds that chaotic paper filing systems resulting in lost or missing medical files, and delays in treatment are inevitable – and avoidable.

Delays in hospitals

According to a recent research article, more than 80% of South Africans are forced to endure lengthy waiting periods at public hospitals.

Overcrowding, poor basic admin, and the lack or medical resources and equipment are key drivers of these delays.

Chronic staff shortages in hospital emergency units are lengthening response times, and leaving seriously ill and injured patients in the hands of inexperienced junior doctors.

Delays can have serious consequences, potentially leading to a worsening of conditions, protracted suffering and significant declines in health outcomes.

Delays in patient transfers

In many provinces, Haslam says that ambulance services are in such disarray authorities are unable to track ambulances and the time it takes to respond to emergencies, despite trackers being fitted to vehicles.

From a legal point of view, delays in diagnoses and mismanagement or negligence by anyone employed by a clinic, hospital or emergency services – be it administrative or medical in nature may be considered medical malpractice.

The question remains – who is to blame, and under what circumstances?

When do delays constitute medical negligence?     

Not all delays in treatment constitute medical negligence.

Haslam points out that it is only when a healthcare provider fails to meet the accepted standard of care, and that failure is the direct cause of injury or harm, that there may be grounds for a medical negligence claim.

“In other words, if the care provided fell below what a similarly qualified and competent professional would administer in the same circumstances, it may be considered medical negligence,” she says.

A delayed diagnosis, delay in treatment or failure to act can manifest as medical negligence.

For example, Haslam says that a doctor who misdiagnoses colon cancer for irritable bowel syndrome, fails to order the necessary blood tests and scope, resulting in delays in treatment and the condition worsening, is negligent.

“Similarly, a doctor would be deemed negligent if he or she failed to test thyroid function in a patient with sudden, unexplained weight gain, if that failure delayed the intake of hormone replacement medication that resulted in the patient succumbing to coronary heart disease.”

However, when a delay is reasonable or unavoidable, does not cause harm, and is not below the accepted standard of care, Haslam says that it does not constitute medical negligence.

Haslam cites legal cases involving delays in medical treatment:      

Loss of limb caused by negligence and 7-hour treatment delay

An initial misdiagnosis, inadequate examination and seven-hour delay in treatment resulted in a Gauteng man losing his right lower limb.

The patient, who twisted his knee in an argument, sought help at a local clinic and was transferred to hospital. Following a wait of almost two hours, he was examined by a medical student and sent for an X-ray that failed to identify the loss of blood to his foot.

An orthopaedic surgeon examined him seven hours later, and immediately consulted a vascular surgeon who operated in an attempt to save the leg.

In a judgement, the Johannesburg High Court found the hospital staffs’ failure to attend to the patient quickly amounted to negligence.

Delayed CT scan results in removal of a kidney

A man suffering from a gunshot wound was admitted to a district hospital for life-saving surgery. During the operation, a haematoma was noted around the left kidney.

The delay to perform a CT scan to further investigate the damage to the kidney resulted in infection and sepsis, and the eventual removal of his kidney.

After hearing evidence, the court found the district hospital liable for medical negligence due to avoidable treatment delay.

R576,000 in damages for newborn and mum  

In 2013, a baby born by Caesarean section suffered deep cuts to her arm. She was immediately moved to the neonatal ward where she was found hungry, crying and neglected the next day.

The incubator the baby was in was dysfunctional, she had not been fed and her wounds were left untreated.

Eventually, on the eighth day of the baby’s life, an operation was performed to suture the wounds, which became infected, took months to heal and left obvious scars.

Following the C-section, and while the mother was still in hospital, her abdominal wound began to bleed. Nine days lapsed before the wound was cleaned and closed.

The High Court found the Gauteng MEC for Health negligent, and liable for a sum of R576,000 in respect of general damages, future medical expenses, and pain and suffering.

What to do if you have a claim 

Dealing with the emotional and physical repercussions of medical negligence is often painful and exhausting.Haslam says that having the time, energy and know-how to prove negligence, and substantiate a claim, is beyond the capabilities of the ordinary South African.That’s why she stresses that it’s essential to contact a personal injury law firm, that specialise in medical negligence cases arising from delays in treatment, and have an excellent track record in this area.