Time heals all wounds – the law of Prescription in medical negligence

February 1st, 2017
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By Lekwalo Jones Ditsela

The purpose of the Prescription Act 68 of 1969 (the Act) is to bring about certainty and finality to disputes. The purpose of the Act is also to penalise creditors who do not take reasonable steps prescribed by the Act. Section 11(d) of the Act provides that a debt shall prescribe within three years from the date that the debt arose.

Section 12(1), (2) and 3 of the Act provides that:

‘(1) Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due.

(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.’

Background

In a recent Constitutional Court (CC) judgment delivered by Zondo J on 30 March 2016 in the matter of Links v Department of Health, Northern [Cape] Province 2016 (4) SA 414 (CC), the CC unanimously upheld an appeal against a judgment and order of the full Bench of the Northern Cape Division of the High Court in Kimberley (the full Bench). The full Bench upheld an earlier judgment by Mamosebo AJ dismissing the applicant’s (Links) claim with costs on the basis that his claim against the respondent (the MEC) had become prescribed.

Links dislocated his left thumb on 26 June 2006 and went to Kimberley Hospital (the Hospital) for treatment. His left thumb was amputated during an operation on 5 July 2006. He claimed he was never told of the decision to amputate nor the reason for the amputation. He was discharged at the end of August 2006. Links served summons on 6 August 2009. The MEC raised a plea of prescription on the basis that the summons was served after the lapse of three years from 5 July 2006 when his thumb was amputated.

The CC granted leave to appeal on the basis that the matter, inter alia, was about the correct interpretation of s 12(3). In particular, what are the ‘facts’ that the creditor must know before the debt can be said to be due, and before prescription can start running?

In their interpretation of s 12(3) and evaluation of the evidence before the High Court, the CC found that the MEC said nothing that would bring a defence within the proviso in s 12(3) (namely, ‘Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care’).

The CC further held that the MEC did not aver that Links had knowledge of the facts that caused his problem. Links did aver in the High Court that he did not know before the end of August 2006 the reason for his condition or the cause of his condition. This averment related to both the issue of negligence and the factual element of causation. The MEC did not deny this averment, and it was found that Links did not know what caused his condition as at 5 August 2006. It could, therefore, not be said that the debt was due before 5 August 2006 (see para 46).

The implications of the judgment thus far was that a party needed to allege in pleadings and adduce evidence in order to succeed with a defence based on the proviso provided for in s 12(3). Thus, the judgment had – at this point – not changed the manner in which a creditor may acquire knowledge of the ‘facts’ from which a claim arises, which was in line with previous judgments.

In previous judgments, it was accepted that a creditor may acquire knowledge of the ‘facts’ by merely asking one question to the debtor, who would then provide the creditor with such ‘facts’. If the debtor refuses, then it was accepted that creditor did not acquire knowledge of the ‘facts’. If the creditor does not make any inquiries, then he or she would be deemed to have acquired knowledge of the ‘facts’. It was never required that the creditor must obtain an expert medical opinion to acquire knowledge of the ‘facts’.

However, the CC’s judgment went further and stated at paras 47 to 49 that:

‘[47] The opinion given by Dr Reyneke was that the amputation of the applicant’s thumb and loss of function of the left hand was –

“most probably due to the plaster of Paris that was too tight … and not removed soon enough . . . when ischemia occurred”.

That opinion was given years after the events in issue. Without advice at the time from a professional or expert in the medical profession, the applicant could not have known what had caused his condition. It seems to me that it would be unrealistic for the law to expect a litigant who has no knowledge of medicine to have knowledge of what caused his condition without having first had an opportunity of consulting a relevant medical professional or specialist for advice. That in turn requires that the litigant is in possession of sufficient facts to cause a reasonable person to suspect that something has gone wrong and to seek advice.

[48] Earlier I rejected the applicant’s version that, prior to his discharge from hospital, he had no knowledge that his thumb had been amputated. However, even if he had known, as we find that he had known that he had lost his thumb, he still didn’t know what had caused the need for the amputation.

[49] The applicant was in hospital between 4 July 2006 and the end of August 2006. Therefore, realistically, before the end of August 2006 he could not have had access to independent medical professionals. Accordingly, he could not have had knowledge of all the material facts he needed to have before he could institute legal proceedings. Prescription could, therefore, not have begun running before 5 August 2006. Therefore, on this basis too, the respondent failed to show that the applicant had knowledge of all the material facts on or before 5 August 2006. Accordingly, the applicant’s claim did not prescribe.’

Conclusion

The implications of paras 47 to 49 is that in certain cases involving medical negligence matters, a claimant is entitled to first obtain independent medical advice in order for prescription to commence running in circumstances where the claimant is found not to have acquired knowledge of the ‘facts’. In the absence of such independent medical advice, a claimant cannot be deemed to have had knowledge of the facts from which a debt arises.

The judgment has not changed the previous position that a creditor must exercise reasonable care to acquire knowledge of the facts, and will be deemed to have such knowledge if he or she could have acquired it by exercising reasonable care. However, what the judgment has changed is that such ‘facts’ in medical negligence cases may in certain instances require the assistance of an independent medical expert.

The implications of the judgment is not that the operation of s 12(3) will now be dependent on a creditor’s subjective evaluation of the presence or absence of knowledge or minimum facts sufficient for institution of a claim. The test for reasonableness has thus not shifted from an objective test to a subjective one.

The previous judgments on the application of s 12(3), are therefore, still applicable. The Links judgment has not changed the application of those previous judgments. It is still the position that a creditor cannot by his or her supine inaction postpone the commencement of prescription.

However, the running of prescription in certain medical negligence cases may now involve obtaining medical advice from an expert on the ‘facts’ from which a claim arises insofar as a plaintiff may not have direct or constructive knowledge from other sources. These ‘facts’ should not be confused with the legal conclusions as per the findings in Truter and Another v Deysel 2006 (4) SA 168 (SCA).

In the Truter matter the court found that the Act requires knowledge only of material facts from which the debt arises for the prescription period to begin running. It does not require knowledge of the legal conclusions (ie, that the known facts constitute negligence). This position remains unchanged. The time periods as to when the creditor must obtain knowledge of such ‘facts’, assisted by a medical expert is still subject to an objective test. The creditor must still exercise reasonable care in terms of s 12(3).

The challenge posed by the judgment will be to determine what would be a reasonable time period from when a potential claimant is discharged from hospital or medical facility to obtaining the medical advice of an expert. Some may ask, what if the claimant does not appoint the medical expert within three years from date of discharge or what if the medical expert’s opinion is furnished more than three years from the date of discharge of a claimant.

These are probably some of the questions that the courts will have to deal with in subsequent cases in deciding the issue of reasonable care imposed by s 12(3). The courts would probably have to consider each case on its own merits in determining when prescription commenced running in accordance with the objective test of reasonable care.

The judgment will probably also have implications for other professions wherein a creditor may require the assistance of an expert to acquire knowledge of the ‘facts’ from which a claim arises.

  • See p 28 and law reports ‘Prescription’ 2016 (Oct) DR 42.

Lekwalo Jones Ditsela LLB (UL) is an attorney at Gildenhuys Malatji Inc in Pretoria.

This article was first published in De Rebus in 2017 (Jan/Feb) DR 30.