During the first wave of infections in South Africa, there were several allegations of negligence in various institutions leading to “mass infections” – for example, amongst others, the Saint Augustine Private Hospital incident in KwaZulu-Natal, Durban. In addition, there were reported incidents of delayed Covid-19 tests’ results and misdiagnoses which could potentially lead to fierce litigation. For these reasons, it was expected that there will be plethora of COVID-19-linked medical negligence/malpractice claims being brought forward. To date, this has not been the case. This is despite apparent instances of potential medical malpractice claims – there were videos and pictures trending on various social media platforms where patients were seen lying and sleeping on the floor; crying for help without assistance; dying whilst waiting at the long ques at the hospitals; etc. The expectations were also based on the fact that, generally, in South Africa, medical negligence/malpractice cases are rife as our courts deal with hundreds of such cases daily. It is therefore necessary to zoom into the possible factors that may be discouraging potential claimants from claiming, where circumstances permitted.
There are several possible dissuading factors which include the following:
Medical negligence/malpractice legal matters naturally become litigious, mostly, unnecessarily so. Litigation involves exorbitant costs and, as many people have either lost jobs/business, they are likely to spend sparingly particularly with all the ongoing financial/economic turmoil. Ordinarily, natural people do not have the financial muscle to robustly litigate. Also, whilst some law firms take such legal instructions on a contingency basis (“no win no fee basis”), most firms, like other businesses, have not been spared the financial adversities brought by the pandemic. Thus, financial restrictions may be regarded as one dissuading factor.
LEGAL EXPERTS’ RELUCTANCE:
There are many reasons why most legal experts may be reluctant to take such cases. One has been mentioned above i.e financial constraints resulting in the inability to finance lengthy and costly legal cases. Secondly, lawyers do not have a direct point of reference in COVID-19 linked medical negligence/malpractice cases as there has not been many (if any) COVID-19-linked medical negligence/malpractice cases. This means that if a lawyer has a potential case of this nature, s/he does not have any direct legal precedents or settled legal principles to utilise in assessing and evaluating the chances of success. As a consequence, lawyers are hamstrung. This suggests that should there be one successful case of this nature, we may then see exponential growth in these cases. Moreover, lawyers may be hesitant to litigate on such matters as the chances of success may be slim – although the peculiar facts of each case will dictate chances of success. There may be a reasonable belief that most COVID-19 directly linked court cases will not have a high rate of success. This is because the courts may be inclined to consider factors that may lead to leniency being shown to health institutions or the various departments of health. These factors include the fact that medical personnel have been operating under severe pressure, stress, fear and not all is known about this virus, etc.
INABILITY TO ACCESS RELEVANT DOCUMENTATION AND DETAILS:
COVID-19 restrictions and protocols have, among other things, deprived people of their freedom of movement. Regrettably, people are not able to visit their loved ones during their hospitalisation. The effect of this is that the potential claimants are then unable to extensively delineate all the relevant facts which may be necessary to prove negligence/malpractice on the part of a hospital. Thus, if a COVID-19 patient dies in hospital and the dependants want to sue for loss of support, they have little (maybe hearsay) to no concrete evidence necessary to demonstrate negligence. Further, the restrictions, especially in hospitals, may have made it difficult for potential claimants to access hospital records and the pertinent clinical notes. In medical negligence/malpractice, these are the most crucial documents in proving negligence/malpractice. In their absence, it is almost impossible to institute legal action. Furthermore, there is a high probability that in most health institutions, the record-keeping systems are in bad state. This is usually the case with public hospitals and, with the severe stress and pressure under which medical personnel have been working, the systems may have crumbled and there may have been no proper filing of records.
These are some of the many other possible dissuading factors insofar as COVID-19-linked medical negligence/malpractice cases are concerned. Whilst there has not been many (if any) court cases of this nature, there is still a chance that one successful case may trigger a plethora of these cases. While there is no settled direct legal principles relating to COVID-19-linked medical negligence/malpractice cases (at least in our South African jurisprudence), claimants and lawyers alike should not be discouraged from instituting legal action where circumstances permit. Failure to do may lead to a greater miscarriage of justice and lawyers would have failed in their crucial duties which is to facilitate and bring justice to the most vulnerable.