Changes to the Road Accident Fund legislation may see more lawyers turning their attention to medical negligence claims instead, predicts Michael de Broglio.
The Road Accident Fund Amendment Act, which was the subject of a failed high court challenge by the Law Society of South Africa in early 2010, will make it more difficult for accident victims to claim compensation from the Fund – and more difficult for law firms specialising in third-party claims to do business.
Only victims who suffer “serious” injuries such as brain damage and amputations as a result of car crashes will be able to claim general damages under the new law, meaning that a door is effectively closed on those sustaining injuries such as whiplash, which can be debilitating but is deemed “less serious”.
Furthermore, claims for past and future loss of income as a result of road accidents will be capped at R160 000 per year, regardless of the person’s profession. Victims will also lose their common-law right to compensation from the person who caused the accident or their insurance company, for damages not covered by the RAF.
“I believe that with the door gradually closing on most Road Accident Fund claims, we are going to see more and more attorneys turning their attention to medical negligence cases and a huge escalation in these matters,” says De Broglio, who heads up Johannesburg law firm de Broglio Inc.
“In fact, we have already noticed a growing number of attorneys advertising their services for medical negligence. It would also not surprise me if, as a result of the August 2010 public service strike among healthcare workers, we start seeing an increase in claims arising from incompetence or neglect at government hospitals.”
One such matter that de Broglio Inc is currently handling is that ofDavid Whelan*, who ended up with one leg amputated below the knee after being admitted to Sebokeng Hospital in August 2005 for a simple ankle fracture.
He is suing the Gauteng MEC for Health for medical negligence after he fell off a ladder and was taken to the hospital. There, he underwent a routine operation – but it was later discovered that part of the drain had been left behind in his leg. The resulting infection led a tragic comedy of errors that ultimately led to the amputation of half his leg.
The case is due to be finalised in court in 2011.
*Names have been changed to protect client confidentiality
