Mthokozisi Maphumulo | Partner | Litigation Attorney | Insurance & Financial Sector Laws | Adams and Adams | mail me |
On 10 April 2016, the plaintiff was admitted to a private hospital complaining of pain in her left knee. Unbeknown to anyone at the time, the plaintiff had suffered a ruptured aneurysm in her popliteal artery. The rupture resulted in limited blood flow to her lower left leg.
The rupture went untreated for a critical period. Consequently, the condition of the plaintiff’s leg deteriorated to such an extent that doctors had to amputate it above the knee on 19 April 2016.
On 14 August 2017, the plaintiff instituted an action for damages arising from the allegedly negligent treatment she received at the hospital. She initially brought the suit against the hospital and three of the plaintiff’s treating physicians (the First to Fourth Defendants).
Events as they unfold
It became apparent from their pleas that none of the original defendants accepted direct responsibility for the treatment the plaintiff received in the hospital’s accident and emergency department. They said the fifth defendant, an incorporated medical practice, ran the department.
On 21 June 2018, the Plaintiff sued the fifth defendant. The fifth defendant pleaded on 5 December 2018.
In its plea, the fifth defendant identified the seventh defendant as its employee. It stated that he had treated the plaintiff “in the course and scope of his duties”. It also identified the sixth defendant as a locum physician who was not in its employ.
The plaintiff’s legal representatives made what they described as a “strategic decision” not to sue the seventh defendant personally. They reasoned that the fifth defendant could be held vicariously liable for any negligence proved against him. However, they did sue the sixth defendant in her personal capacity on 31 August 2020. The parties acknowledged that she was not in the fifth defendant’s employ.
At around the same time, the fifth defendant amended its plea. It withdrew its admission that the seventh defendant was its employee. The fifth defendant now pleaded that both the sixth and seventh defendants were independent contractors over whom it had no control.
Despite this material amendment, the plaintiff’s legal representatives did not act upon it until June 2022. They finally appreciated the need to sue the seventh defendant in his personal capacity.
The plaintiff served the summons against the seventh defendant on 22 June 2022. The seventh defendant then raised a special plea of prescription.
Issues
The central issue the court had to determine was whether the Plaintiff’s claim against the seventh defendant had prescribed. The Prescription Act provides that an ordinary debt prescribes three years after it falls due.
Section 12(3) of the Act provides that a debt falls due when the creditor has knowledge of the debtor’s identity and the facts giving rise to the debt. The court therefore had to determine when the plaintiff first became aware of the seventh defendant’s identity. It also had to determine when she became aware of his role in the chain of events leading to her injury.
Complications – the peculiarity of prescription in this matter
What made the prescription issue peculiar in this matter was the manner in which the seventh defendant pleaded his special plea.
In the court’s view, the case turned on two straightforward, common-cause facts. First, the plaintiff became aware of the seventh defendant’s role in her treatment on 11 December 2018, when the fifth defendant’s plea was served.
Second, the plaintiff did not institute proceedings against the seventh defendant until 22 June 2022. That was some four and a half years later. However, the seventh defendant’s legal representatives overcomplicated the matter.
The seventh defendant persisted with the argument that the plaintiff should be deemed to have been aware of his identity as early as August 2017. That was when the plaintiff discovered the hospital records.
Those records included a form signed by the seventh defendant. However, the court noted that his signature was illegible. The form did not otherwise identify him. The seventh defendant’s counsel argued that it was unreasonable for the plaintiff to wait until the fifth defendant identified the seventh defendant in its plea.
The court expressed doubt about this more ambitious argument. It observed that the plaintiff was investigating a complex chain of medical causation.
The hospital had sought to shift liability onto its separately incorporated constituent practices. Those practices, in turn, sought to shift liability onto physicians working for them as independent contractors.
In those circumstances, the court held that the Plaintiff could not be criticised for seeking relief against the hospital rather than a treating physician. At the time the plaintiff received the medical records, the physician was identified by no more than “his scrawled signature on a single sheet of paper”.
This aspect of the judgment highlights why careful strategic litigation decisions matter when multiple potential defendants emerge during medical negligence proceedings.
Court’s determination and reasons
The court upheld the special plea of prescription and dismissed the plaintiff’s claim against the seventh defendant.
The court’s reasoning was as follows:
- The plaintiff plainly became aware of the seventh defendant’s identity and his role in her treatment when the fifth defendant named him in its plea dated 5 December 2018.
- The fifth defendant served that plea on the Plaintiff’s legal representatives on 11 December 2018.
- The three-year prescriptive period therefore expired on 12 December 2021.
Since the plaintiff only served the summons against the seventh defendant on 22 June 2022, the claim had prescribed.
The court rejected the Plaintiff’s reliance on section 12(2) of the Act. The plaintiff argued that the fifth defendant had “wilfully prevented” her from discovering her cause of action. The plaintiff based this argument on the fifth defendant’s initial plea that the seventh defendant was its employee.
The court found this argument misguided. It reasoned that the plaintiff’s strategic decision not to sue the seventh defendant personally did not mean that the Plaintiff was prevented from suing him in his own right.
The plaintiff’s representatives believed they could hold the fifth defendant vicariously liable. However, that belief did not prevent them from instituting proceedings against the seventh defendant personally. The court further reasoned that the very decision to pursue vicarious liability against the fifth defendant entailed a proposition.
The plaintiff’s representatives already knew about the seventh defendant and his potential role in causing the plaintiff’s injury. Accordingly, the court did not accept that the fifth defendant’s initial position prevented the plaintiff from discovering her cause of action.
The judgment therefore demonstrates the importance of making informed strategic litigation decisions once a potential defendant’s identity becomes known.
In conclusion
This judgment offers important guidance in the field of medical negligence litigation on the operation of prescription. It is particularly relevant to knowledge of a debtor’s identity under section 12(3) of the Act.
The judgment underscores that the prescriptive period begins to run from the date the plaintiff acquires knowledge of the debtor’s identity and the facts giving rise to the debt. It does not begin when a plaintiff makes a strategic decision to act on that knowledge.
Practitioners in medical negligence matters should take careful note. When the identity of a potential defendant becomes known through the pleadings of a co-defendant, the clock starts immediately.
This applies regardless of whether the plaintiff has elected to pursue a vicarious liability strategy against another party. The case therefore reinforces the need for careful strategic litigation decisions throughout the life of a claim. A decision to pursue one potential defendant does not necessarily preserve a claim against another.
For practitioners, the lesson is clear. Once a potential defendant becomes identifiable, legal representatives must consider prescription immediately and assess the available litigation strategy without delay.
