Quick answer
Ask questions that test each element rather than asking whether the outcome “looks negligent.” The consultation should identify the act or omission in issue, the reasonable professional response at the time, the evidence for a departure, whether that departure caused additional harm, who may be legally responsible, and which losses can be supported.
How to use this guide
Also ask for a separate deadline and forum map. A civil damages claim, HPCSA complaint, Health Ombud referral and internal hospital complaint serve different purposes and do not automatically preserve one another.
What exactly is the alleged act or omission?
Ask the lawyer to state the concern as a testable proposition: delay in reviewing a result, failure to monitor a recorded sign, performance of a procedure, medication administration, discharge decision, lack of referral or information and consent. Which practitioner or facility made the decision, what information was available then, and what alternative action is said to have been required?
Avoid hindsight. A poor outcome does not establish that the earlier decision was unreasonable. Ask which contemporaneous record supports the allegation and which record may support the provider's explanation.
What professional standard applies?
Ask which medical or nursing discipline is needed to assess the standard of care and whether the expert must match the setting and time. A district hospital, specialist unit and emergency service may have different available resources, but resource context is evidence rather than an automatic defence.
Louw v Patel restates the objective negligence enquiry and the importance of expert evidence about the skill and diligence ordinarily exercised in the relevant branch. It also confirms that courts evaluate whether expert reasoning is logical; they do not outsource the final decision to an expert. Ask what facts the expert needs and what opinion the expert cannot responsibly give yet.
Can breach be separated from causation?
Ask two different questions: “What may have fallen below the standard?” and “What additional harm probably followed from that departure?” Treatment can be substandard without causing the eventual injury, while an unavoidable complication can cause grave harm without negligent care.
Request a causal timeline showing the patient's baseline, disease process, alleged departure, biological mechanism, later intervention and counterfactual outcome if reasonable care had been provided. Ask whether factual causation, legal causation or both are contested. A temporal sequence alone—treatment followed by injury—does not answer the causal inquiry.
What harm and damages can be proved?
Ask what injury is additional to the condition that required treatment. Which later reports support permanence, future treatment, care, loss of earnings or reduced function? What evidence distinguishes pre-existing disability from the claimed consequence?
Obtain a plan for quantification only after the causal issues are identified. Clinical experts, occupational therapists, actuaries and other specialists answer different questions. Ask when each report becomes useful and what assumptions might make it premature.
Who is the correct defendant?
Ask who employed the relevant staff, operated the facility, contracted with the practitioner, controlled the service and held the records. Do not assume the surgeon, hospital, provincial department and laboratory share liability merely because they appear in the same chronology.
Where public care is involved, ask whether the correct provincial MEC or another organ of state must receive notice under Act 40. Confirm the service method, known facts to include and whether late-notice condonation needs consideration. For private care, ask whether a practice entity, hospital company or individual practitioner is implicated by the alleged conduct.
Which date and notice rules require attention?
Ask for a written prescription analysis under the Prescription Act, identifying the possible debt-due date, knowledge of the debtor, knowledge of the material facts, deemed knowledge, any impediment and any interruption. “Three years from discharge” should not be accepted as a universal answer.
If Act 40 applies, its six-month notice question must have a separate calculation. Ask whether any existing letter actually qualifies and whether it reached the legally correct recipient. A request for records or complaint form should not be treated as notice without reviewing content and service.
Which records are decisive and which are merely useful?
Ask for the smallest first record set: full clinical notes, nursing observations, medication chart, procedure and anaesthetic records, diagnostics, consent material and later corrective care. Which missing entry prevents a screening opinion? Does the expert need underlying images or only the report at first?
Ask how records will be requested, indexed and preserved. The National Health Act protects confidential health information and requires record controls. Confirm authority before obtaining or sending another person's information, and ask what access route applies if the provider withholds a category.
Should a complaint be filed as well?
Ask what outcome the patient wants from a complaint: explanation, practitioner discipline, facility improvement, apology or investigation. The HPCSA handles alleged unprofessional conduct by practitioners registered under the Health Professions Act. The Health Ombud considers health-establishment complaints about norms and standards.
Neither forum awards civil damages in the same way as a court claim, and neither finding automatically decides delictual liability. Ask whether filing a complaint now could help preserve facts, create inconsistent statements, duplicate another investigation or consume time needed for legal protection.
What will experts and the lawyer cost?
Ask for staged scope. Stage one might cover records, chronology, defendant and deadline screening. Stage two might obtain a preliminary liability opinion. Later stages can address full reports, damages, pleadings or trial preparation if justified.
Request the fee basis, disbursements, expert costs, funding arrangement, termination rights, adverse-cost risk where relevant and the decisions that trigger new expenditure. Ask who owns contact with experts and how independence will be protected. An expert is not hired to guarantee the client's preferred answer.
What should happen next?
End with a written task list naming the person responsible for ongoing care, record requests, deadline calculation, Act 40 review, expert specialty, complaint decision, loss documents and follow-up date. Identify which conclusions are provisional and what evidence could change them.
The right consultation outcome is a defensible investigation plan. A prediction of success before the records and expert issues are tested is not a substitute for that plan.
Important limitation
These questions provide a consultation framework, not a finding on breach, causation, damages, prescription, state notice, expert sufficiency or complaint jurisdiction.
FAQs
What question separates a bad outcome from a possible breach?
Ask what a reasonably competent practitioner in the relevant discipline would probably have done in the same circumstances and which record facts support or contradict that comparison.
How do I ask which medical expert is needed?
Ask which specialty matches the disputed decision, what precise question the expert must answer, whether the complete factual record is available and whether an initial screening opinion is proportionate.
What should I ask about medical causation?
Ask what mechanism is said to connect the alleged departure to the injury, which alternative causes must be tested and what expert or factual evidence could confirm or disprove that link.
Which cost and scope questions belong in the first consultation?
Ask what the first investigation stage includes, which work is excluded, the fee basis, likely disbursements, expert costs, termination rights and what evidence would justify moving to the next stage.
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Legal note
This article is general legal information for South African readers. It is not legal advice. Speak to a qualified legal professional about your specific facts before taking action.