When does prescription begin to run? We see that subject to the provisions of subsections (2), (3) and (4) of section 12 of the 1969 Prescription Act, extinctive prescription in respect of a medical negligence right of action begins to run ‘as soon as the debt is due’.
According to John Saner SC, it is so trite that no authority is needed to underpin the statement that a claim based on medical negligence, being a delictual claim, is a ‘debt’ for the purposes of section 12 of the 1969 Prescription Act.
So, when is the debt in a medical negligence claim ‘due’ – that is, when does prescription begin to run in respect of such a claim? Section 12(3) of the 1969 Prescription Act provides that:
‘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’.
In the vast majority of cases where the claim is for damages caused by the negligence of a doctor or other health provider prescription will start to run from the date of the botched operation or misdiagnosis or negligent birth or delivery in question – that is to say, whenever it is obvious that damage (injury) has occurred. But this is not always the case. Difficulties arise when the potential claimant is aware that he or she has been injured but does not know whether the doctor or healthcare provider was negligent or whether the negligence caused the injury or damage.
Compiled by Jaques Bloem