Authored by Deniro Pillay.
In July 2026, the High Court upheld a doctor’s defence of prescription against his former patient’s medical malpractice claim.
On 5 September 2018, the patient, who was diagnosed with colon cancer, underwent the surgical removal of a cancerous tumour performed by the doctor, a general surgeon. On 13 September 2018, the patient underwent another related surgical procedure performed by the doctor.
On 2 September 2020, the patient was examined by a specialist urologist for complaints of, amongst other complaints, decreased libido since the 2018 surgeries. On 15 October 2022 and 26 October 2022, he was examined by the same urologist for the same medical complaints.
On 3 September 2023, the patient consulted with another specialist urologist for the same medical complaints.
On 23 May 2024, the patient consulted with his lawyers after which he instituted a court action against the doctor for a claim based on medical malpractice in respect of the surgeries performed in 2018 and the alleged consequent medical complaints.
The doctor raised the defence of prescription. He argued that the patient’s complaints are natural consequences of the 2018 surgeries, which the patient was made aware of by him before the first surgery. The doctor used his patient clinical notes, which indicated that he informed the patient of the medical consequences, to support his argument. Alternatively, the doctor argued that the patient became aware of the facts giving raise to his alleged claim in June 2020 when he was examined by the urologist. In the circumstances, the patient’s claim prescribed before the summons was served in May 2024.
The patient denied that he was made aware of the medical consequences of the 2018 surgeries as alleged by the doctor. The patient alleged that he had no knowledge of the findings of the urologist after the examination on 2 September 2020. He argued that he became aware of, or could reasonably become aware of, the facts giving raise to his claim against the doctor in May 2024 after he consulted with his lawyers. In the circumstances, his claim did not prescribe before the service of summons.
With reference to the Prescription Act, 1969, the court noted that the patient’s claim prescribed 3 years from the date he became aware of the identity of the doctor and the facts from which his claim arises, provided that he would be deemed to have such knowledge if he could have acquired it by exercising reasonable care.
The court accepted the doctor’s argument that he informed the patient of the medical consequences of the 2018 surgeries as supported by his clinical notes. The court noted that it was unlikely that the doctor made the recordings in his clinical notes but did not inform the patient of the medical consequences. As a result, the court decided that the patient was aware of the minimum facts necessary to institute the court action in 2018 when he knew who performed the surgery and the negative medical consequences of the surgery. It was improbable that the patient would not have been made aware of the findings of the urologist after the assessment on 2 September 2020. In the circumstances, the court upheld the doctor’s prescription defence and dismissed the patient’s claim.
This judgment illustrates the importance of doctors making accurate patient clinical notes and retaining the notes, which may become evidence in support of defending a claim many years after the medical treatment had been rendered to a patient.
Nkosi v Gidaga (2443-2024) [2026] ZAMPMBHC 73 (15 July 2026)