The recent judgment in D.E.M obo K.M v Member of the Executive Council for Health, Gauteng Province [2026] ZAGPJHC 874 highlights another important consideration of when prescription begins to run in a medical negligence claim.
Of particular interest is the Court’s finding that a claimant who had already consulted attorneys and served a detailed notice of intended legal proceedings alleging negligent care could nevertheless lack the material knowledge required for prescription to begin running. In reaching that conclusion, the Court placed considerable weight on the complexity of the medical issues and the need for appropriate expert evidence.
Background
The applicant’s child suffered birth asphyxia in 2013. In 2014, she was told by a third party that the injury might have resulted from improper care during delivery and consulted attorneys shortly afterwards.
An initial expert opinion obtained in 2016 indicated that the clinical picture was suggestive of hypoxia during labour, but the expert could not conclude from the available evidence that hospital staff had been negligent.
In August 2017, the applicant’s attorneys served a notice of intended legal proceedings containing allegations of negligent care, inadequate foetal monitoring and causal injury. An MRI followed in 2018 and, in 2019, a paediatrician concluded that the adverse outcome was related to an intrapartum hypoxic-ischaemic condition, neonatal encephalopathy and seizures, resulting in cerebral palsy.
The applicant maintained that it was only once the paediatrician’s report was made available and explained to her in October 2019 that she acquired the material factual basis for her claim. Summons was issued in February 2020.
The respondent argued that the applicant’s personal claim had prescribed, relying on her knowledge of the injury, the information received in 2014, her subsequent consultation with attorneys and the expert opinion obtained in 2016.
The Court disagreed. It held that the requisite knowledge was acquired only in October 2019 and that the personal claim had therefore not prescribed.
The Court’s reliance on Links
The judgment relied on Links v MEC for Health, Northern Cape, in which the Constitutional Court held that a claimant cannot be taken to know the medical cause of an injury, or whether negligence occurred, without appropriate expert input.
The Court found that the applicant’s knowledge in 2013 amounted to knowledge of the harm, rather than knowledge of its cause. The comment made to her in 2014 gave her reason to investigate but did not establish that negligent medical treatment had caused the injury. Significantly, the first specialist approached by her attorneys was himself unable to reach a conclusion on negligence.
The judgment contrasts these facts with Loni v MEC for Health, Eastern Cape, where the claimant’s own experience of an infected wound, persistent pain and inadequate treatment was sufficient to provide reasonable grounds for suspecting fault without awaiting later expert confirmation.
The Court considered this case to fall within the Links category because the medical mechanism of injury, its timing and the possible role of hospital staff required specialist investigation.
The 2017 Notice
The treatment of the August 2017 notice is perhaps the most significant aspect of the judgment for practitioners.
By that stage, the applicant’s attorneys had served a notice containing specific allegations of negligent care and inadequate foetal monitoring. The Court nevertheless characterised it as a protective or anticipatory step taken while the medical investigation remained incomplete. It held that service of the notice did not necessarily establish that the applicant herself had acquired the material knowledge contemplated by the legislation.
That finding creates an important distinction between having sufficient information to formulate and preserve a potential claim and having sufficient knowledge of the material facts for prescription to begin running.
For defendants, the difficulty lies in determining where that distinction should be drawn. A detailed notice alleging certain acts or omissions would ordinarily suggest that a claimant has progressed beyond a general suspicion that something may have gone wrong. The judgment shows, however, that the existence and specificity of such a notice will not necessarily be decisive where the medical basis for the claim remains unknown to the Plaintiff.
Reasonable care and the pace of investigation
A further issue arises from the period over which the expert investigation took place.
Approximately two years passed between the 2016 opinion and the MRI performed in 2018, with the paediatric assessment following in 2019. Section 12(3) of the Prescription Act is concerned not only with what a creditor actually knew, but also with knowledge that could have been acquired through the exercise of reasonable care.
The judgment focuses principally on the point at which the relevant expert evidence was eventually obtained and explained to the applicant. It deals less directly with whether the medical investigation itself could reasonably have progressed sooner.
That question may become increasingly important in future cases. The need for expert evidence does not necessarily mean that prescription is postponed indefinitely while that evidence is pursued. The enquiry must still include whether the claimant acted with reasonable care in acquiring the material facts.
Practical implications
For claimants, D.E.M obo K.M provides a favourable application of Links in a birth injury matter involving complex questions of causation and multidisciplinary expert evidence.
For defendants, the judgment makes the assessment of prescription more fact sensitive. Earlier suspicion, consultation with attorneys and even the service of a detailed statutory notice may not, without more, establish that the claimant had acquired the knowledge necessary for prescription to commence.
The judgment therefore adds to the continuing difficulty of distinguishing between suspicion sufficient to prompt an investigation and knowledge sufficient to start prescription.
Its treatment of the 2017 notice is likely to attract attention in future medical negligence matters. It remains to be seen whether the judgment will be taken on appeal and, if so, whether a higher court will draw the line in the same place.
