What Is A No Win, No Fee Medical Negligence Claim?
A no win, no fee medical negligence claim is a claim where your attorney’s fees depend on the outcome. If the claim doesn’t succeed, you don’t pay your attorney’s legal fees. If it does succeed, the attorney is paid a fee that was agreed in writing before the work began.
In South Africa, these arrangements are formally called contingency fee agreements. They are regulated by the Contingency Fees Act 66 of 1997, which sets out what the agreement must contain and how much an attorney may charge.
The Act places two limits on the success fee. It may not be more than double the attorney’s normal fee, and in claims for money, it may not be more than 25% of the total amount awarded.
These limits exist to protect the person who was harmed, and to keep the arrangement fair.
The agreement must be in writing. It must explain clearly what counts as a successful outcome and how the fee will be calculated. Before you sign, you should understand every part of it, and a good attorney will take the time to walk you through it.
It’s also worth knowing what a no win, no fee arrangement does not always cover. Depending on the agreement and how the matter ends, there may be other costs to discuss, such as fees for medical experts. These should be explained openly at the start, so there are no surprises later.
Why People Hesitate To Pursue Medical Negligence Claims
Most people who hesitate aren’t unsure that something went wrong. They’re unsure whether they can afford to find out if they have a claim.
Medical negligence matters are often complex. They usually involve a careful review of medical records, and often input from independent medical experts, before anyone can form a view on whether the standard of reasonable care was met.
For a family already dealing with the effects of an injury — extra medical costs, lost income, the demands of ongoing care — the thought of paying legal fees upfront can feel like too much.
Others hold back for different reasons. Some worry they won’t be taken seriously, or that questioning a doctor or hospital is pointless. Some simply don’t know where to start.
A no win, no fee arrangement removes one of the biggest barriers: the cost of legal fees before you know whether your claim is likely to succeed. It allows your situation to be properly assessed without that upfront cost standing in the way.
Hesitating also carries a practical risk. In South Africa, civil claims are generally subject to a prescription period of three years from the date you became aware, or reasonably should have become aware, of the harm and who caused it. In certain circumstances, this period can be considerably shorter.
Once a claim has prescribed, the right to claim can be lost entirely, regardless of how strong the case might have been.
What Types Of Cases May Be Considered?
A medical negligence claim isn’t about a treatment that simply didn’t work. Medicine carries inherent risk, and complications can happen even when a healthcare provider has acted correctly. A poor outcome on its own doesn’t mean negligence occurred.
The legal question is specific: did the healthcare provider’s conduct fall below the standard of reasonable care expected of them in the circumstances, and did that failure cause harm to the patient? Both parts must be established for a claim to succeed.
With that in mind, matters that may be considered on a no win, no fee basis include:
Surgical errors, such as operating on the wrong site or leaving an instrument inside the body
Misdiagnosis or delayed diagnosis, where a condition was missed or identified too late
Birth injuries, including harm to a mother or baby during pregnancy, labour or delivery
Medication errors, such as the wrong medication or the wrong dose being given
Anaesthetic errors before, during or after surgery
Treatment given without properly informed consent
Inadequate nursing care or monitoring that led to avoidable harm
Every case depends on its own facts. Whether a matter can be taken on, and on what terms, can only be decided once the medical records and circumstances have been properly reviewed.
This is where a combined medical and legal background makes a meaningful difference. Sarnah Farrell practised as a professional nurse for nearly two decades — including in theatre, emergency care, maternity and neonatal intensive care — before becoming an attorney.
That clinical experience helps in reading medical records and understanding what should have happened, not only what did.
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You don’t need to know whether someone was negligent before you ask. Establishing that is exactly what the legal process is for, and uncertainty is a normal starting point.
If you or a loved one have been harmed during medical treatment and you’re concerned about the cost of legal action, Sarnah Farrell Attorneys can review what happened, explain your options in plain language, and tell you honestly whether your matter may be suitable for a no win, no fee arrangement.
This article is for general informational purposes only and does not constitute legal advice. Every medico-legal matter is unique, and the outcome of any claim depends on its specific facts. Fee arrangements are subject to a written agreement and to the circumstances of each matter. If you or a loved one have experienced harm as a result of medical negligence, please contact Sarnah Farrell Attorneys for a consultation tailored to your situation.
