Dutton - Medical Malpractice in SA

Appendix 1
The Aquilian Action 1
Based on Pringle v Administrator, Transvaal 2
Annexure: Particulars of claim
1. The plaintiff is [set out plaintiff’s details as required by the relevant rules of court].
2. The defendant is [set out defendant’s details as required by the relevant rules
of court], a general medical practitioner, practising as such and carrying on
business at [address].
3. On or about [date] and at [place] the parties, representing themselves, concluded
an oral contract (‘the contract’), 3 the material terms of which were:
3.1 that the defendant would provide the plaintiff with professional medical
services for reward;
3.2 the professional medical services consisted of performing an operation
on the plaintiff in order to remove a growth from her chest (‘the professional
services’).
4. The defendant was under a duty to perform the professional services in
accordance with the general level of skill and care possessed and exercised at
the time by the reasonable general medical practitioner. 4
5. The duty arose from: 5
5.1 an express, implied or tacit term of the contract; and/or
5.2 a special professional relationship of doctor and patient which at all
material times existed between the parties.
6. In breach of the contract, alternatively negligently, the defendant failed to
exercise the degree of care and skill required of a general medical practitioner
in that the defendant:
6.1 failed to utilise the correct procedure in performing the professional
medical services and/or;
6.2 performed the professional medical services negligently in that he
damaged the plaintiff’s superior vena cava by tugging too forcefully on
it. 6
1
See discussion in ch 3 above, esp paras 3.9–3.10.
2
1990 (2) SA 379 (W).
3
See the discussion on the role of the law of contract in para 3.5 above.
4
The duty arises in contract and in delict. For a discussion of the contractual duty see, generally,
chs 3 and 4 above, esp at para 4.14.2. The required standard of conduct in the law of
delict is discussed at paras 6.16–6.18 above.
5
A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see para 4.4
above.
6
The allegations in para 6 establish the conduct on the part of the defendant. In this regard
see para 4.13 above.
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