Dutton - Medical Malpractice in SA

Appendix 3
Claim for Negligence for Misdiagnosis 1
Based on Mitchell v Dixon 2
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 conducting such examination
as was reasonably appropriate, and thereafter diagnosing and
advising the plaintiff on appropriate treatment (‘the professional
services’).
4. The defendant owed the plaintiff a legal duty to perform the services in
accordance with the general level of care, skill and diligence possessed and
exercised in the circumstances by the reasonable general medical practitioner
(the ‘legal duty’). 4
5. The legal duty arose from: 5
5.1 the contractual relationship between the parties; alternatively
5.2 the special professional relationship of doctor and patient which existed
between the parties.
6. On [date], the defendant negligently breached his legal duty in that:
6.1 the defendant wrongly made a diagnosis that the plaintiff was suffering
from a pneumo-thorax;
6.2 the defendant wrongly advised the plaintiff to undergo surgery for the
treatment of the pneumo-thorax;
6.3 the plaintiff was not suffering from a pneumo-thorax at the time that
the diagnosis was made, or at any other time material hereto; and
1
See discussion in ch 6 above, esp at 6.25.
2
1914 AD 519.
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.
119