Dutton - Medical Malpractice in SA

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122Medical Malpractice in South African Law7.2 incurred medical expenses by consulting a private medical practitionerfor a second opinion and treatment [details of damages as required by therelevant rules of court]. 78. In the premises the defendant is liable to pay the sum of [quantum] to theplaintiff.9. Notwithstanding written demand delivered to the defendant on [details], thedefendant has failed to pay the sum claimed to the plaintiff.WHEREFORE [etcetera …]7See ch 3 above and esp paras 3.9–3.10 and 3.17–3.18 regarding the action for patrimonial lossand pain and suffering.
Appendix 5Misdiagnosis or Failure to Diagnose 1Based on Buls v Tsatsarolakis 2Annexure: Particulars of claim1. 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 rulesof court], a general medical practitioner, practising as such and carrying onbusiness at [address].3. On or about [date] and at [place] the parties, representing themselves, concludedan oral contract (‘the contract’), 3 the material terms of which were:3.1 that the defendant would provide the plaintiff with professional medicalservices for reward;3.2 the professional medical services consisted of examining and treatingthe plaintiff for a suspected fracture of his right wrist.4. The defendant was under a duty to perform the professional services inaccordance with the general level of skill and care possessed and exercised atthe time by the reasonable general medical practitioner. 45. The duty arose from: 55.1 an express, implied or tacit term of the contract; and/or5.2 a special relationship of doctor and patient which at all material timesexisted between the parties.6. In breach of the contract, alternatively negligently, the defendant failed toexercise the degree of care and skill required of a general medical practitionerin that the defendant:6.1 failed to conduct a reasonably competent physical examination of theplaintiff’s right wrist and as a result failed to diagnose a fracture to thescaphoid bone of the plaintiff’s right wrist;6.2 failed to take reasonable steps to ensure that sufficient x-rays were takenof the plaintiff’s wrist to allow a proper diagnosis to be made;6.3 failed to treat the plaintiff’s right wrist in accordance with a reasonablestandard by failing to place the plaintiff’s right wrist in plaster; and/or1See discussion in ch 6 above, esp paras 6.25 and 6.28.21976 (2) SA 891 (T).3See the discussion on the role of the law of contract in para 3.5 above.4The 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 ofdelict is discussed at paras 6.16 -6.18.5A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see para 4.4above.123
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THE PRACTITIONER’S GUIDE TOMedica
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First published 2015byPO Box 30702T
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viMedical Malpractice in South Afri
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viiiMedical Malpractice in South Af
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ContentsForeword by Judge Neels Cla
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xivMedical Malpractice in South Afr
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xviMedical Malpractice in South Afr
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xviiiMedical Malpractice in South A
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1IntroductionThe purpose of this bo
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Introduction 3There is, however, a
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2An Overview for Medical Practition
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An Overview for Medical Practitione
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An Overview for Medical Practitione
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3Causes of Action‘Before you draw
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Causes of Action 13For practical re
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Causes of Action 15or delict, or to
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Causes of Action 17requirements of
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3.12 Essential elements 52Causes of
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Causes of Action 21ical integrity f
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Causes of Action 23part of the defe
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3.20 Characteristics of the dependa
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Causes of Action 27part and parcel
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Causes of Action 29(that is, any ac
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Unlawfulness (Wrongfulness) 31cause
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Unlawfulness (Wrongfulness) 33Minis
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Unlawfulness (Wrongfulness) 35and p
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Unlawfulness (Wrongfulness) 37wrong
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4.8 Unlawfulness ‘in the air’Un
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Unlawfulness (Wrongfulness) 414.9 L
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Unlawfulness (Wrongfulness) 43bonos
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Unlawfulness (Wrongfulness) 45The C
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Unlawfulness (Wrongfulness) 47clari
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Unlawfulness (Wrongfulness) 49alia
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Unlawfulness (Wrongfulness) 51of th
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Unlawfulness (Wrongfulness) 53condi
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Unlawfulness (Wrongfulness) 55which
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Unlawfulness (Wrongfulness) 574.26
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5Causation‘In the morass of contr
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Causation 61conduct is not the fact
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Causation 63Conversely, though, the
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Causation 65The court found that th
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Causation 67lay in proving that the
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Causation 69which eventually occurr
Page 88 and 89: Causation 71Authority. 56 In that c
Page 90 and 91: Causation 73it may well be that the
Page 92 and 93: Causation 75was subsequently confir
Page 94 and 95: Causation 77In Clarke v Hurst NO 82
Page 96 and 97: 6FaultINTRODUCTION 16.1 Definition
Page 98 and 99: 6.4.2 Mental disease or illnessFaul
Page 100 and 101: Fault 83blood sample was taken, and
Page 102 and 103: Fault 85for subjecting her to radiu
Page 104 and 105: 2. Reasonable foreseeability;3. Rea
Page 106 and 107: Fault 89Eskom Holdings v Hendricks
Page 108 and 109: Fault 91In Dale v Hamilton 68 the p
Page 110 and 111: Fault 93to such evidence was set ou
Page 112 and 113: Fault 95a laudable development, as
Page 114 and 115: Fault 97be negligent. Broadly speak
Page 116 and 117: Fault 99had tugged too forcefully.
Page 118 and 119: Fault 101the degree of care require
Page 120 and 121: Fault 103The premature discharge of
Page 122 and 123: Fault 105The position is, therefore
Page 124 and 125: Fault 107experience in a particular
Page 126 and 127: Fault 109nor to have troubled to ha
Page 128 and 129: Fault 111take the form of conduct a
Page 130 and 131: Fault 113prima facie case, and the
Page 132 and 133: 116Medical Malpractice in South Afr
Page 156: The significant increase in medical
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Dutton - Medical Malpractice in SA

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