Dutton - Medical Malpractice in SA

Appendix 5
Misdiagnosis or Failure to Diagnose 1
Based on Buls v Tsatsarolakis 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 examining and treating
the plaintiff for a suspected fracture of his right wrist.
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 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 conduct a reasonably competent physical examination of the
plaintiff’s right wrist and as a result failed to diagnose a fracture to the
scaphoid bone of the plaintiff’s right wrist;
6.2 failed to take reasonable steps to ensure that sufficient x-rays were taken
of 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 reasonable
standard by failing to place the plaintiff’s right wrist in plaster; and/or
1
See discussion in ch 6 above, esp paras 6.25 and 6.28.
2
1976 (2) SA 891 (T).
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.
5
A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see para 4.4
above.
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