Dutton - Medical Malpractice in SA

Appendix 6
Failure to Refer 1
Based on McDonald v Wroe 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 dental 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 the removal of the plaintiff’s
wisdom teeth (‘the professional services’).
4. 4.1 The defendant was under a legal 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 dental practitioner (the ‘legal
duty’). 4
4.2 The legal duty included the duty to warn the defendant of the risk of
permanent nerve damage in performing the professional services.
The duty arose from: 5
4.2.1 an express, implied or tacit term of the contract; and/or
4.2.2 a special professional relationship of doctor and patient which at
all material times existed between the parties.
5. 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:
5.1 prior to the operation, failed to warn the plaintiff of the risk of permanent
nerve damage resulting from the performance of the professional
services; and/or
1
See discussion in ch 6 above, esp para 6.26.
2
[2006] 3 All SA 565 (C).
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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