Dutton - Medical Malpractice in SA

Appendix 7
Claim for Negligent Failure to Render
Post‐Operative Care 1
Based on Premier, KZN v Sonny 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 express, implied or tacit
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 treating and setting a fracture
to the plaintiff’s right femur, which included reasonable post-operative
and follow-up care and treatment (‘the professional services’); and
3.3 that the professional services would be performed in accordance with
the general level of skill and care possessed and exercised at the time by
the reasonable general medical practitioner.
4. 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 general medical practitioner (the ‘legal duty’). 4
5. The legal duty arose from: 5
5.1 the terms of the contract; and/or
5.2 a special relationship of doctor and patient which at all material times
existed between the parties.
6. On [date], the defendant treated and set the plaintiff’s right femur.
1
See the discussion on the role of the law of contract in para 3.5 above. See esp ch 6 para 6.24
above.
2
2011 (3) SA 424 (SCA).
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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