Dutton - Medical Malpractice in SA

More documents

Recommendations

Info

130Medical Malpractice in South African Law[further grounds of breach/negligence].7. As a result of the defendant’s negligence, the baby suffered severe braindamage [details of further injuries and quantum];8. In the premises the defendant is liable to pay the sum of [quantum] to theplaintiff.9. Notwithstanding demand, the defendant has failed to pay the sum claimed.WHEREFORE [etcetera …]
Appendix 9Imperitia Culpae Adnumeratur 1Based on Dale v Hamilton 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 defendant provided the plaintiff withprofessional medical services, which consisted of performing an x-rayexamination for the purpose of diagnosing kidney stones (‘the professionalservices’).4. The defendant was under a legal duty to perform the professional services inaccordance with the general level of skill and care possessed and exercisedat the time by the reasonable medical practitioner with training, experienceand skill in conducting x-ray examinations (the ‘legal duty’). 35. The legal duty arose from: 45.1 a special professional relationship of doctor and patient which at allmaterial times existed between the parties; and/or5.2 the defendant at all times material hereto holding out that he hadreasonably sufficient training, experience and skill to enable him toperform the professional services.6. In breach of his legal duty, the defendant negligently failed to exercise thedegree of care and skill required in conducting x-ray examinations in that:6.1 the defendant positioned the x-ray tube unreasonably close to the plaintiffand, in so doing, unnecessarily exposed the plaintiff to the risk ofradiographic burns; 56.2 the defendant did not have reasonable knowledge of the operation ofthe radiographic equipment which was used in performing the professionalservices; and/or[further grounds of breach/negligence].1See discussion in ch 6 above, esp para 6.27.21924 WLD 184.3The duty arises in contract and in delict. For a discussion of the contractual duty see, generally,chs 3 and 4 above, esp at 4.14.2. The required standard of conduct in the law of delict isdiscussed at paras 6.16–6.18 above.4A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, seepara 4.4 above.5The allegations in this paragraph establish the conduct on the part of the defendant. In thisregard see paras 4.13–4.14.131
Page 2 and 3:
THE PRACTITIONER’S GUIDE TOMedica
Page 4 and 5:
First published 2015byPO Box 30702T
Page 6 and 7:
viMedical Malpractice in South Afri
Page 8 and 9:
viiiMedical Malpractice in South Af
Page 10 and 11:
ContentsForeword by Judge Neels Cla
Page 12 and 13:
xivMedical Malpractice in South Afr
Page 14 and 15:
xviMedical Malpractice in South Afr
Page 16 and 17:
xviiiMedical Malpractice in South A
Page 18 and 19:
1IntroductionThe purpose of this bo
Page 20 and 21:
Introduction 3There is, however, a
Page 22 and 23:
2An Overview for Medical Practition
Page 24 and 25:
An Overview for Medical Practitione
Page 26 and 27:
An Overview for Medical Practitione
Page 28 and 29:
3Causes of Action‘Before you draw
Page 30 and 31:
Causes of Action 13For practical re
Page 32 and 33:
Causes of Action 15or delict, or to
Page 34 and 35:
Causes of Action 17requirements of
Page 36 and 37:
3.12 Essential elements 52Causes of
Page 38 and 39:
Causes of Action 21ical integrity f
Page 40 and 41:
Causes of Action 23part of the defe
Page 42 and 43:
3.20 Characteristics of the dependa
Page 44 and 45:
Causes of Action 27part and parcel
Page 46 and 47:
Causes of Action 29(that is, any ac
Page 48 and 49:
Unlawfulness (Wrongfulness) 31cause
Page 50 and 51:
Unlawfulness (Wrongfulness) 33Minis
Page 52 and 53:
Unlawfulness (Wrongfulness) 35and p
Page 54 and 55:
Unlawfulness (Wrongfulness) 37wrong
Page 56 and 57:
4.8 Unlawfulness ‘in the air’Un
Page 58 and 59:
Unlawfulness (Wrongfulness) 414.9 L
Page 60 and 61:
Unlawfulness (Wrongfulness) 43bonos
Page 62 and 63:
Unlawfulness (Wrongfulness) 45The C
Page 64 and 65:
Unlawfulness (Wrongfulness) 47clari
Page 66 and 67:
Unlawfulness (Wrongfulness) 49alia
Page 68 and 69:
Unlawfulness (Wrongfulness) 51of th
Page 70 and 71:
Unlawfulness (Wrongfulness) 53condi
Page 72 and 73:
Unlawfulness (Wrongfulness) 55which
Page 74 and 75:
Unlawfulness (Wrongfulness) 574.26
Page 76 and 77:
5Causation‘In the morass of contr
Page 78 and 79:
Causation 61conduct is not the fact
Page 80 and 81:
Causation 63Conversely, though, the
Page 82 and 83:
Causation 65The court found that th
Page 84 and 85:
Causation 67lay in proving that the
Page 86 and 87:
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
show all

Dutton - Medical Malpractice in SA

Create successful ePaper yourself

Delete template?

Save as template?