Dutton - Medical Malpractice in SA

Appendix 9
Imperitia Culpae Adnumeratur 1
Based on Dale v Hamilton 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 defendant provided the plaintiff with
professional medical services, which consisted of performing an x-ray
examination for the purpose of diagnosing kidney stones (‘the professional
services’).
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 medical practitioner with training, experience
and skill in conducting x-ray examinations (the ‘legal duty’). 3
5. The legal duty arose from: 4
5.1 a special professional relationship of doctor and patient which at all
material times existed between the parties; and/or
5.2 the defendant at all times material hereto holding out that he had
reasonably sufficient training, experience and skill to enable him to
perform the professional services.
6. In breach of his legal duty, the defendant negligently failed to exercise the
degree 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 plaintiff
and, in so doing, unnecessarily exposed the plaintiff to the risk of
radiographic burns; 5
6.2 the defendant did not have reasonable knowledge of the operation of
the radiographic equipment which was used in performing the professional
services; and/or
[further grounds of breach/negligence].
1
See discussion in ch 6 above, esp para 6.27.
2
1924 WLD 184.
3
The 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 is
discussed at paras 6.16–6.18 above.
4
A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see
para 4.4 above.
5
The allegations in this paragraph establish the conduct on the part of the defendant. In this
regard see paras 4.13–4.14.
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