Dutton - Medical Malpractice in SA

Appendix 11
Plastic Surgery 1
Based on Castell v De Greeff 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 plastic surgeon, 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 performance of a subcutaneous
mastectomy and prosthetic implant procedure on the plaintiff
(‘the professional services’).
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 plastic surgeon. 4
5. The duty arose from: 5
5.1 an express, implied or tacit term of the contract; and/or
5.2 a special professional 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 performed the mastectomy and prosthetic implant simultaneously
instead of in two stages;
6.2 removed and repositioned the areolae unnecessarily, alternatively
without ensuring that the blood supply was sufficient to prevent
necrosis;
6.3 repositioned the areolae in breach of a specific agreement that he would
not do so;
1
See discussion in ch 6 above.
2
1994 (4) SA 408 (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 paragraphs 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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