Ms Fabulous is a receptionist at a large law firm. She also considers herself an influencer with over 5000 followers on social media. She has always wanted fuller lips and makes an appointment with a Dr Fuller for a lip filler. Lip fillers are injections that give lips a more plump and full appearance. It is more generally referred to as dermal fillers.
Dr Fuller explains to Ms Fabulous that the lip filler procedure takes just a few minutes and is minimally invasive. The procedure is not permanent, and she will need future injections to maintain the lip fullness the filler creates. He further explains that she may have swelling or tenderness and bruising after the procedure, though the side effects should be minor. He also gave her a brochure that explained the aftercare procedure that she needed to follow.
The procedure goes according to plan, and after the initial slight bruising, Ms Fabulous’ lips have healed, and she is happy with the outcome. Almost six weeks after the procedure, Ms Fabulous develops what looks like a cold sore on her lip. She gets over-the-counter treatment for the cold sore, which appears to make it worse. When more sores appear, she makes an appointment with Dr Fuller, who informs her that she has a delayed allergic reaction to the filler that was used. By this time, the sores on Ms Fabulous’ lips appeared swollen and inflamed. Dr Fuller informed her that he had to refer her to an immunologist to treat the severe allergic reaction. Ms Fabulous was admitted to the hospital and incurred considerable expenses for the treatment.
Ms Fabulous was not able to work for six (6) weeks. The employer granted her sick leave payment for two (2) weeks and unpaid leave for the remainder of the time. She recovered well after the treatment although the sores left scars on her lips that would fade over time but never entirely disappear.
Ms Fabulous wants to institute a claim for medical negligence against Dr Fuller for the ordeal that she has been through. She felt humiliated by the experience and she incurred considerable expenses.
When she confronted Dr Fuller he told her that the allergic reaction that she suffered was very rare. He also said that she had contributed to the harm by using over-the-counter ointment, which worsened the reaction, instead of immediately contacting a doctor.
Instructions:
Find a teammate in class. One of you will be the attorney for the plaintiff (Ms Fabulous) and the other for the defendant (Dr Fuller).
Attorney for plaintiff: draft a legal opinion in a PowerPoint presentation in which you set out the claim for the plaintiff. Explain specifically:
whether your client’s claim is based on contract or delict;
the types of harm suffered;
the damages claimed on her behalf.
Attorney for the defendant: draft a legal opinion in a PowerPoint presentation in which you respond to the claim set out by the Plaintiff. Explain specifically which defences are, in theory, available to your client and what your advice to him would be in the particular case.
Upload your PowerPoint presentation to Blackboard on/before 29 April 2024 at 12 pm (noon).
Present your arguments in class. You will each have 2 – 3 minutes to present your client’s case.
You have to substantiate your arguments with authority from case law.
Marks allocation: PowerPoint Presentation [10] + Oral Presentation [10] = 20 marks.
Please note that I am unable to create a PowerPoint presentation as requested. However, I can provide you with the information you need to create the legal opinions for both the plaintiff and the defendant in this case.
Attorney for the Plaintiff (Ms Fabulous)
Legal Opinion:
- Ms Fabulous' claim is based on delict, specifically medical negligence. Dr Fuller owed her a duty of care as her healthcare provider, and the allergic reaction she suffered was a result of his failure to provide appropriate care.
- The types of harm suffered by Ms Fabulous include physical harm (allergic reaction leading to hospitalization and scarring), emotional harm (humiliation and distress), and financial harm (medical expenses and loss of income).
- The damages claimed on behalf of Ms Fabulous would include compensation for medical expenses, loss of income, pain and suffering, emotional distress, and any other relevant damages.
Attorney for the Defendant (Dr Fuller)
Legal Opinion:
- In theory, the defendant (Dr Fuller) may have the following defenses available to him:
1. Contributory negligence - Dr Fuller may argue that Ms Fabulous contributed to the harm by using over-the-counter ointment instead of immediately contacting a doctor, which worsened the reaction.
2. Unforeseeable harm - Dr Fuller may argue that the allergic reaction suffered by Ms Fabulous was very rare and unforeseeable.
3. Informed consent - Dr Fuller may argue that Ms Fabulous was informed of the risks and side effects of the lip filler procedure, and she consented to the treatment knowingly.
Advice to the defendant:
- Based on the available defenses, it would be advisable for Dr Fuller to argue contributory negligence and informed consent in this case. It is important to gather evidence to support these defenses, such as medical records, consent forms, and expert opinions.
I hope this information helps you in creating the legal opinions for both parties in the case. Good luck with your presentation!