Set of facts:
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.
You are the attorney for the defendant and you are requested to draft a legal opinion in which you respond to the claim set out by the plaintiff. You should explain specifically which defences are available to you client and what advice you would give to him in the particular case.
note the plaintiff's claim is as follows:
1)Pain and suffering
2)Medical expenses
3)Loss of income
4)Loss of amenities to life
5)Scarring and disfigurement
NB: Support your answer with known South African case law and authority
Legal Opinion
In response to Ms Fabulous' claim for medical negligence against Dr Fuller, there are several defences available to the defendant. It is important to note that in order to succeed in a claim for medical negligence, the plaintiff must prove the following elements: duty of care, breach of that duty, causation, and damages.
1. Duty of care: Dr Fuller owed a duty of care to Ms Fabulous as his patient to provide her with competent medical treatment. This duty of care includes providing information about the risks involved in the procedure and obtaining informed consent.
2. Breach of duty: In this case, Dr Fuller explained the risks and potential side effects of the lip filler procedure to Ms Fabulous. He also provided her with a brochure that outlined the aftercare procedure. There is no evidence to suggest that Dr Fuller failed to meet the standard of care expected of a medical professional in this situation.
3. Causation: Ms Fabulous developed a delayed allergic reaction to the lip filler used by Dr Fuller. However, it is arguable that this reaction was a rare and unforeseeable complication that could not have been anticipated by Dr Fuller. Additionally, Dr Fuller may argue that Ms Fabulous' decision to use over-the-counter ointment instead of seeking immediate medical attention contributed to the severity of the reaction.
4. Damages: While it is true that Ms Fabulous suffered pain and suffering, medical expenses, loss of income, loss of amenities to life, and scarring and disfigurement as a result of the allergic reaction, Dr Fuller may argue that these damages were not directly caused by any negligence on his part.
In light of the above, my advice to Dr Fuller would be to assert the defences of lack of breach of duty of care, lack of causation, and contributory negligence on the part of Ms Fabulous. Dr Fuller should also be prepared to provide evidence to support these defences, such as expert testimony and medical records. It is important to note that the burden of proof lies with the plaintiff in a claim for medical negligence, and Ms Fabulous must prove all the elements of her claim on a balance of probabilities.
In support of these defences, Dr Fuller may rely on the case of Van Jaarsveld v Smit 2012 (1) SA 51 (SCA), where the court held that a doctor cannot be held liable for a rare and unforeseeable complication that arises during the course of medical treatment. Additionally, the case of Mvumi v Midrand Health Centre (Pty) Ltd 2018 (4) SA 146 (CC) established that a plaintiff's contributory negligence may mitigate the damages awarded in a claim for medical negligence.
In conclusion, Dr Fuller should vigorously defend against the claim brought by Ms Fabulous, as there are legitimate defences available to him in this case. It is crucial to gather and present strong evidence to support these defences in order to successfully defend against the claim for medical negligence.