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.
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.
Legal Opinion for Plaintiff (Ms Fabulous)
Claim:
The claim for Ms Fabulous is based on delict, specifically medical negligence by Dr Fuller. This is because Dr Fuller failed to exercise the necessary standard of care in performing the lip filler procedure, leading to the severe allergic reaction that Ms Fabulous suffered.
Types of Harm Suffered:
1. Physical Harm: Ms Fabulous suffered from severe allergic reaction to the filler used, causing her lips to become swollen and inflamed, leading to hospitalization and scarring.
2. Emotional Harm: Ms Fabulous felt humiliated by the experience and endured significant emotional distress as a result of the severe reaction.
3. Financial Harm: Ms Fabulous incurred considerable expenses for the treatment of the allergic reaction, as well as lost wages due to being unable to work for six weeks.
Damages Claimed:
1. Medical Expenses: Ms Fabulous is claiming for the expenses incurred for the treatment of the severe allergic reaction, including hospitalization, medication, and follow-up appointments.
2. Pain and Suffering: Ms Fabulous is claiming for the physical pain and emotional distress she suffered as a result of the allergic reaction.
3. Loss of Income: Ms Fabulous is claiming for the income she lost due to being unable to work for six weeks, as well as any future loss of earning capacity due to the scarring on her lips.
4. General Damages: Ms Fabulous is claiming for the mental and emotional distress she endured as a result of the allergic reaction and scarring.
In conclusion, Ms Fabulous has a strong claim for medical negligence against Dr Fuller, based on the harm suffered as a result of the lip filler procedure. She is entitled to claim for the damages outlined above in order to compensate her for the ordeal she has been through.