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: substantiate your answers with authority from case law(each defence should be substantiated with case law from South African Courts)
In response to the plaintiff's claim, the defendant can raise the following defenses:
1) Rare Allergic Reaction: Dr Fuller can argue that Ms Fabulous's allergic reaction to the filler was indeed a rare occurrence and could not have been reasonably foreseen. In the case of Mvune v MEC for Health, Eastern Cape Province [2014] ZAECPEHC 40, the court held that medical practitioners are not expected to predict extremely rare adverse reactions and cannot be held liable for such occurrences.
2) Contributory Negligence: Dr Fuller can argue that Ms Fabulous contributed to the harm by not seeking immediate medical attention when she first noticed the cold sore-like symptoms. In the case of Van Wyk v Lewis [1924] AD 438, the court held that a plaintiff's negligence in seeking medical treatment can reduce or eliminate the defendant's liability.
3) Informed Consent: Dr Fuller can argue that Ms Fabulous was fully informed about the potential risks and side effects of the lip filler procedure, including the possibility of an allergic reaction. In the case of Castell v De Greeff [1994] (4) SA 408 (C), the court held that a medical practitioner is not liable for harm caused by a known risk that the patient consented to.
Based on these defenses, my advice to Dr Fuller would be to vigorously defend against the plaintiff's claim for medical negligence. It is crucial to present evidence demonstrating that the allergic reaction was a rare occurrence, that the plaintiff contributed to the harm, and that the plaintiff provided informed consent for the procedure. It is important to work with expert witnesses and gather medical records to support these defenses during the legal proceedings.