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
Claim for Ms. Fabulous against Dr. Fuller
Introduction:
Ms. Fabulous has suffered considerable harm as a result of the lip filler procedure performed by Dr. Fuller. She wishes to institute a claim for medical negligence against him. This legal opinion will outline the basis of her claim, the types of harm suffered, and the damages she is entitled to claim.
Basis of Claim:
The claim for Ms. Fabulous is based on delict, specifically medical negligence. Dr. Fuller owed a duty of care to Ms. Fabulous as a medical professional providing cosmetic procedures. He breached this duty by failing to properly inform her of the risks associated with the lip filler procedure and failing to adequately treat her allergic reaction.
Types of Harm:
Ms. Fabulous has suffered physical harm in the form of severe allergic reaction to the lip filler, resulting in swollen and inflamed sores on her lips. She has also endured emotional harm, feeling humiliated by the experience. Furthermore, she has incurred considerable expenses for medical treatment and has lost income due to her inability to work for six weeks.
Damages Claimed:
Ms. Fabulous is entitled to claim the following damages:
- Medical expenses: Ms. Fabulous incurred significant expenses for treatment of the severe allergic reaction. Dr. Fuller’s negligence led to these expenses and he should be held liable for them.
- Loss of income: Ms. Fabulous was unable to work for six weeks due to the allergic reaction. She is entitled to claim for the income she lost during this period.
- Pain and suffering: Ms. Fabulous endured physical pain due to the allergic reaction and emotional distress from the entire ordeal. She should be compensated for this.
- Scarring: The sores on Ms. Fabulous’ lips have left permanent scars. She is entitled to claim for the disfigurement caused by these scars.
Conclusion:
In conclusion, Ms. Fabulous has a strong legal claim against Dr. Fuller for medical negligence. She has suffered physical, emotional, and financial harm as a result of the lip filler procedure. It is vital that Dr. Fuller is held accountable for his breach of duty of care towards Ms. Fabulous.