Staff Reporter
THE Ministry of Health and Social Services has brought an application asking the High Court to dismiss a lawsuit in which a woman is suing the ministry for N$13 million, arguing that the claim was filed outside the maximum period allowed to institute legal action, which is three years.
A Namibian woman instituted the lawsuit against the health ministry after a doctor allegedly left a needle in her uterus and subsequently stitched her up, leaving the medical instrument inside her body. This allegedly resulted in a loss of her ability to conceive further children, as well as persistent pain and suffering, among other damages.
Representing the health ministry, lawyer Deon Ndana argued that the plaintiff’s surgery took place in February 2016; however, court action was only initiated in March 2023, more than three years after the cause of action arose.
“In casu, the Plaintiff had knowledge of the facts from which the debt arose. She knew the identity of the defendant (the medical practitioner/hospital); she knew that she had suffered harm (a piece of needle was left, she had pain, etc.). She knew the factual basis of the alleged negligence (what was done or not done by the medical staff). A reasonable person in the Plaintiff’s position, having suffered significant harm after medical treatment, would have sought an explanation, obtained medical records, or consulted a lawyer within the three-year period,” Ndana argued.
He added that the plaintiff and her husband appear to rely on the Health Professionals Council’s letter informing them that the doctor who carried out the procedure may have been negligent in 2022 as the date on which the cause of action arose, arguing that such reliance is misplaced and should be rejected by the court.
Arguing on behalf of the plaintiff, lawyer Vejaruka Pm Ndjoze said the plaintiff testified that she reasonably believed the breaking of the needle was an unfortunate accident beyond the control of the doctor.
“Because of the medical advice she was provided by the doctor, she, as at 28 February 2016, did not become aware that she might actually have a claim against the defendant or even believe that she may have a claim. She further testified that the pain continued and did not subside as the doctor had advised. Doubts about the medical advice she had received started to sprout. The Plaintiff’s husband then further testified that he felt compelled to do something in an attempt to assist his wife. What he did was lay a complaint with the Superintendent of the Katutura Intermediate Hospital,” Ndjoze said.
The lawyer further argued that evidence was led showing that, despite many follow-ups, the plaintiff and her husband never received feedback on the complaint lodged with the Superintendent of the Katutura Intermediate Hospital.
“The Plaintiff and her husband also testified that all other medical staff who treated the Plaintiff at the Defendant’s hospital, Katutura Intermediate Hospital, after 28 February 2016, took the stance that the issue of the needle left lodged in the Plaintiff was not their issue or problem. The Plaintiff and her husband testified that the trigger event in relation to obtaining the full facts relating to their cause of action came in November 2021. These ‘full facts’ came from information the Plaintiff’s husband received from the Health Professionals Council that Dr Behre Hailemariam was found guilty of medical negligence and that the Plaintiff may well have a claim against the Defendant, and that they should consult a legal practitioner to vindicate their rights,” Ndjoze said.
The lawyer argued that, based on the evidence presented, the court must determine when the plaintiff had all the facts necessary to establish that she had a claim against the defendant.
“It is respectfully submitted that only on the date when the Plaintiff became aware of the material fact that the operating doctor was found guilty of misconduct did prescription begin to run and not before that fact,” Ndjoze said.
Picture for illustrative purposes only. Photo: Pexels
