A special plea raised by the government and the minister of health and social services has been dismissed in the Windhoek High Court.
This involves a case in which a woman is suing them for N$13 million after a piece of a needle was left behind in her body during surgery at a state hospital.
The special plea of the government and health minister, who claimed Windhoek resident Else Tsuxus filed a medical negligence case against them more than four years too late, was dismissed in a ruling delivered by judge Thomas Masuku yesterday.
Masuku’s ruling means that Tsuxus’ claim against the government and health minister can continue.
Tsuxus is suing the two defendants for N$13 million, based on allegations that a part of a surgical needle was left behind in her body when an operation was done on her at Katutura Intermediate Hospital in February 2016.
According to Tsuxus, she was informed in February 2016 that a needle used during the surgery had broken and a fragment of it had become lodged in her uterus.
Tsuxus is also claiming she was informed the piece of the needle could not be removed immediately, but that it would not cause her harm and she would eventually regain her normal and active lifestyle, Masuku recounted in his ruling.
She continued to experience severe abdominal pain after being discharged from the hospital, but no corrective treatment was undertaken to remove the broken needle or otherwise address the cause of her pain, Tsuxus is claiming.
She is also claiming that the needle fragment is still present in her body.
Tsuxus lodged a complaint about the way she had been treated at Katutura Intermediate Hospital with the Health Professions Councils of Namibia in 2017. She says she was informed only in December 2022 that the relevant medical personnel had acted negligently and unprofessionally in their treatment and management of her condition.
Tsuxus filed a medical negligence claim against the government and the minister of health and social services in the Windhoek High Court in March 2023.
In their special plea, the government and health minister said Tsuxus’ claim against them expired in terms of the Prescription Act of 1969, as it should have been filed within three years after the event about which Tsuxus sued them, which they said took place in February 2016.
Tsuxus’ lawyer, Vejaruka Ndjoze, argued that the three-year prescription period did not start to run in February 2016, when the needle fragment retained in Tsuxus’ body was discovered, but started only in December 2022, when she became aware that the operating doctor may have acted unprofessionally or negligently.
Ndjoze also argued that Tsuxus could not have been expected to suspect negligence, because the operating doctor advised her that the piece of needle was too small to pose a danger to her health, that she would recover and that the removal of the fragment would itself pose a greater risk.
Masuku found that Tsuxus acquired knowledge of the material facts form which her claim arose only in December 2022, and that the prescription period started to run from then.
The judge also found that, with the piece of needle having remained in Tsuxus’ body since the operation in February 2016, “the alleged wrongful conduct did not necessarily end with the completion of that operation”.
Masuku stated: “In my view, it would be unjust to penalise [Tsuxus], taking all the circumstances into account, for failing to institute the proceedings before she could reasonably have appreciated the nature and magnitude of her medical condition.”
Government lawyer Deon Ndana is representing the government and the health minister in the matter.
