Parents appeal dismissal of N$500 000 medical negligence claim

A Windhoek couple is challenging a High Court ruling in which their N$500 000 medical negligence claim against the health ministry was dismissed on a technicality.

The couple’s lawsuit alleges that Katurua State Hospital staff’s negligence caused permanent brain injury to their daughter, who was born in June 2021.

The case was struck off the roll last month after judge Lotta Ambunda upheld the health ministry’s special plea of prescription, finding that the claim had been filed outside the legally prescribed three-year period.

The couple, both students, filed their lawsuit on 8 July 2024, weeks after the deadline had expired.

At the centre of the dispute is their daughter, who is nearly five years old.

Shortly after her birth she was diagnosed with hypoxic ischaemic encephalopathy (HIE), a permanent brain injury caused by oxygen deprivation during birth.

In her judgment, Ambunda said she found it difficult to comprehend how treatment of the child’s condition could amount to an acknowledgement of negligence.

“Such an argument can never hold water," she ruled.

Mockery of justice

The couple say they have filed a notice of appeal seeking to overturn the ruling, arguing that the court placed undue emphasis on legal technicalities instead of the merits of their case, saying this amounted to a “mockery of justice”.

In their appeal, the parents claim the High Court “defocused” from the central issue of alleged negligence by concentrating on prescription and failed to properly consider evidence relating to the circumstances of the birth.

A special plea of prescription is a preliminary defence which argues that a claim is legally invalid due to late filing, regardless of its substance.

The parents allege that a doctor’s recommendation for a caesarean section due to stalled labour was ignored, resulting in prolonged delivery and oxygen deprivation, constituting clear negligence.

They further argue that the mother was abandoned at a critical stage of labour and left in the care of student nurses without supervision from a qualified doctor or registered nurse.

Family’s struggles

Beyond the legal arguments, the appeal paints a stark picture of the family’s living conditions and daily struggles.

The child reportedly suffers from developmental delays, epilepsy, cortical blindness and an inability to move or feed independently.

“My daughter requires my full attention on every function… this is extremely traumatising," the mother states in court documents.

The parents, who rely on a disability grant and irregular income, say they are unable to meet the child’s extensive medical and care needs.

They are asking the Supreme Court to set aside the High Court ruling, consider the merits of the case, and declare the actions of the medical staff negligent.