Late filing sinks N$500 000 medical negligence claim

A N$500 000 medical negligence lawsuit against the health ministry has been dismissed after High Court Judge Lotta Ambunda found the claim was filed outside the legally allowed time.

The case, brought by a Windhoek couple over the birth of their daughter at Katutura Intermediate Hospital in June 2021, was dismissed after the ministry’s special plea of prescription was upheld.

The couple filed the claim on 8 July 2024, just weeks after the three-year legal limit for filing medical negligence cases had expired.

A special plea of prescription is a preliminary defence in civil cases. It argues that a claim cannot proceed because it was filed after the time limit set by law, usually three years. It does not consider the merits of the case but asserts that the action is legally barred.

“I find it difficult to comprehend how treatment of a condition of the first plaintiff's baby can ever be an acknowledgement that there was negligence in the birth of the baby or an acknowledgement that the ministry will pay the amount claimed… Such an argument can never hold water," the judge noted.

The couple, represented by Kadhila Amoomo, argued that hospital staff failed to monitor the baby properly during labour, leading to oxygen deprivation and brain damage. They claimed that ongoing medical treatment of the child amounted to a “continuous wrong” and a tacit acknowledgment of liability under Section 14 of the Prescription Act.

However, the ministry, represented by Quine Fenyeho, argued that the alleged negligent acts occurred on 16 or 17 June 2021, and the debt became due immediately, making the July 2024 filing too late.

“The claim against the defendant was instituted more than three years after the cause of action arose. The plaintiffs’ claim has thus been prescribed in terms of section 11(d) of the said Act," the ministry’s legal team argued.

Ambunda rejected the claimants’ continuous wrong argument, noting that while the consequences of the alleged injury may be ongoing, the negligent conduct itself was a single completed act during delivery.

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