Monday, March 8, 2021

State appeals mother’s negligence lawsuit

The State has filed an appeal to the Court of Appeal (CoA) following a case in which Nyangabwe Referral Hospital lost a lawsuit for causing death to a 13-year-old girl.

Lalu Mazhani, who is the mother to the deceased minor, took the hospital to Francistown High Court in 2014 demanding P10 million for damages.

She accused the hospital of negligence leading to the loss of her daughter. The Ministry of Health and Wellness was cited as 1st respondent, Nyangabwe Referal Hospital 2nd respondent while the Attorney General was the 3rd respondent.


According to the court papers, Mazhani’s misery began in June 2010 when her daughter complained of an excruciating pain in the stomach. Disturbed by her daughter’s deteriorating health, she rushed her to Nyangabwe Referral Hospital where she was admitted. 

She was then informed by the surgeons on duty that they needed to operate her daughter to remove her appendix and relieve her from pain. The operation was done on the 9th of June 2010. After the operation, the daughter felt some tightness in her stomach and it became swollen. 

The situation worsened to the extent that she started to develop a swelling on her neck sometime in June 2010. The plaintiff took her daughter to Jubilee Hospital on the 21st of September 2010 to get pills for constipation but the situation did not improve. 

On the 29th of September 2010 she took her daughter for a CT scan at Nyangabwe Referral Hospital to try and see what the problem was. The daughter was attended by one Dr Mcharo who suggested that a second biopsy operation was necessary and that her daughter should be admitted on the 14th of October 2010. On the 30th of September 2010 while her daughter was in a toilet she experienced a sharp pain as something had blocked her anal passage. 

She pulled it out and to her shock, she realized it was a medical gauze. She showed it to her mother (plaintiff) who then immediately reported the matter to the hospital staff. She found a junior Doctor, one Dr Max Nthato who assigned a nurse to preserve the object and take it to his supervisors after independence holidays. The plaintiff managed to have one meeting months later with hospital superintendent Dr Mosweu. Dr Mosweu including her staff advised the plaintiff that they could not in any way take responsibility for what happened. Sadly while the plaintiff was in the process of trying to get recourse and get to the bottom of the matter, her daughter passed away on the 24th of June 2011. On the 5th of September 2013, an application was filed to compel Nyangabwe Hospital to produce a medical report. 

The report was only released on the 19th of May 2014. In the report, Nyangabwe Hospital is said to have admitted that the gauze was left unintentionally in the plaintiff’s daughter.
Trial was conducted and judgment was then granted in favour of the plaintiff in 2015 by Francistown High Court Judge Bengbame Sechele. Nyangabwe Hospital represented by Wedu Maphane from the Attorney General (AG) then appealed the verdict to the Court of Appeal. 

The Court of Appeal held that Mazhani (plaintiff) had not proven the right upon which her claim for damages was conditional. It granted an order of absolution from the instance.


On the 22 of February 2018, the plaintiff instituted the same action again which was brought before Francistown High Court Judge Lot Moroka. The defence then reacted to the action where it raised special pleas of prescription and argued that the case should be dismissed on the basis that absolution from Court of Appeal attracted the same consequences as dismissal of the action and brought the matter to finality. It also argued that the court should not allow a re-litigation.


However, through an interlocutory judgment issued on the 4th of October 2018, Judge Moroka dismissed the special pleas raised by the defence. He said the order of absolution issued by the Court of Appeal did not attract the same consequences as dismissal of the action and did not bring the matter to finality. 

The Judge maintained that it is permissible for the plaintiff to proceed with the matter as she had done.
Through her lawyer Mbiganyi Mizha, the plaintiff said that the hospital should be held responsible for causing the death of her daughter. 

She said that the period between 9th of June 2010 and 30th September 2010 was substantially a long period for a foreign body to have caused extensive and irreparable harm to the deceased’s body. She also contended that as a result of the hospital failure to take due care and attention expected during the surgery, it led to the death of her daughter. She accused the hospital for negligence and failing to carry out proper surgery on her daughter with the sufficient skills and due care that is expected from surgeons.


On the other hand the defence denied responsibility for the death of the deceased as claimed by the plaintiff in the court papers. Part of the argument by the defendant was that if the gauze was obstructing the bowel movement of the deceased, such could have stabilized once it was passed outside of the body. The defendant further maintained in the court papers that by the time the minor child died, there was a period of nine months after the foreign object had been passed. Giving judgment Moroka ruled in favor of the plaintiff saying that the plaintiff consequently proved that the death of her daughter was as a result of negligence from Nyangabwe Hospital causing her Post Traumatic Disorder (PTD) as per evidence before court. He however said the P10 million damage suit was excessive and awarded the plaintiff P1.5 million in damages and ordered the defendant to pay costs.


However, in the grounds of appeal, the Attorney General (Appellant) contends that the court erred in law by concluding that an order of absolution from the Court of Appeal did not attract the same consequences as dismissal of the action and did not bring the matter to finality. The appellant further in part of the grounds argues that it was not permissible to allow the plaintiff to pursue the matter as she had done. 

The appellant further asserts that the High Court erred in law by making a grossly disproportionate excessive award of P1.5 million based on irrelevant factors. The appellant is seeking that the appeal be upheld with costs and that the plaintiff’s action as against all the defendants be dismissed.  The Attorney General is further seeking that the respondent (Mazhani) bears the costs in the application for leave to appeal. The respondents are yet to file their papers.

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