Botswana clarifies limits of prescription in medical negligence

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The Botswana Court of Appeal, in the case of GMJ v Attorney General has issued a decision upholding an appeal against the decision of the High Court to dismiss a claim for damages for medical negligence on the grounds that the claim had prescribed.

The Appellant underwent a surgical procedure for removal of the womb in September 2012, but experienced leaking of urine after the procedure. She failed to get satisfactory care and timely diagnosis and treatment of her problem and therefore issued summons against the Respondent in October 2015, claiming damages for medical negligence and lack of proper post-operative care. The High Court dismissed her claim on the grounds that she became aware of the injury on the day that she first noticed the urine leaking in September 2012 and therefore the claim had prescribed having been filed after 3 years from the date of the cause of action.

In a unanimous judgment written by Lesetedi JA, the Court of Appeal found that the suspicion of the cause of the Appellant’s injury was insufficient to constitute knowledge because she did not know for a fact what had caused the leakage, and knowledge of the cause of her condition was a material fact for the purpose of determining who was at fault. Thus, the relevant date for the purposes of prescription was not the date she noticed the leaking, but the date she became aware of the cause for the leaking.

The Southern Africa Litigation Centre welcomes the decision to uphold the appeal and reinstate the Appellant’s case.

“Medical negligence claims are the most prevalent method by which women try to access the courts when their reproductive health rights are violated, but many are hampered by strict and inaccessible and unclear procedures, including laws on prescription. The court in Botswana has made the law clearer, and thus improved access to justice for women,” says Tambudzai Gonese-Manjonjo, programme lawyer at the Southern Africa Litigation Centre.

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