Rape victim gets damages for medical negligence

Mpho Mokwape | Wednesday April 30, 2025 13:02

Judge Zein Kebonang last Wednesday ordered that the plaintiff (name withheld for privacy reasons) be paid damages against the Attorney General and the then Minister of Health, Dr Alfred Madigele (cited as second defendant in the lawsuit) for the lack and/or failure to provide lifesaving medication to the victim post the rape ordeal stating it was an act of negligence.

'The provision of medication was a non-delegable function. The provision of medication in public hospitals or clinics was a duty imposed upon second defendant and not its medical doctors. It was a non-delegable duty which extended beyond the treatment by medical doctors to the duty to procure and make available the necessary lifesaving medication,' he said.

Justice Kebonang explained that although the Constitution doesn't confer a right to healthcare as soon as the plaintiff was admitted and attended at the second defendant's hospitals/clinics, she was in effect accepted into the health system run by the second defendant and therefore entered into a relationship with the minister as a patient and the minister as a 'healthcare provider'.

He said ultimately, beyond buildings, infrastructure and equipment, a government elected by the people has both a moral and legal duty to provide life saving medicine to all its people and it cannot avoid the obligation because with it, the people have entrusted the nation's resources.

'It has no reason to fail in meeting this basic demand. The acceptance of the plaintiff as a patient imposed a duty of care on the second defendant to provide amongst others the required lifesaving medication that might be prescribed by its medical doctors. The existence and scope of that duty was not in my view dependent on whether the lack of medication arose from the negligence of medical doctors, pharmacists or some administrative employees but arose from the social contract that the second defendant had with patients using its facilities,' stated the judge.

The judge also emphasised that the provision of medication in public hospitals or clinics was a duty imposed upon second defendant and not its medical doctors and it was a non-delegable duty which extended beyond the treatment by medical doctors to the duty to procure and make available the necessary lifesaving medication.

He stated that it was common cause that the minister is the principal provider of public health services in Botswana and it can be said that it has a better appreciation of the risks of running hospitals or clinics without medication.

'As I said, once the plaintiff was attended to or admitted into hospital, a relationship between the plaintiff and second defendant immediately arose. That relationship imposed a duty on the second defendant to provide medication to the plaintiff and a class of persons in her position and protect her and them against a particular class of risks,' said Kebonang.

The judge further noted that the ministry couldn't simply refrain from providing medication or divest itself of that responsibility and he hasn't explained why it operated clinics or hospitals without the availability of medication or why it permitted its systems to collapse, thus endangering every patient needing urgent medical care in its facilities.

Kebonang concluded that whether the ministry itself procured the medication directly from suppliers or delegated that function or responsibility to a third party, the duty to provide medication itself remained that of him and so too any liability if it fails to do so.

The claims against two doctors who attended the plaintiff were dismissed.

According to the judgment the application was for medical negligence in which the plaintiff sought damages in the amount of P2 million and 10% interest thereon from the date of judgment and costs of suit against the defendants.

The damages claimed resulted from the following incidents;

* Clinical and medical care rendered to her at Nkoyaphiri Clinic and Dr James Maunga cited as third defendant in the lawsuit.

* Medical care rendered by Princess Marina Hospital and Dr Hassan Bayad cited as fourth defendant at Princess Marina Hospital.

* Absence or unavailability of basic medicine (post rape treatment — pregnancy prevention medication and sexual diseases prevention medicine that is, rape kit) at Nkoyaphiri Clinic and Princess Marina Hospital.

The defendants all deny liability and had argued that the plaintiff's case must be dismissed.

The facts of the case are that the plaintiff, who was then 31 years old, was brought to Nkoyaphiri Clinic in the early hours of January 15, 2017, by the Botswana Police Service. She was a victim of a rape incident that had occurred on the night of January 14, 2017. At the clinic she was attended to by a doctor on duty who proceeded to prescribe certain medication for her.

'He also recommended that she does an HIV/AIDS test. The medication prescribed wasn't available at the clinic necessitating the plaintiff to seek it at Julia Molefe Clinic the next day. Even there, not all the medication needed was available. The recommended HIV/AIDS test was not done at Nkoyaphiri as the duty nurses were unavailable,' reads the judgment.

The judgment also revealed that it was however conducted at Julia Molefe Clinic later in the day and the test proved to be inconclusive as the testing kit showed one defined line and one faint line.

Following her assessment at Nkoyaphiri, the plaintiff said she didn't immediately go to Princess Maria Hospital or Julia Molefe Clinic as she slept and she only went to Julia Molefe in the afternoon of the 15th and to Princess Marina on January 17, 2017.

'At Princess Marina Hospital, the plaintiff was tested for both HIV/AIDS and pregnancy. The pregnancy results came out negative whilst the HIV/AIDS results were delayed resulting in the plaintiff being put on HIV treatment only in March 2017. In April 2017 the plaintiff discovered to her shock that she was pregnant and that the pregnancy was over 18 weeks. This was despite the initial test showing a negative pregnancy result,' stated the court papers.

The court documents further stated that the plaintiff then sought to have the pregnancy terminated but a doctor declined to do so as the pregnancy had advanced beyond a stage safe to terminate and that it was only through the intervention of the then Hospital Superintendent that the pregnancy was eventually terminated.

The plaintiff had alleged that if it wasn't for the negligence of the defendants, in failing to ensure availability of medication for treatment and giving her false pregnancy results, she wouldn't only have had a better chance of avoiding the HIV infection but would also haven't carried a pregnancy whose termination wasn't only late but which had severe psychological harm on her. It is for these reasons that she claims against the defendants.

According to the judgment as part of her evidence, the plaintiff testified that she wasn't availed any counselling services and that the defendants were negligent in not putting her immediately on HIV treatment and making available urgent oral contraception medication.