“Heart patients may be putting their health at risk by taking treatment from Dr. Kiran Bhagat who, contrary to his claims, is not a heart specialist – the Botswana Health Professions Council (BHPC) has warned.” That was the opening line in an article published by a local Sunday newspaper on 14th April 2010. This was after BHPC had floated public notices in the media warning the public that Dr. Bhagat was not registered as a cardiologist and that he had been told to stop practicing as one.
“The BHPC wishes to clarify and inform the public that Dr. Kiran Bhagat is registered with the council as a general physician and not as a cardiologist. The council has communicated with Dr. Bhagat on the matter, including the requirement for his medical practice to be consistent with his registration status,” read the statement from the health regulatory body. This action by the BHPC would later lead to protracted war of words and court battles as Dr. Bhagat fought to clear his name and maintained that he was indeed a qualified cardiologist befitting to practice and be addressed as such. The case took a dramatic twist at some point when BHPC and its board members submitted pleas before court claiming that Bhagat had never been registered with the council even though he had been practicing medicine in the country. The council insinuated that Bhagat had been impersonating someone else in his quest to be registered and had been using a certificate that does not belong to him. The matter was first heard before High Court Judge Justice Leburu who, on the 30thMarch 2011, ruled in favour of the BHPC and dismissed Bhagat’s application with costs on the punitive scale of attorney and client.
Undeterred, Bhagat took the matter to the Court of Appeal (CoA) and roped in one of the best legal brains in Southern Africa, Advocate A.P. de Bourbon assisted by Attorney R.M. Kamushinda. A panel of three Court of Appeal Judges, Lord Abernethy, N.J. McNally and M.M. Ramodibedi unanimously overruled Justice Leburu’s judgment and upheld Bhagat’s appeal on 29th July 2011. In a 69-page judgment, the CoA submitted that Judge Leburu had misdirected himself when making the judgment in that he did not take into account some of the evidence that was brought before him. The CoA did not spare BHPC and its board members either for being careless in their work in that there were some errors in the registration of Bhagat the BHPC ought to have picked. The judgment went on to punch more holes in the defence submitted by BHPC: “For all these reasons in my opinion the learned Judge a quo was not justified on the evidence in the conclusion which he reached on the question of the appellant’s registration and his judgment on that aspect of the matter cannot stand,’’ reads part of Lord Abernethy’s judgment. The court also ruled that the matter be not remitted to the first respondent (BHPC) as papers before court showed that they would not be in a position to re-hear his application impartially. “In my view, this court is fully justified in making the decision itself rather than remitting the matter to the first respondent for consideration of the decision it took on or about 13, March 2010, because all four of the circumstances outlined above are present,’’ reads part of the CoA judgment.
The three CoA judges made an order declaring that at the time of the proceedings before the High Court, Dr. Bhagat was duly registered as a medical practitioner and was as such entitled to practice the profession of medicine in Botswana. The court also set aside the decision of the BHPC to refuse to register Dr. Bhagat as a Cardiologist. The BHPC was also ordered “to recognize the appellant as a specialist who is qualified and entitled to be registered and to practice as such and call himself a Specialist Physician and Cardiologist,’’ the CoA judges submitted in their ruling. BHPC was also ordered to pay costs of the suit both in the High Court and in the Court of Appeal.
The CoA judgement then boosted Dr. Bhagat’s defamation lawsuit which he had launched against BHPC and its board members in which he was seeking P 9,3 million for loss of income due to desertion by patients and personal hurt and pain. In the lawsuit, Dr. Bhagat had cited 13 doctors and the BHPC. The BHPC was cited as the first defendant, then the following as respondents: Dr. Joseph Makhema, Dr. Brighid Malone, Dr. Ikopeng German, Prof. Thomas Massaro, Dr. K. Kgosibodioba, Dr. Thato Moumakwa, Felicity Gochani-Sebeso – a dietician and Assistant Registrar of BHPC, Tshegofatso Mabeo, a physiotherapist, M. Ntsabane, a social worker, E Palai- a dentist, Boago Modiitsane, an optometrist, pharmacist Richard Leepo and Duncan Thela, also a pharmacist. Paralysed by the CoA judgement, BHPC is said to have given in to Dr. Bhagat’s demands, with the Ministry of Health deciding to settle the matter out of court, paying him P9 million cash plus a three-year consultancy contract in government hospitals which itself does not come cheap.