Woman Loses P3m Claim For Damages Against Bokamoso

Doctor had left a metal in patient’s head for 3 months


The High Court has ruled against one Tiroyaone Thobega’s P3 million demand for damages from Bokamoso Private Hospital after a doctor left medical equipment in her body for three months following a procedure to remove bladder stones at the hospital.

In his ruling delivered on 29 November 2020, Justice Nthomiwa Nthomiwa said that the plantiff had failed to prove her claims of negligence against the hospital and how she arrived at the P3 million figure for damages.

Thobega had sued Bokamoso Hospital and Dr Mahungu Mangala in 2016 for what she said was the hospital’s preventable negligence. The negligence led to her exhausting her medical aid as she needed medical attention for the resulting pain, she added.

“The plaintiff’s history is one of a person who is either prone to pain or one who had an underlying infection before May 2015,” Justice Nthomiwa said. “The stent itself has proven to be harmless to the human body (even if it stays for over a year) as it is meant to be left inside a human body, unlike other materials such as a medical swab. There is, however, an admission that a stent may cause pain to certain patients.”

“She also cannot prove that the stent is the one that caused e-coli which in turn led to her unbearable condition. In this regard, the court has been urged to guard against the danger of approaching the problem with the advantage of hindsight. It is essentially speculative to hold that the stent was the sole cause of the plaintiff’s pain and that its early removal would have alleviated the pain. An inference of negligence drawn from the lack of calling patients is unreasonable, particularly where a patient had been informed to return for the removal of the stent.”

Justice Nthomiwa then ruled that Thobega had failed to prove that Bokamoso and Dr Mangala were negligent in performing an operation on her and by failing to take care of her.

Whether the plaintiff is entitled to damages

“The plaintiff claims P3 million (being) for past medical expenses, damages, special examinations, surgical treatments, estimated future loss of income, and pain and suffering,” the judge noted. “Damages in terms of Order 26 of the Rules of the High Court must be pleaded and proved. It is is not clear, in my view, how the plaintiff arrived at the amount that she is now claiming.”

According to Justice Nthomiwa, Thobega ought to have highlighted and given expert evidence of the nature of the extent of the damages suffered. “In view of the above, I come to the conclusion that the plaintiff has failed to prove her case of negligence on a balance of probabilities and the claim stands dismissed with costs,” he said. “She has further failed to prove damages that she is claiming from the Defendant.”