Nurse wins round 1 of E6.7m suit against govt

MBABANE - A nurse who is suing Mbabane Government Hospital for over E6.7 million after an alleged botched operation, has won round one against government.

This comes after the court granted her a special leave to institute proceedings against government in terms of Section 49 (1) of the Limitations of Legal Proceedings against Government Act of 1972.

Nomcebo Jele, who is based at the same hospital had failed to comply with the mandatory provision that a person who wants to institute an action against government should serve a letter of demand within a period of 90 days from the date upon which the cause of complaint arose. She then filed an application for condonation.

The order was granted by consent of both parties Acting High Court Judge Bonginkhosi Magagula.

Informed

In her particulars of claim, Jele informed the court that on July, 20-23, 2019, she was a patient at the Mbabane Government Hospital.

According to Jele, she was admitted as she was suffering from haemorrhoids.

Haemorrhoids are swollen veins in your lower rectum. Internal haemorrhoids are usually painless, but tend to bleed. External haemorrhoids may cause pain.

Jele submitted that on July 20, 2019 she was advised by the members of staff of the first respondent (Mbabane Government Hospital) that an operation to remove the haemorrhoids was necessary and she agreed.

She recounted that on July 23, 2019, members of the hospital staff, who were acting with the cause and scope of their employment with Eswatini Government and serving under the Ministry of Health operated her. Jele pointed out that the staff members were qualified medical personnel who performed operations on regular basis. The applicant (Jele) narrated that on August 29, 2019, she went for a review of the operation at the Mbabane Government Hospital.

Healed

“The records state that the surgeon who attended me found a healed surgical scar at 3-5 O’ clock position and the scar was deep into the rectum. The operation was conducted by a medical doctor instead of a surgeon,” contended Jele.

In medicine, a surgeon is a person who performs surgery. Surgery is a broad category of invasive medical treatment that involves cutting of a body, whether human or other organism. Surgeons may be physicians, dentists, or veterinarians who specialise in surgery.

These are allegations contained in particulars of claim whose veracity is still to be tested in court and the defendant (Mbabane Government Hospital) is yet to file its papers.

“As result of the operation my sphincter was removed, which in the circumstances was unwarranted and unjustifiable. The findings were that sphincter was absent and the only option was to reform by anoplasty.

A sphincter is a ring of muscle surrounding and serving to guard or close an opening or tube, such as the anus or the openings of the stomach.

Jele argued that the doctor who conducted the operation allegedly owed a duty and skill towards her. She asserted that the act of removing the sphincter was negligent and wrong such that she could not control her bowels or movements.

Jele submitted that she was further attended by a specialist surgeon in the Republic of South Africa where the diagnosis was allegedly internal damage.

Correcting

She avowed that the South African doctor performed an operation with a view of correcting the damaged sphincter. Jele highlighted that on October 16, 2019, she was arrested by a doctor at the Mbabane Government Hospital after the anoplasty was performed. Jele claimed that she reported to the doctor that she was still not able to control her bowel movement. She claimed that she was attended by another doctor who indicated that she was to undergo physiotherapy.

The plaintiff went on to inform the court that she went for review on March 5- 6, 2020, where the issue of the inability to control her bowel was persisting. She averred that as a result of this, she was depressed and she was referred to a psychologist for counselling.

“I was to return to South Africa for review but was prevented by the COVID-19 pandemic,” said Jele.

“The first respondent staff who removed my sphincter was acting within the cause and scope of their employment which caused me unable to control my bowel movement. This problem that I have to live with for the rest of my life,” argued the applicant.

She contended that as a result of the alleged negligent act by the first defendant, a sphincter was removed which resulted in her not being able to control her bowel movement. Jele pointed out that up to date she could not control her bowel.

She contended that notwithstanding lawful demand the defendant has allegedly failed and/ or neglected to pay her a sum of E6 729 000.

The matter is still pending in court and appearing for the applicant is Leo Ndvuna Dlamini of L.N Dlamini and Associates.