Negligent doctor applies for rescission of default judgment

A BULAWAYO doctor who was ordered to pay $8 000 compensation for negligently causing the death of a new born baby, has applied for rescission of the default judgment.

Dr Arnold Nyamande from Marondera Polyclinic is serving a 12-month suspension and undergoing retraining at a local central hospital, a sentence delivered by the Medical and Dental Practitioners Council of Zimbabwe after it found him guilty of negligence.

Last month, a Bulawayo magistrate Ms Nyaradzo Ringisai, passed a default judgment against Dr Nyamande following an $8 000 lawsuit filed by the baby’s father Mr Champion Kudiwa.

Dr Nyamande allegedly referred the new born baby and its mother in an unregistered taxi to Mpilo Central Hospital from his surgery due to severe complications.

When the incident occurred last year, his surgery did not have enough oxygen. Hospital records show that the baby was admitted to the neo-natal intensive unit at Mpilo Central Hospital due to severe asphyxia and later died.

Dr Nyamande, through his lawyers Calderwood, Bryce Hendrie and Partners, has applied for rescission of default judgment saying Mr Kudiwa’s application was erroneously granted because his failure to appear in court was not wilful.

He said he misplaced the summons hence delays in responding to the matter.

Dr Nyamande said default judgments do not bring finality to litigation as the judgment will only have been granted on a technicality and not on the merits of the matter.

“The ramifications of maintaining the default judgement would result in the irreparable financial prejudice on me. It would be in the interests of justice and fairness that the action proceedings be determined on the merits and not on a technicality owing to a default of entering an appearance,” read part of the application.

The specialist doctor said after receiving the summons he took them home and placed them together with other documents.

He said he overlooked to take them to his legal practitioners until sometime in January when he stumbled upon them as he was going through his documents.

The doctor said his legal practitioners attempted to enter an Appearance to Defend on January 8 but the court declined to accept the documents.

He said he has a prima facie defence on the merits of the case as no cause of action is disclosed in the summons.

“Further I am advised by my legal practitioners that at the time of inspection of this Honourable Court’s record, there was no affidavit filed by the Respondent in support of what is clearly a claim for damages as is required by Order 11 Rule 4 (5) (a) of the Magistrates Court Rules,” said Dr Nyamande.

He challenged the amount of money being claimed by Mr Kudiwa saying he could not have paid medical costs at a Government hospital close to the amount or even half of what is being claimed hence he should be interrogated.

“I submit that my prospects of succeeding in my defence in the action proceedings are very high. It would therefore be in the interest of justice and fairness that the matter is determined on merits,” reads the application.

In his opposing affidavit, Mr Kudiwa said the claim was not for damages but refund for direct costs.

“Applicant must not pretend that a life was not lost through his unethical practice to which he pleaded guilty,” said Mr Kudiwa.

He said there was a lot of trauma and prejudice caused by the loss of the child and he was heavily in debt after he tried everything to save his child.

Mr Kudiwa said unfortunately his child died due to applicant’s unethical practice that saw him being convicted by his own professional body. — @AuxiliaK