02 Nov 2017

Ms Tshephang Masotja has for the second time lost her case, this time before the just-ended Court of Appeal (CoA) session, where she had taken government to court for alleged unsuccessful tubal ligation surgical procedure.

On October 10, 2014 the Francistown High Court dismissed with costs her case in which she had sought damages under various heads, which she allegedly suffered as a result of an unsuccessful tubal ligation surgical procedure carried out at Nyangabgwe Referral Hospital in 2001.

The procedure was intended to prevent her from falling pregnant.

The appellant nonetheless fell pregnant and delivered in 2005 and this meant the procedure had failed to achieve its intended purpose.

In her court pleadings the appellant alleged that she had been assured by the doctor, who carried out the 2001 tubal ligation procedure that the procedure had been successful.

However, the appellant claimed that the pregnancy was a result of the failed procedure and that the procedure failed because it was not carried out with reasonable care and skill and further that it failed because the doctor or staff at the hospital involved in the carrying out the procedure were grossly negligent in a number of respects.     

The court learnt that during her case at the trial, her third witness who was a specialist obstetrician gynaecologist, who delivered her baby in 2005 carried out an examination of Masotja’s reproductive organs to find out why the tubal ligation procedure failed.

His findings were that the ligation on her left side has been successful, but that on the right side it appeared that the fallopian tube was intact, but what had been cut was another tube close to it.

Asked to give his observation after examining the appellant, he said, “my first observation is that the surgeon could have picked up a wrong structure, that is, the round ligament of the uterus ,which looks like and feels like a tube.

Secondly, if sterilisation was not done properly, that is, the two ends not separated far enough apart, the two ends can reconcile or rejoin, forming a whole tube again”.

In the defence, the respondent (Attorney General) called one witness.

He was the obstetrician specialist gynecologist who carried the tubal ligation procedure in 2001.

He explained the steps he followed before carrying out the procedure.

These include counselling, explaining of the pros and cons of the procedure including that it is not 100 per cent full proof and getting the consent form for the procedure signed.

Most pertinent in his evidence was that he cut both tubes and that there are many reasons why a tubal ligation can fail, the most important one being pomery, which is where the cut-off tubes grow back together after 12 months or so.

If this happens the patient can fall pregnant.  

Meanwhile, the Court of Appeal, through evidence submitted by both the doctors, found that it was indeed probable that the procedure was successful for at least several years, over four years later that the appellant delivered a child, despite not using contraceptives.

The court found that this too enhances the probability that after a successful ligation, the ends of the right fallopian tube re-attached, opening the way to a further pregnancy.

The ruling noted that the appellant was in the circumstance bound to fail to establish causation, let alone medical negligence on the part of the respondent’s medical doctor.

Justice Isaac Lesetedi, who delivered the ruling, noted that the failure of that procedure was not due to an act or omission on the part of the respondent’s doctor, but that it was an inherent risk that went with the procedure and therefore dismissed the appeal with costs. BOPA