10 July 2018

Namibia: Govt Wins Appeal Against Amputation 'Negligence'

A MAN who lost part of his leg after a shooting accident nine years ago has not proven that a government-employed doctor's alleged negligence led to the amputation of the lower part of the limb, the Supreme Court has ruled.

With its ruling on an appeal by the minister of health and social services against a High Court judgement that was delivered in June 2014, the Supreme Court has now set aside a finding that the health minister was liable to compensate a gunshot injury survivor, Ivan Kasingo, over the amputation of part of his right leg in April 2009.

Kasingo sued the minister and the superintendent of Katutura Intermediate Hospital for N$6 million, claiming that the amputation of part of his right leg was due to the negligence of a doctor who made a wrong diagnosis of the injury to his limb after he had been admitted to the hospital.

Having heard testimony in the Windhoek High Court, acting judge Kobus Miller held the health minister liable to compensate Kasingo, after finding that part of his leg had to be amputated because surgery to repair a gunshot injury to a vein in the leg was done too late.

However, in the Supreme Court's judgement, delivered on Friday last week, appeal judge Elton Hoff concluded that it had not been proven that a government-employed doctor's misdiagnosis of the injury to Kasingo's leg led to the amputation. Even if the correct diagnosis had been made it would not have made any difference in view of the fact that the hospital did not have the required facilities or expertise to carry out the sort of vascular surgery that was needed to save Kasingo's leg, judge Hoff also found.

Kasingo sustained a serious injury to his right leg after he accidentally shot himself in the limb at Lüderitz during the early morning hours of 12 April 2009. His right femur was fractured, and a blood vessel in his leg was damaged in the shooting.

After a doctor at the town had diagnosed a vascular injury which required prompt attention, Kasingo was airlifted to Windhoek for medical treatment the same day. He was admitted to the then Katutura State Hospital about nine hours after he sustained the injury.

Five hours after his admission, Kasingo's injury was examined by a Cuban doctor employed at the hospital. That doctor failed to diagnose the injury to an artery in Kasingo's leg, though, and that resulted in the vascular injury being left untreated.

Three days after his admission to Katutura State Hospital, Kasingo was transferred to Windhoek Central Hospital, where a specialist surgeon concluded that the leg had become stiff and that it could not be saved. At the insistence of another doctor, an operation was done to repair the injured artery in the leg the next day, but that surgery was in vain.

With gangrene setting in in Kasingo's leg, a decision was taken to amputate the limb to save his life. The lower part of the leg was amputated on 19 April 2009.

During the hearing of Kasingo's case in the High Court, a surgeon who saw him after his admission in hospital testified that in his opinion Kasingo's leg could probably have been saved if he had received immediate surgery to repair the damaged artery. An orthopaedic surgeon, though, testified that in his opinion the fracture of Kasingo's femur had to be fixed first before the artery in his leg was repaired, and that too much time had passed between the shooting and Kasingo's arrival in the hospital in Windhoek for his leg to be saved.

The orthopaedic surgeon also told the court that to ensure Kasingo would still have a functional limb the blood supply to the lower part of his leg needed to be restored within six to eight hours after he sustained the gunshot injury.

In view of the testimony that it was already too late to save Kasingo's leg when he was seen by the Cuban doctor who failed to realise the blood supply to the lower part of the limb had been compromised the doctor's misdiagnosis "cannot be a factor in determining negligence", judge Hoff said in his judgement.

He also noted that from the evidence presented to the court it could not be ascertained why there had been a delay of five hours from the time a first doctor saw Kasingo following his admission to the hospital and the time when the Cuban doctor examined him.

Deputy chief justice Petrus Damaseb and acting judge of appeal Yvonne Mokgoro agreed with the appeal judgement.

Deputy government attorney Marius Boonzaier represented the minister. Irvin Titus represented Kasingo.

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