Supreme Court reverses damages award

Three Judges of Appeal of the Namibian Supreme Court reversed a decision by Windhoek High Court Acting Judge Kobus Miller to award damages to a man whose leg was amputated after he was accidentally shot in the upper part of his right leg at Luderitz on April 12, 2013.

Ivan Kasingo was shot with the bullet, fracturing his right femur and causing some vascular injury, which obstructed blood flow to the injured limb.

The shooting happened in Luderitz on April 12, 2013 at around 04h00. He was first attended to by a certain Dr Marais in Luderitz, who diagnosed the vascular injury, which required prompt action. It was then decided to airlift Kasingo to Windhoek for treatment.

Upon his arrival at Katutura State Hospital, he was seen by a certain Dr Domingos who did not treat the vascular injury and made a wrong diagnosis that Kasingo's leg was warm with strong pulses, while as a matter of fact it was cold with weak pulses.

After Kasingo was transferred to Windhoek Central Hospital and was attended to by a specialist surgeon, it was discovered that the leg was in rigor mortis.

It was however, decided to try and repair the injured artery, but that attempt came to naught and as a result of the toxins from the dead tissue, Kasingo became feverish and the leg had to be amputated to save his life.

Kasingo then instituted legal action against the Minister of Health and Social Services and the Superintendent of the Katutura State Hospital.

The Health Minister opposed the claim and denied there was negligence on the part of anybody who dealt with Kasingo while he was at the Katutura State Hospital. It was also denied that there was a connection between the conduct of the hospital's staff and the amputation of Kasingo's leg.

In his judgment, Judge Miller said there was no doubt that the diagnosis by Dr Domingos was wrong, but that a wrong diagnosis does not necessarily mean negligence. The judge however found that there was a direct link between the wrong diagnosis of Dr Domingos and the amputation of the leg.

This he based on the evidence of Dr Nel, a specialist surgeon, who testified if the vascular injury was treated in time it could have saved the leg of Kasingo.

According to the judge, the amputation became necessary simply because the surgery to repair the injured artery was performed too late.

As a result, the judge said, the minister was liable to compensate the plaintiff for such damages in such amount as may be agreed between the parties or determined by the court.

The judge further ordered that the Minister pay the legal costs of Kasingo.

During the appeal hearing, the State called Dr Ludwig Walters, an orthopaedic surgeon to dispute the testimony of Dr Jeremy Nel, a vascular surgeon who testified that Kasingo's leg could have been saved if the right diagnosis was made at the start.

According to Dr Walters, there was nothing any of the medical officers on duty at the time of the incident could have done to save Kasingo's leg.

Be based this on the fact that too much time lapsed since the incident and the arrival of Kasingo at the hospital.

Judge of Appeal Elton Hoff who wrote the judgment with the concurrence of Deputy Chief Justice Petrus Damaseb and Acting Judge of Appeal Yvonne Mokgoro found that the High Court had to be satisfied the expert witness has considered comparable risks and benefits and has reached a defensive conclusion.

According to the Supreme Court, it is wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support.

According to Judge Hoff, Kasingo failed to prove on a preponderance of probabilities that there was any negligence on the part of the hospital or its staff or that if there was negligence it was the cause of the amputation and set aside the award without any cost order.

Source: New Era Newspaper Namibia