Sostenus Wilherm
A broken surgical needle allegedly left inside a woman’s uterus for more than a decade has landed the government in a N$13 million legal battle after the High Court rejected an attempt to have the medical negligence lawsuit thrown out on prescription.
Else Tsuxus is suing the ministry of health and social services and the government over a surgical procedure at Katutura Intermediate Hospital in February 2016, during which she alleges a piece of a needle broke off and became lodged in her uterus.
In a ruling delivered on Wednesday, High Court judge Thomas Masuku dismissed the state’s special plea of prescription, finding that Tsuxus’ claim had not expired despite the operation having taken place years before she instituted legal proceedings.
The ruling means the N$13 million claim can proceed, although the court has not yet determined whether the ministry of health and its medical personnel were negligent.
According to court documents, Tsuxus was admitted to Katutura Intermediate Hospital on 22 February 2016 after complaining of abdominal pain and excessive menstrual bleeding associated with uterine fibroids. She was scheduled to undergo surgery two days later.
Her claim states that the procedure took a dramatic turn when one of the instruments used during the operation allegedly broke.
“On or about the 25 February 2016 a day after the aforesaid surgical operation, the plaintiff was advised that the surgical operation performed on the plaintiff had gone wrong,” the particulars of claim state.
The document further alleges that “one of the apparatus/needles used” during the operation “had broken off leaving a piece of the needle lodged in the plaintiff’s uterus.”
An X-ray was subsequently conducted, and Tsuxus alleges that she was later informed about the results confirming the presence of the needle fragment.
According to her claim, the doctor allegedly told her that the needle could not immediately be removed but assured her that it would not cause her harm and that she would eventually return to her normal life.
“The broken needle lodged in the plaintiff’s uterus would not cause plaintiff any harm and that plaintiff would soon regain her active lifestyle again,” the particulars of claim state.
She was further allegedly told that after six months she would be able to conceive and bear children without complications.
However, Tsuxus claims that her suffering continued long after she left the hospital.
According to her court papers, she continued experiencing severe abdominal pain and returned to Katutura Hospital for medical reviews.
She alleges that she was given painkillers but that no effective corrective procedure was undertaken to remove the needle or address the cause of her pain.
The claim alleges that medical personnel failed to refer her to a specialist surgeon within a reasonable period after allegedly realising that they could not properly deal with the retained needle.
It further states that the defendants failed to remove the needle, which Tsuxus claims remains lodged in her uterus.
“To date, the aforementioned needle is still lodged in her uterus and the defendants have failed and/or neglected to remove such broken needle,” the particulars of claim state.
Tsuxus is claiming N$13 million in damages, including compensation for emotional shock and trauma, loss of income, permanent physical pain and suffering, loss of enjoyment of life, future medical expenses and an alleged loss of her ability to conceive and bear children.
Her claim places N$4.5 million on alleged permanent physical pain and suffering and N$3 million on the alleged permanent loss of enjoyment of the amenities of life.
The state, however, argued that the lawsuit had been prescribed because Tsuxus knew about the retained needle in 2016 but only instituted legal proceedings in 2023.
The defendants maintained that the three-year prescription period had expired and that the claim should therefore be dismissed.
Judge Masuku disagreed, finding that knowing about the needle was not necessarily the same as knowing that there were grounds to suspect medical negligence.
“The relevant inquiry is whether, at that stage, she had knowledge of the facts from which the debt arose,” Masuku said.
The judge found that although Tsuxus knew about the retained needle, she had allegedly been assured by the doctor that it was too small to pose a danger and that she would recover.
“There is no evidence that, prior to December 2022, she possessed facts which would reasonably have caused her to suspect that the retained needle was attributable to negligent treatment,” the judge ruled.
The court found that Tsuxus only acquired information giving her reasonable grounds to suspect medical negligence in December 2022 after receiving information from the Health Professions Council.
Judge Masuku said the information indicated that the medical practitioner may have acted unprofessionally or negligently, meaning prescription only started running from December 2022.
“As summons was issued on 14 May 2023, the three-year period prescribed by the Act had not expired,” Masuku ruled, adding that “the defendants’ special plea of prescription must consequently fail.”
The court also examined whether the alleged failure to investigate, monitor and treat the retained needle could amount to a continuing wrong.
He drew a distinction between a wrongful act that had already been completed and wrongful conduct that continued over time.
The court found that the continued presence of the needle alone would not necessarily constitute a continuing wrong.
However, the alleged ongoing failure to investigate and properly treat Tsuxus’ condition could potentially amount to conduct that was “not wholly past”.
The High Court dismissed the state’s special plea with costs and postponed the matter to 10 September 2026 for a status hearing before judge Beatrix De Jager.
