Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers

8 April 2022 · Carmel Rickard

Women’s reproductive rights include more than access to safe, affordable abortion and contraceptives. These rights are also about proper state care for any associated surgical procedure, for example, along with state obligations not to deny access to services that only women require, and to ensure the good quality of such services. The high court in Gaborone, Botswana, has just delivered an important decision related to this question, holding the state accountable for the shoddy treatment of a women who underwent a hysterectomy. Her treatment, both during the operation and afterwards, has caused serious physical and mental problems. The court found there was medical negligence and lack of proper post-operative care and, with some strongly-worded criticism of the way she was treated, awarded her P400 000.

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The woman in this case, GMJ, needed a hysterectomy and it was to be carried out in Serowe, at the Sekgoma Memorial Hospital. At the time, she was not yet 50, married and a senior secondary school teacher.

Before the operation, she signed a consent form, having been advised that the operation involved removing her uterus and that, as a result, she would not be able to have children.

The operation was carried out on 15 September 2012 and she was discharged two days later, given medication, advised on how to clean the wound and told to visit any health facility, 10 days afterwards, to have the stitches removed.

Excruciating

On 27 September she had the stitches out at a local clinic, and it seemed that the wound had healed. But that very night she began to experience excruciating pain that marked the start of a horrifying phase in her life.

Moved from one hospital to another, with liquid leaking from her body, she was eventually given some antibiotics, and heavy-duty pads to cope with the liquid.

About a week later she was eventually discharged, the fluid still leaking, with a supply of maternity pads and antibiotics.

Catheter

She was readmitted on 12 October 2012. At this point a catheter was inserted and she was given adult nappies to use. The leakage would stop ‘eventually’, she was told.

She was never counselled about how to cope with the catheter that hung down between her legs and the constant flow of urine that made her body smell bad. Her husband would not sit next to her and at night he slept on the floor to avoid the smell. Their relationship was sorely tested.

She started teaching again, still using the diapers and a catheter, but she had to go home frequently during the day to change.

Fistula

She was readmitted to hospital on 24 October 2012 for a week, the catheter still in place. On discharged she was asked to return on 9 January 2013. On 17 December 2012 she went back to hospital where she saw two doctors. They explained that at the time of the operation her ureter had been injured. She was referred to a gynaecologist in Francistown. That doctor in turn referred her to another specialist who diagnosed a utero-vaginal fistula but explained that the hospital did not have the equipment needed to repair the injury and referred her to a hospital in South Africa.

There, the specialist found that there were two holes, one of which had healed and the other of which was still in the process of healing. It was repaired and she returned to Botswana.

In the meantime, her life had undergone traumatic changes. Her stress levels reached such a point that she had to take blood pressure medication, something that she had not needed before the botched operation, but which she now takes permanently. There was also evidence that she had suffered a minor stroke as a result of her blood pressure problems.

Divorce

Her continuing physical condition caused her marriage to break down and she and her husband were divorced.

She is still experiencing urinary incontinence, with all the difficulties that implies, and has to ‘endure the persistent smell of urine’.

An expert witness gave evidence via a video link, explaining how such an operation ought to be carried out and the detailed planning and preparation that were required.

Records

The specialist gynaecologist said that he had seen GMJ at his rooms in Pretoria, SA. He studied her records and found them incomplete and ‘poorly maintained’ by the doctors who attended her. There were no results shown for the tests done, there was no record of a PAP smear (a test that should have been carried out before the operation). There were no notes about the operation itself, and the names and qualifications of the doctors who operated on her were not recorded.

He also testified that the urine leakage was chronic ‘and that the constant smell of urine on her was demeaning’ to such an extent that she needed clinical counselling. He found aspects of her post-operative care were ‘startling’.

A clinical psychologist who gave evidence in the case said GMJ suffered from mental anguish as a result of the operation. He explained the mental health problems she continues to endure and said she needed professional counselling.

Limited resources

The sole witness for the state said that in his view the woman’s treatment was ‘sufficient’, ‘except that it was done at various hospitals by different specialists’. He also said that she had been sent to SA for further management because of the ‘limited resources’ available at government facilities in Botswana.

His view was that there had been no negligence during and after the operation. Developing a complication did not necessarily mean there had been negligence.

In his decision, Judge Michael Leburu said that the identity and qualifications of the team who carried out the operation were ‘unknown’ and that the state had not provided any evidence about their identities. He added, ‘The absence of the identity of the person who performed the operation, in my view, is unpardonable, viewed through the prism of medical protocols and ethics’.

Source of truth

Records were essential for the proving that treatment or an operation was carried out properly. ‘The records are the source of the truth.’ They also satisfied legal and ethical obligations and were ‘the best alibi for medical professionals when sued for malpractice’.

Failure to document was a breach of the standard of care expected from a medical professional. None of the essential steps for such an operation, as outlined by the expert witnesses, was recorded by the person who performed the operation.

The judge said the lack of any record explained the ‘trial and error approach’ used by the health authorities when they tried to diagnose what had happened during the operation and what to do next. Basic tests, not requiring sophisticated and expensive resources were not carried out. And the prolonged delay in reaching a proper diagnosis mean that the woman’s ‘suffering continued unabated’.

Consent form

Doctors had failed to properly diagnose the injuries sustained during the operation and the court concluded that the post operative care fell short of the standard of what would be reasonable in such a case.

The judge also dealt sharply with a crucial argument put up by the state against the woman being successful in her claim: she woman had signed a consent form for the operation. Judge Leburu commented that the woman’s signature on the consent form to undergo the operation ‘did not mean that she was consenting to negligence’, and the fact that she had signed the form did not absolve the state from liability.

GMJ’s claim was based on the mental and emotional anguish she suffered, along with shock and pain, and the drastic way her life was affected ‘by the negligent cutting’ during the operation and the failure to provide timeous and adequate care afterwards.

Dignity

For all these reasons, the judge awarded her P400 000 as well as her legal costs.

The outcome of the case was welcomed by the Southern African Litigation Centre (SALC). Tambudzai Manjonjo, SALC deputy director, said the case highlighted the serious issues affecting women who needed reproductive healthcare in hospitals. ‘We hope the outcome will make a significant contribution in affirming the importance of upholding their dignity,’ she said.

The woman was represented by Kelebogile Kewagamang of Kewagamang Legal, and supported by the SALC.

Carmel Rickard

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