The recent decision of the Botswana Court of Appeal in the case of GMJ v Attorney General clarifying the limits of the law regarding the prescription of medical negligence claims, is an important decision, not only in general, but as far as women’s rights are concerned. Women who approach health institutions and professionals for assistance with their sexual and reproductive health issues are vulnerable to the vagaries of medical malpractice and often find themselves in dire situations when their rights are violated. Even though in most jurisdictions there are laws that are meant to protect reproductive rights, they are often not stand-alone laws, nor do they have stand-alone avenues for enforcement. Sexual and reproductive health violations, as a result, have to be protected through the use of civil law remedies, like actions for medical negligence.
Civil procedural law has numerous legal technical aspects, and many litigants find themselves caught up in them, creating serious barriers to justice. One very unfortunate aspect, which is common in medical negligence claims, is the issue of extinctive prescription. This is the principle that imposes time limits on the duration of time which a litigant can enforce their rights, and many countries have legislation governing the different periods that apply to various areas. The common trait, however, is that a medical negligence claim is treated as a “debt” which is owed to a litigant and which should be claimed within the prescribed period, failure of which results in the debt no longer being claimable. Often, there are even more stringent time limits that apply to state institutions. Ironically, most women seek medical assistance in state institutions.
The medical field is sophisticated and exclusive to experts. Without advice from a doctor or other medical expert it is often difficult to understand symptoms and causes of sexual and reproductive health problems. And for many women who do not have easy access to doctors it is near impossible to understand enough to formulate a case against negligent medical professionals. It is shocking that women in many instances are even denied access to their own personal medical records. Thus the possibility of being caught up by statutory time limits for instituting proceedings is very high.
In the case of Botswana, the Prescription Act sets out that the “debt” can only be enforced within 3 years of the litigant having become aware of the “injury”, which in itself is pretty complicated language for a lay litigant. GMJ went through a medical procedure which involved the removal of her uterus at a government hospital. A week after the procedure, she found that she was unable to control the flow of urine which was constantly leaking, and she went back to the hospital for assistance. What followed was an inordinately long period of embarrassment, frustration and great discomfort, without getting a satisfactory explanation or more importantly assistance with this problem. She was given a preliminary diagnosis several months later, of a suspected fistula. She subsequently instituted proceedings against the state for medical negligence and lack of proper post-operative care. The case was dismissed by the High Court, on the grounds that she had filed her claim outside of the prescribed 3 years, calculated from the day she first noticed the urine leaking. The court ruled that because she noticed that she had developed a condition, she therefore knew that she had an injury entitling her to make a claim.
The Court of Appeal, however, in a unanimous judgment, ruled that awareness of a problem, or symptoms, without knowing the cause for the symptoms, was not enough to establish who was at fault for her condition, and therefore she would not have had a complete claim against the State. This is an important clarification of the limits of prescription, especially in the context of the prosecution of violations of reproductive rights. A lot of women suffer from symptoms without knowing or having the opportunity of knowing the cause of those symptoms, made worse by the fact that vulnerable and marginalised women very seldom have access to medical advice, let alone expert advice, to assist them in obtaining knowledge. It should be possible, in line with this case, to extend the time within which a woman will be able to prosecute a reproductive health violation where she has sought and not been provided with information about her condition.
It is important to celebrate this important intervention by the courts and provision of clarity on the law of prescription. However, it is a small step in the journey to complete protection of sexual and reproductive rights through litigation. It is submitted that, in order to uphold the rights and access to justice, the idea of these violations being subject to prescription at all should be revisited.