The Botswana Government has admitted to negligence in a case involving Kgakgamatso Sekgabetlela represented by the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and the state for a wrong HIV diagnosis. The case was heard before Justice Dr. Key Dingake on Thursday 28th of August 2008 at Lobatse High Court.
In an agreed summary of facts, the Government of Botswana agreed that the plaintiff was wrongfully diagnosed as HIV positive, that such false diagnosis was a result of negligence on its part and that the plaintiff had suffered damages as a result of such negligence.
Sekgabetlela sued the Attorney General and the Permanent Secretary of the Ministry of Local government for P500 000.00 for pain and suffering caused by the wrong diagnosis. The wrong test result had nearly wrecked her marriage as her husband accused her of infidelity.
The case will go for trial with regards to the quantum of damages on the 12th of September 2008 where the judge will hear submissions on other cases as this is a test case for Botswana.
The details of the case are that:
- In 2003, Sekgabetlela underwent an HIV test at an antenatal clinic to determine if she would need to be on the Prevention of Mother to Child Transmission (PMTCT) programme.
- Her results were misplaced.
- She was retested together with her husband and she tested HIV positive whilst her husband tested HIV negative.
- She requested a retest and was told: “Do you think you are too smart not to get HIV?”
- After trying on numerous occasions she gave up and enrolled on PMTCT.
- 2 years later was retested as a prerequisite for a Netefatso Study for discordant couples
- She tested HIV negative
- Subsequent tests have consistently confirmed she was HIV negative
BONELA is concerned with the growing number of cases of wrong HIV diagnosis. Last year BONELA represented another client whose nine year old son had been wrongfully diagnosed as HIV positive when she was HIV negative. However, subsequent tests confirmed the son was HIV negative. The lack of tolerance and flagrant disregard for human rights displayed by health service providers in denying people a retest is also a cause for concern as they are denying those they serve the basic human right of access to the health services at their disposal.