K.X v Member of the Executive Council for Health, Western Cape (5088/2017) [2021] ZAWCHC 200 (13 October 2021)

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[2021] ZAWCHC 200
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K.X v Member of the Executive Council for Health, Western Cape (5088/2017) [2021] ZAWCHC 200 (13 October 2021)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO:
5088/2017
In the matter between:
K[....]
X[....]
Plaintiff
and
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH,
WESTERN CAPE
Defendant
Bench: P.A.L. Gamble, J
Heard: 12, 13 & 14 October 2020; 9, 10 &11 February 2021; 17
& 18 March 2021.
Delivered: 13 October 2021
This judgment was handed down electronically by circulation to the
parties' representatives via email and release to SAFLII. The
date
and time for hand-down is deemed to be 10h00 on Wednesday, 13 October
2021.
JUDGMENT
GAMBLE, J:
INTRODUCTION
1.
At 02h16 on 27 June 2006 the plaintiff gave
birth to her second child, a baby daughter called S[....], (‘the
child”)
at the Mowbray Maternity Hospital in Cape Town.
Subsequent to her birth, the child was diagnosed with cerebral palsy,
which the
plaintiff attributes to the substandard medical care
rendered to her prior to the birth. The plaintiff now seeks damages
from the
defendant (“the Province”), in both her personal
capacity and on behalf of her child, as a consequence of the alleged

negligence of the Province’s nursing staff who treated her in
the perinatal phase of her pregnancy at an obstetric clinic
run by
the Province.
2.
By agreement between the parties, the
question of the quantum of the plaintiff’s claims is to stand
over and the Court was
requested to determine only the merits of the
matter. In a special plea delivered by the Province together with its
plea on the
merits and quantum, it is alleged that the plaintiff’s
personal claim has prescribed, the summons in this matter having been

served on the Province on 22 March 2017 – almost 11 years after
the event. The plaintiff did not replicate to the special
plea, which
falls to be determined together with the claim on the merits.
3.
During the trial, the plaintiff was
represented by Mr. A.D. Schoeman SC of the Grahamstown Bar and Ms. N.
Mashava of the Cape Bar,
while Ms. M. Adhikari of the Cape Bar
represented the Province. After the completion of several days of
evidence rendered in open
court, the matter was argued virtually in
March 2021. The Court is indebted to counsel for their comprehensive
heads of argument
which have assisted in the preparation of this
judgment.
THE APPLICABLE LEGAL PRINCIPLES
4.
The approach in our law to the plaintiff’s
claims is not controversial. It is trite that in order to succeed in
her delictual
claim for damages, the plaintiff must establish that
the wrongful and negligent conduct of the Province’s nursing
staff,
acting within the course and scope of their employment, caused
her harm.
[1]
5.
In
Oppelt
Cameron J, (for the minority) provided the following useful summary
of the approach to matters of this nature with reference to
Kruger
v Coetzee
,
[2]
“
[106]
In our law
Kruger
embodies the classic test. There are two steps. The first is
foreseeability - would a reasonable person in the position of the

defendant foresee the reasonable possibility of injuring another and
causing loss? The second is preventability - would that person
take
reasonable steps to guard against the injury happening?
[107] The key
point is that negligence must be evaluated in light of all the
circumstances. And, because the test is defendant-specific
(‘in
the position of the defendant’), the standard is upgraded for
medical professionals. The question, for them, is
whether a
reasonable medical professional would have foreseen the damage and
taken steps to avoid it. In
Mitchell
v Dixon
[3]
the
then Appellate Division noted that this standard does not expect the
impossible of medical personnel:
‘
A
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill,
but he is bound to employ reasonable skill and care; and he is liable
for the consequences if he does not’
[108] This means that we must
not ask: what would exceptionally competent and exceptionally
knowledgeable doctors have done? We
must ask: ‘what can be
expected of the ordinary or average doctor in view of the general
level of knowledge, ability, experience,
skill and diligence
possessed and exercised by the profession, bearing in mind that the
doctor is a human being and not a machine
and that no human being is
infallible. Practically, we must also ask: was the medical
professional’s approach consistent
with a reasonable and
responsible body of medical opinion? This test always depends on the
facts. With a medical specialist, the
standard is that of the
reasonable specialist.”
6.
While in
Oppelt
the court was required to assess the expertise and conduct of an
orthopaedic surgeon and a neurosurgeon employed in a state hospital,

I consider that the approach advocated by Cameron J may be applied
pari passu
to midwives and nurses employed at a dedicated obstetric clinic run
by the Province, where a degree of expertise in the handling
of
pregnancies and the delivery of children through natural child-birth
was manifestly necessary.
7.
In this regard, the Court was told that
such units are staffed exclusively by midwives and nurses –
there are no doctors present
– who attend to the delivery of
babies at the clinic day in and day out, 365 days a year. It is only
when the case demands
a higher level of care than that which can be
provided at the obstetric clinic, that the mother is referred to a
hospital for the
intervention of a doctor.
Mtetwa
is authority for the liability of the Province for the negligence of
its employees and I did not understand Ms. Adhikari to take
issue
with the manner in which the professional conduct of such staff (
qua
nurses and mid-wives) is to be
assessed.
8.
As to the level of care that the plaintiff
was entitled to demand of the nursing staff at the MOU,
Collins
[4]
provides a useful summary of the applicable test. The case involved
the insertion by a nurse of a tracheostomy tube into a 16-week-old

baby whose breathing was compromised and who required ventilation.
The nursing staff in the unit where the baby was being treated
were
required to have training and experience in specialist care of
paediatric tracheostomy patients. The learned Judge made the

following observation.
“
The
question that arises is whether the failure on the part of the
hospital staff promptly to replace the tracheostomy tube amounted
to
negligence in the circumstances. It is trite law that a patient in
the hospital is entitled to be treated with due and proper
care and
skill. The degree of care and skill that is required is that which a
reasonable practitioner would ordinarily have exercised
in South
Africa under similar circumstances (see
Dube
v Administrator, Transvaal
1963
(4) SA 260
(W)). The need for particular care and vigilance in the
case of pediatric tracheostomy patients is obvious. Not only is the
possibility
of accidental decannulation readily foreseeable, but
unless immediately remedied the consequences are fatal. Indeed, this
need
for care and vigilance is reflected in the staff allocated to
the tracheostomy unit.”
In my view, the plaintiff was thus entitled to demand that she and
her unborn child be treated with the requisite degree of care
and
expertise expected of a duly qualified midwife.
9.
As will appear later, there was a series of
guidelines published in 2000, which set the standard of care expected
in 2006 for maternity
care in clinics, community health centres and
district hospitals countrywide. It is not in dispute that the
Province’s nursing
staff at the clinic were obliged to treat
the plaintiff in accordance with those guidelines and that if they
failed to do so their
conduct might establish negligence. Whether
there was in fact such negligence is ultimately for the Court to
determine, having
had regard to the expert opinion placed before
it.
[5]
AN OVERVIEW OF THE MEDICAL EVIDENCE
10.
The plaintiff testified personally in
regard to both the merits and the special plea. She further presented
the evidence of two
expert witnesses from Durban, Dr. Ashraf Ebrahim,
a specialist gynaecologist and obstetrician, and Dr. Yatish Kara, a
paediatrician.
The Province presented the expert evidence of Dr.
Michael Wright, a Cape Town specialist gynaecologist and
obstetrician. There
was no evidence from any of the Provincial staff
who treated the plaintiff and the child and the parties’
experts relied
heavily on contemporaneous nursing notes and reports,
test results, tables and similar documentary evidence for their
respective
opinions.
11.
It should be stated at the outset that the
three medical specialists who testified are highly experienced
practitioners who discharged
their functions as expert witnesses in
accordance with the time-honoured principle that they were there to
assist the Court in
understanding the medical concepts inherent in
the evidence and were not called upon to determine whether there was
negligence
on the part of the Province’s employees nor to
support the version contended for by the party calling them
[6]
.
The Court is indebted to the doctors for their assistance in
determining a difficult case.
12.
The plaintiff procured a report dated 26
April 2019 from an expert radiologist in Cape Town, Dr. Bates Alheit,
who analysed an MRI
scan of the child taken on 19 April 2017 for
purposes of determining the cause of her cerebral palsy. The original
MRI report was
prepared by a certain Dr. Shalen Misser of Durban
after Dr. Kara advised in a medico-legal report dated 22 January 2016
that such
an investigation was advisable. At the trial the plaintiff
preferred to call a local radiological expert to analyse the scan and

Dr. Alheit was effectively substituted as an expert for Dr. Misser.
Both parties accepted the opinion expressed in Dr. Alheit’s

report which was admitted into evidence without more.
13.
The approach of the Court in evaluating the
expert evidence of Drs. Ebrahim, Kara and Wright placed before it was
usefully summarized
in
Medi-Clinic
(with reference to
Linksfield Park
)
as follows.
“
[5] In
para’s 37 -39 [of
Linksfield
Park]
the court held that what is required in the evaluation of the
experts’ evidence is to determine whether and to what extent

their opinions are founded on logical reasoning. It is only on that
basis that a court is able to determine whether one of two

conflicting opinions should be preferred. An opinion expressed
without logical foundation can be rejected. But it must be borne
in
mind that in the medical field it may not be possible to be
definitive. Experts may legitimately hold diametrically opposed
views
and be able to support them by logical reasoning. In that event it is
not open to a court simply to express a preference
for the one rather
than the other and on that basis to hold the medical practitioner to
have been negligent. Provided a medical
practitioner acts in
accordance with a reasonable and respectable body of medical opinion,
his conduct cannot be condemned as negligent
merely because another
equally reasonable and respectable body of medical opinion would have
acted differently.”
BACKGROUND TO THE TREATMENT OF THE PLAINTIFF
14.
The evidence establishes that the plaintiff
(born on 13 March 1985) was aged 21 years when she gave birth to her
second child. The
hospital notes record that there were no problems
with her first confinement some 3 years earlier. During the course of
her second
pregnancy, the plaintiff visited her local antenatal
clinic in Khayelitsha. At such a clinic, a pregnant mother is
customarily
seen and assessed by a midwife. If there are no
complications, the mother will usually give birth to her child at the
clinic –
in this case the Khayelitsha Midwife and Obstetric
Unit (“MOU”) – assisted by a midwife. If the
circumstances
of a mother’s condition are problematic and
demand a higher level of medical care and intervention, she is
usually referred
(and if necessary transported) to the Mowbray
Maternity Hospital (“MMH”). So, for instance, where a
caesarean section
delivery (“a C-section”) is
contemplated, a referral to MMH would be prescribed.
15.
The plaintiff presented for the first time
at the MOU on 20 April 2006 and was examined then and subsequent
thereto on various occasions
by the nursing staff. At approximately
08h00 on 26 June 2006 the plaintiff reported at the MOU in the early
stages of labour. She
remained at the MOU throughout the day where
she was seen by nursing staff from time to time. Eventually at
approximately 00h30
the plaintiff was rushed through to MMH by
ambulance where an emergency C-section was commenced at 01h40 and the
baby delivered
at 02h16. It is common cause that the child’s
medical condition is not attributable to the negligence of any of the
staff
at MMH.
16.
The focus of the case then is on the
treatment of the plaintiff by the Province’s nursing staff
throughout her pregnancy at
the MOU, commencing on 20 April 2006 and
terminating at around midnight on 26 June 2006. Broadly speaking, the
issues can be defined
as –
(i)
whether the Province’s employees at the MOU wrongfully and
negligently
breached the legal duty they assumed towards the
plaintiff and her unborn child to assess, manage and treat them with
the degree
of care, skill and diligence reasonably expected of
reasonably competent nursing staff in their position; and if so,
(ii)
whether the breach of that legal duty was causally connected to the
injuries suffered
by the child.
17.
That enquiry will, in turn, focus, firstly,
on the plaintiff’s general treatment at the MOU during the
period 20 April to
25 June 2006, and then, and more specifically, on
her treatment there during the course of 26 June 2006.
COMMON CAUSE ISSUES
18.
Before traversing the evidence adduced by
the parties, it will be useful to set out the issues which are not in
dispute. I will
revert to the opinion of Dr. Alheit shortly but first
I shall refer to the joint minute prepared by Drs. Ebrahim and Wright
on
6 June 2018. In accordance with the customary practice, the two
experts recorded their points of agreement and disagreement.
19.
The specialists agreed that –
(i)
the plaintiff’s probable due date was not known during her
pregnancy in
2006;
(ii)        it
was unlikely that the child’s cerebral palsy was due to an
antenatal cause;
(iii)       the
plaintiff was admitted to the MOU in early labour on 26 June 2006;
(iv)       the
plaintiff was found to be in active labour at about 20h50 with clear
liquor;
(v)
there was no progress in labour from about 20h50 until about
midnight;
(vi)       the
plaintiff was transferred to MMH for fetal distress;
(vii)      meconium
staining of the liquor was noted at birth;
(viii)     the child had
significant hypoxic ischaemic encephalopathy in the neonatal period
and now has cerebral
palsy;
(ix)       the
management at MMH was standard and the delay in delivery was
attributable to technical
problems.
20.
In relation to the last-mentioned point of
agreement, it bears mention that before the medical staff at MMH
decided to perform a
C-section on the plaintiff they first attempted
a forceps delivery
[7]
but were unsuccessful. Thereafter, three attempts were made at a
vacuum delivery
[8]
but this too failed because the machine malfunctioned. The C-section
was thus the only other option to effect delivery and it was

performed without any problems.
21.
The specialists expressed a difference of
opinion regarding -
(i)
the plaintiff’s probable gestational age during labour;
(ii)        the
quality of fetal heart rate monitoring in labour; and
(iii)       whether
the plaintiff’s intrapartum care was causally related to the
child’s
cerebral palsy and, given the radiological features,
whether anything could have been done to avoid the final outcome.
In relation to the last-mentioned point of disagreement, I understand
the term “intrapartum care” to refer to the medical

treatment and related activity surrounding the actual delivery of the
child.
22.
In relation to points (ii) and (viii) of
their areas of agreement Drs. Ebrahim and Wright touch on two
important aspects. In the
first instance, they agree that the child’s
cerebral palsy was not attributable to any pre-existing condition on
the part
of the mother or of the fetus itself. This is confirmed by
Dr. Kara who states as follows in his report of 22 January 2016.
“
8.1
There are no known preconceptual factors (e.g. maternal mental
retardation, thyroid disease, epilepsy) or antenatal factors
(e.g.
maternal infection including HIV, congenital infections, proteinuric
hypertension, diabetes, prematurity etc.) that could
lead to cerebral
palsy.”
This view was repeated by the doctor in the witness box.
23.
Secondly, Drs. Ebrahim and Wright are in
agreement that the child presented with clear signs of hypoxic
ischaemic encephalopathy
(“HIE”) in the neonatal period
and that she now has cerebral palsy as a consequence thereof. I
understand the neonatal
period to refer to the period immediately
following the birth of the child and lasting for the first few weeks
of life. Encephalopathy,
generally, refers to any disease of the
brain and it is necessary, in this case, to consider HIE, in
particular, as it is accepted
that it caused the child’s
condition of cerebral palsy.
UNDERSTANDING HIE
24.
HIE is dealt with by Dr. Kara in his report
of 22 January 2016 and is described therein as a “subgroup of
neonatal encephalopathy”.
This opinion was also traversed
extensively in Dr. Kara’s evidence and is uncontentious. For
the sake of accuracy, I shall
therefore quote directly from the
report.
“
9.
Neonatal Encephalopathy
9.1 Neonatal Encephalopathy is a
clinically defined syndrome of disturbed neurological function in the
earliest days of life in
the term infant, manifested by difficulty
with initiating and maintaining respiration, depression of tone and
reflexes, sub normal
level of consciousness and often seizures,
usually affecting the full term infant. This term is preferred to
[HIE] as it is not
always possible to document a significant
hypoxic-ischemic insult and there are potentially several other
causes like metabolic
disease, infection, drug exposure, nervous
system malformation etc. Investigation depends on the clinical
presentation.
9.2 HIE is a subgroup of
neonatal encephalopathy. To consider hypoxic ischaemic encephalopathy
to have occurred in the intrapartum
period, there has to be evidence
of neonatal encephalopathy. Before attributing the cause of neonatal
encephalopathy, one has to
consider the probability of other
conditions that may cause an encephalopathy.
9.3 It is most likely that the
neonatal encephalopathy [in this case] was due to hypoxic ischaemic
injury as other causes are mentioned
below and reasonably excluded.”
25.
The finding in para 9.3 of the report was
arrived at by Dr. Kara after discounting the causes of the child’s
encephalopathy
as including meningitis, maternal infection or
intrauterine infection, metabolic or chromosomal disorders, maternal
drug use and
obstetric causes that affect blood flow to the fetal
brain. However, he did recommend that an MRI
[9]
examination be performed on the child.
26.
This radiological examination conducted by
Dr. Misser revealed the following features which are referred to in
the report of Dr.
Alheit.
“
The
MRI features, in the appropriate clinical context, are considered as
diagnostic of an
acute
profound (central) hypoxic ischemic injury
(APHII)
of the brain, as seen from 35 – 36 weeks’ gestation
onwards, now visualized in the chronic stage of evolution
on the MR
scan done at the age of 10 years and 10 months.”
The report by Dr. Alheit is of a technical nature as he explains the
etiology of the diagnosis and the basis for his findings,
but there
is no debate on his finding of the features of an “acute
profound” event.
27.
In considering the nature and extent of
such an event, it suffices to refer to the explanation given by Dr.
Ebrahim in his evidence-in-chief
regarding HIE:
“
That
is abnormal neurological function in the baby at birth as a result of
a reduction in oxygen and adequate perfusion by blood
in the
brain.”
[10]
Later in his evidence-in-chief Dr. Ebrahim, when commenting on the
MRI report, spoke also of
“
a
sudden massive reduction in oxygen supply that gives that kind of
injury on the MRI”.
He opined that such an “acute
decompensation” was likely to have occurred over a period of 20
– 40 minutes based
on the manner in which the injury presented
on the MRI.
[11]
28.
In
Magqeya
[12]
Majiet JA, noting that “(h)ypoxia is a prolonged reduction in
oxygen supply to the brain” and that “(i)schaemia
is a
restriction in blood supply which leads to a shortage of oxygen”
gave the following judicial explanation of HIE which
will provide
some further understanding of the issues at play in this matter.
“
[8] It
was common cause that Kwanga suffered an acute profound hypoxic event
during labour. The experts were agreed that all indications
point to
a global hypoxic ischaemic injury of a catastrophic nature which
resulted in spastic dystonic quadriplegic cerebral palsy.
A hypoxic
ischaemic event can be described as lack of oxygen and inadequate
perfusion of oxygen through the blood to the brain
which causes
damage to the brain. Despite initial vigorous contestation on behalf
of the MEC, it became common cause by the end
of the trial that the
cerebral palsy was caused by an acute, profound hypoxic ischaemic
injury (the injury). The consensus was
brought about by the
conclusions contained in the admitted expert report of Professor Van
Toorn, a paediatric neurologist. His
conclusions were supported by
the findings of Professor Savvas Andronikou, a radiologist who
performed a magnetic resonance imaging
(MRI) scan on Kangwa. His
radiology report was admitted as evidence by agreement. In that
report, Professor Andronikou concluded
as follows:
‘
Features
are those of a chronic evolution of a global insult to the brain due
to hypoxic ischaemic injury, of the acute profound
type, most likely
occurring at term’
.
Professor Van Toorn concurred
with the radiology report that ‘Kwanga’s MRI changes are
consistent with a global hypoxic
ischaemic injury, of a catastrophic
nature, at or around term’.
[9] A brief explanation of the
cause and development of hypoxic ischaemia which injures the brain is
necessary. The fetus is completely
dependent upon the mother for
nutrition and oxygen, transmitted through the umbilical cord from the
mother’s placenta. During
the onset of labour, the contractions
of the uterus (commonly known as ‘labour pains’) affect
the placenta. As the
contractions increase in strength, the blood
vessels in the placenta become constricted and the blood supply to
the fetus via the
umbilical cord contains increasing levels of carbon
dioxide and less oxygen. Monitoring of the fetal heart rate occurs by
means
of a cardiotocograph (CTG), which also measures the uterine
contractions. CTG readings will convey to nursing staff monitoring
the patient three important facets of heart normality: (a) the
average (baseline) heart rate which, as stated, should be between
110
– 160 beats per minute; (b) the baseline variability of the
heartbeat which normally should be between 5 – 10 beats
per
minute; and (c) accelerations in the heartbeat. Early and late
decelerations of the heartbeat are related to contractions of
the
uterus. Late decelerations occur after the commencement of uterine
contractions and recover some time after the contractions
had ceased.
A fetal heart rate below 90 bpm and a series of late decelerations of
the heartbeat are cause for concern, as they
may suggest that the
fetus is in distress. They are referred to in medical parlance as a
‘non-reassuring fetal heart rate’.
Depending on the
severity of the fetal distress, it may be necessary to expedite the
delivery by performing an urgent caesarean
section. Absent timeous
intervention, the increasing levels of reduced oxygen supply to the
fetus (hypoxia) will result in brain
damage.”
29.
There was some debate before this Court
(between the obstetricians in particular) about the nature of the
event which caused the
damage to the child’s brain but
ultimately there was agreement that there was no “single
sentinel event” (for
example, a prolapse of the umbilical cord
or a placental abruption) which caused the acute profound hypoxia in
this matter. Both
doctors accepted that there were late
decelerations
[13]
in the fetal heart rate and that, in association with the plaintiff’s
contractions in active labour, these were the most
likely cause of
the hypoxia.
30.
In his evidence-in-chief, Dr. Wright gave
the following useful explanation of such a deceleration
[14]
.
“
M
’Lord, decelerations mean that slowing of the fetal heart rate
by more than 15 beats per minute. Under normal circumstances
with a
normal healthy baby everything like that, the slight drop in the
oxygen levels during a contraction, causes the fetus to
slow its
heart a bit and then the normal fetus with normal uterine
contractions as soon as a contraction stops, it recovers. So,
it
would be analogous again to you or I holding our breath. If we hold
our breath, we may find our heart rate changes but as soon
as we
start breathing, it will go back to normal. And that’s the same
in the fetus. If the heart rate does not recover almost
inversely
related to the contraction, in other words the deceleration is at its
highest when the uterine contraction is at its
strongest and the
uterine contraction wears off, so the fetal heart rate starts to
recover. So you have a deceleration that is
coincidental with the
uterine contraction and that’s known as an early deceleration
and it’s usually a very benign
event. The late deceleration is
when that recovery does not take place immediately after the
contraction so you will see the contraction,
which would be recorded
on the graph or palpated by the nurse, the contraction stops but the
fetal heart rate still remains slow
and may take 15 to 30 seconds to
come back to normal after the contraction has stopped. That is called
a late deceleration and
that is certainly a far more ominous sign
than an early deceleration…”
31.
The central question, then, in this
case is when this sudden deprivation of oxygen to the fetal brain is
likely to have occurred.
Dr. Ebrahim believed that the brain injury
was sustained in approximately the last hour of pregnancy –
perhaps somewhere
between 01h15 and 02h16 - and gave the following
explanation.
[15]
“
M’Lord,
when the decompensation takes place there is no chance for the fetus
to recover
in
utero
and if delivery doesn’t take place, then the fetus will die
in
utero.
So the only reason that this child survived is because the child was
delivered and received resuscitation in the neonatal unit
so this
injury would have happened in the last hour at the most.”
32.
That explanation by Dr. Ebrahim leads
directly to the primary factual question in this case
viz.
whether the staff at the MOU should
have referred the plaintiff to MMH at an earlier stage during the
evening of 26 June 2006 so
that the HIE might have been avoided by
the performance of an earlier C-section. I shall revert to Dr.
Ebrahim’s evidence
on that score after I have dealt with Dr.
Kara’s testimony regarding the HIE.
33.
Dr. Kara is a paediatrician with vast
experience in the assessment of newborn babies. He took the Court
through his report to demonstrate
the symptoms in the child’s
condition immediately after birth, which he said, were indicative of
an intrapartum hypoxic ischaemic
injury which caused the cerebral
palsy. Given that it is common cause that the child experienced such
an insult in the intrapartum
phase (i.e. during the active phase of
the plaintiff’s labour), it is not necessary to go into Dr.
Kara’s evidence
on that aspect any further.
34.
What is of importance in Dr. Kara’s
evidence, however, is the question as to when, in the stage of active
labour, the injury
was likely to have occurred. Dr. Kara’s
unchallenged evidence on this point is to the following effect.
[16]
“…
Now
if the fetal heart was, if the brain injury had occurred prior to
01:30, it is possible, nothing is possible (sic), but it is
possible
that the injury occurred prior to 01:30 – but then there would
have been a very high probability of this baby being
dead at the time
of birth.
So because we say that in this
type of injury, and the comment was that you have a 45-minute period
to deliver the baby –
yes, that’s to prevent injury. But
you can still have a live baby up to 90 minutes after this type of
injury. And there are
studies that show after certain events where
there’s uterine rupture, etc, they did manage to deliver a live
baby severely
brain damaged at 90 minutes. But beyond that there’s
very little data of babies surviving beyond 90 minutes.
So I can safely say that it is
probable that this baby was injured in the last 90 minutes, and
that’s giving some leeway,
in the last 90 minutes of labour.”
35.
When the Court suggested to the witness
that this would have put the injury at around 00h45 (when the
plaintiff was probably in
the ambulance en route from the MOU to
MMH), Dr. Kara replied –
“
But
having said that, it could have occurred a little later, I don’t
know.”
Dr. Kara’s opinion is consistent with that of Dr. Ebrahim who
suggested that the injury occurred 60 minutes rather than 90
minutes
before birth, the point being that the plaintiff’s experts
believed that the radiological evidence sustained their
contention
that an injury of this sort occurred very late in the pregnancy,
during the active phase of labour and shortly before
delivery of the
infant.
36.
During cross-examination, Ms. Adhikari did
not take issue with Dr. Kara’s estimate of an insult some 90
minutes before birth
but suggested to the witness that the plaintiff
may already have arrived at the hospital by then. He replied as
follows.
[17]
“
It is
possible, but the issue is, were appropriate steps taken prior to the
injury to minimise the risk of that injury.”
37.
That last mentioned remark by Dr. Kara
identifies the focus of this case already referred to - was the
plaintiff cared for at the
MOU with the requisite degree of skill and
care, were reasonable steps taken by the staff there to minimise the
risk of injury
to the child
in utero
and, importantly, were there warning signs of an impending medical
catastrophe which warranted earlier referral to MMH and which
were
not appreciated or adhered to by the MOU staff.
THE ASSESSMENT AND ANTENATAL TREATMENT OF THE PLAINTIFF
38.
As stated earlier, the Province adduced no
evidence from any of its staff employed at the MOU and, consequently,
the obstetric experts
on both sides were obliged to rely on a variety
of nurses’ notes and records (and their respective
interpretations thereof)
for their opinions of the antenatal
obstetric care afforded to the plaintiff. The admissibility of these
records into evidence
was not disputed but one must nevertheless
proceed with caution in assessing the contents thereof precisely
because of the absence
of
viva voce
evidence from the nursing staff. That having been said, the areas of
disagreement were fortunately not extensive and might be summarized

as follows.
39.
Firstly, there is the issue as to just when
during the active phase of labour the acute HIE occurred. While the
plaintiff’s
experts were in agreement that this happened at
most 90 minutes before the birth and were not challenged in regard
thereto, Dr.
Wright subsequently testified that it was probably much
earlier than that. Secondly, there was a dispute as to when fetal
distress
began to manifest in the unborn child and, allied to that,
whether the response of the staff at the MOU was appropriate thereto.

Thirdly, there was an issue around the extent of the plaintiff’s
pregnancy at the time she reported to the MOU on 26 June
2006.
40.
There are really only three documents which
are important to consideration of the issues in this matter. The
first is the record
of the plaintiff’s antenatal attendances at
the MOU in relation to her pregnancy. For the sake of convenience, I
shall call
this document the “MOU Record”.  The MOU
Record is a fairly elementary document drawn up for use by staff
employed
at the “Peninsula Maternal and Neonatal Services”
as a record of a mother’s attendances at an antenatal clinic

(such as the MOU) prior to her going into labour. The contents of the
MOU Record will appear from the discussion of the evidence.
41.
The second document is the Record of
Admission form (“the Admission Form”) which was filled in
when the plaintiff presented
at the MOU on the morning of 26 June
2006 and was first examined by the staff on duty. The document
records the observation of
certain relevant facts and the plaintiff’s
medical condition, as well as that of the fetus.
42.
The third is a large A3 document known as a
“Partogram”. It is a standard
pro
forma
document used to record the
progress of a patient’s labour at the MOU through both the
latent and active phases. The Partogram
is well known to any nurse or
midwife working in an obstetric unit throughout the country and has
standard columns and graphs for
the recordal of vital information
regarding the mother’s condition during labour.
43.
The use of the Partogram is extensively
referred to in the document already referred to and issued by the
National Department of
Health in Pretoria entitled “Guidelines
for Maternity Care in South Africa: A Manual for Clinics, Community
Health Centres
and District Hospitals” (“the
Guidelines”). The document has been revised from time to time
and it was agreed
between the parties that the 2000 edition was in
operation at the time of the birth of the child. While the MOU Record
and the
Partogram cover two distinct phases of a mother’s
pregnancy, the latter has to be considered against the background of
the
former and is informed thereby.
44.
The MOU Record shows that the plaintiff
visited the clinic for the first time on 20 April 2006. Her personal
details reflected that
she was then 22 years of age and had had one
previous pregnancy when she had delivered a 2,9kg son at 40 weeks’
gestation,
without any complications. The plaintiff was in good
health and was screened for the presence of special conditions such
as HIV
and TB, none of which was found to exist.
THE EXPECTED DATE OF DELIVERY
45.
No recordal was made in the allocated space
of the observations of any vaginal examination conducted on 20 April
2006 but the “SF-measurement”
was noted as “34 cm”.
This, said Dr. Ebrahim, refers to the “Symphysis Fundal
Measurement” which is an
external measurement taken by the
examining nurse of the mother’s pregnant abdomen. Using an
ordinary tape measure, the length
of the fetus is calculated by
placing the tape on the pubic bone and measuring up towards the top
of the fetus. The SF measurement
is said to provide a useful,
non-invasive calculation of the age of the fetus.
46.
In the plaintiff’s case, the 34cm
measurement on 20 April 2006 suggested a fetus aged about 34 weeks.
Given that an average
pregnancy lasts around 40 weeks, Dr. Ebrahim
said that this measurement suggested that the child would then have
been expected
to have been born in about 6 weeks’ time –
around 2 June 2005.
47.
Dr. Ebrahim testified further that the
calculation of the age of a fetus (and therefore the expected date of
delivery – “EDD”)
could also be arrived at with
reference to the mother’s last menstrual cycle. Provision is
thus made on the MOU Record for
jotting down the patient’s
“LMP” - in the plaintiff’s case this was recorded
as 13 November 2005. This
translates into a pregnancy of
approximately 23 weeks at the time of her first visit (or “booking”
as the doctor termed
it). There was thus a significant difference of
11 weeks between the two calculations, with the LMP calculation
taking the EDD
into early August 2006. Yet, the nursing staff did not
record anything whatsoever in the place on the form reserved for the
EDD
and manifestly did not appreciate the potential difference in
dates.
48.
As part of the MOU Record, there is a graph
on which the nursing staff can plot the estimated gestational age.
The graph has three
pre-determined parallel lines which respectfully
represent the 40
th
,
50
th
and 90
th
percentiles of the gestational age. This is then calculated by
entering the SF measurement on the graph by placing a dot on the
line
which corresponds with the date of the measurement.
49.
In the plaintiff’s case, the graph
shows that SF measurements were taken on 20 April, 8 and 25 May and
15 June 2006. All of
the dots correspond with the 50
th
percentile of measurement and record that the plaintiff had reached
40 weeks of gestation by 15 June 2006 when the SF measurement
was of
the order of 37cms. In the result, the MOU staff should have known
that on that day the plaintiff had already reached the
term of her
pregnancy (or in medical parlance that she was “at term”).
Furthermore, when the plaintiff arrived at the
MOU on 26 June 2006,
the nursing staff should have been alive to the fact that she was at
a later stage of her pregnancy and needed
to be treated accordingly.
50.
As will be seen later, the plaintiff
arrived at the MOU on the morning of 26 June 2006 in the early stages
of labour and was treated
as she then presented – “at
term”.
[18]
However, the failure of the nursing staff to record the EDD at the
earliest possible opportunity and to provide some indication
as to
when she was expected to give birth would have left the MOU staff in
the dark as to whether the mother was overdue at that
stage or not.
51.
According to Dr. Ebrahim, the plaintiff
might have been as far advanced as 43,5 weeks in her pregnancy, which
presented a potentially
dangerous situation for the fetus. Such a
situation could have indirectly impacted on the development of HIE
through fetal distress
as Dr. Ebrahim explained
[19]
-
“…
.
instead the antenatal nurse’s failure to recognize the
importance of determining her EDD and to be aware that she was
overdue
indirectly resulted in a delay in the diagnosis of fetal
distress and the neonatal complications that ensued. In other words,
they
failed to realise that they were dealing with a possibly overdue
pregnancy at the time that she presented in labour because that
date
was several weeks after her due date as calculated from the first
visit – from her first appearance at the clinic. The
reality,
M’Lord, is that nobody ever knew what her correct due date
was.”
52.
One of the important reasons for
determining the EDD accurately relates to placental function. Dr.
Ebrahim stressed that once the
mother is beyond 42 weeks in her
pregnancy, the placenta is liable to be less effective and that this
in turn can impact on the
blood flow to the fetus and a consequent
reduction in oxygen supply thereto.
“
Now
just as pregnancies that are too premature have certain risks if
delivery occurs too early, there is a different spectrum of
risks
that are present when the pregnancy is overdue and undelivered. And
this is related largely to the fact that the placenta,
the
afterbirth, ages as the pregnancy advances and at the same time the
demands of the fetus are increasing… (f)or oxygen,
glucose and
other nutrients. Principally, in this case we are worried about
oxygen in labour so as the pregnancy goes overdue the
placenta
sometimes, not always, sometimes is incapable of meeting the
requirements of the fetus…
So the placenta is designed
generally to function optimally up to about 42 weeks although most
babies will deliver by about 40 weeks.
And this obviously applies to
healthy women because the placenta can fail if there are problems in
pregnancy so in a healthy person
this is what we would expect in
terms of placental function.”
53.
In his evidence, Dr. Wright said that he
considered that the LMP date was misleading. He held the view that
the bleeding experienced
by the plaintiff on 13 November 2005 (which
she probably mistook as menstruation) might have been occasioned by
the type of contraception
(an injection) the plaintiff had been using
before she fell pregnant and that the LMP was then earlier than
actually recorded.
Dr. Wright, however, held the view that because
the staff at the MOU treated the plaintiff on 26 June 2006 as being
“at term”,
she was not likely to have been beyond 42
weeks, which is the outer parameter of that phrase as it is
understood in the obstetric
setting. This is the phrase that the
staff at MMH also used in their notes.
THE TREATMENT OF LABOUR AT THE MOU – THE PLAINTIFF’S
EVIDENCE
54.
The plaintiff testified that she attended
the Nolungile Clinic in Khayelitsha on 19 April 2006 for purposes of
a consultation regarding
birth control. She was told that she might
in fact be pregnant and was referred to the MOU (which is at
Nonqubela) which she attended
for the first time on 20 April 2006.
After describing how the SF measurement was taken at that first
visit, the plaintiff said
that she returned to the MOU for the three
further visits already referred to – on 8 and 25 May and 15
June 2006. At the
last visit, the plaintiff said that the staff
informed her that the child was “all right.” She
confirmed that she did
not suffer from any illnesses or infections
during her pregnancy and that she did not smoke either during that
time.
55.
At about 07h00 on the morning of Tuesday 26
June 2006, said the plaintiff, she experienced abdominal pain and
went to the MOU where
she arrived at about 08h00. The plaintiff went
on to say that she sat around in the reception area until she was
first examined
at around 10h00, when she was told to lie on a bed.
During that examination, the nurse inserted two fingers into her
vagina and
also listened to her stomach with a “stethoscope”.
This was the phrase used in court by the interpreter but it
seems that the parties accepted that the plaintiff was describing a
“fetus scope” which is a manual listening device, conical
in shape, which is placed on the mother’s abdomen and
through
which the nurse can listen to, and monitor, the FHR. Apparently, the
MOU was not equipped with a cardiotachograph (“CTG”)

which is a more sophisticated electronic device used to measure the
fetal heart rate “FHR”). However, MMH was equipped
with a
CTG.
56.
I pause to mention that, as para 9 of the
judgment in
Magqeya
makes clear, monitoring of the FHR before birth is critical in
establishing whether or not there is fetal distress. As the learned

Judge of Appeal pointed out, of particular importance in that regard
is whether there are any signs of late decelerations in the
FHR after
a contraction. A rate of 90 beats per minute (“bpm”)
would be indicative of such a deceleration. I shall
revert to this
later.
57.
The plaintiff said that after the first
examination at 10h10, she was told the fetus was “all right”
whereafter she
told to sit on a chair again. The plaintiff said she
was similarly examined again at about 15h00 on a bed and then told
again to
sit on a chair. The plaintiff said her next examination was
at around 21h00 when she started feeling strong abdominal
contractions.
Initially the plaintiff said that there was only one
examination by the night staff (around 21h00) before she was taken
through
to MMH, but under cross-examination she accepted that there
may have been subsequent examinations at the MOU that she could no
longer recall. Importantly, though, the plaintiff testified that the
only times that she was told by the nursing staff at the MOU
to lie
on a bed was when she was examined by them. For the rest, she said,
she was told to sit on a chair. This is indicative of
a failure by
the staff to adhere to the Guidelines.
58.
The plaintiff said that an intravenous drip
was inserted into her arm while she was in the ambulance en route to
MMH and that she
was conscious during the C- Section operation,
describing what appears to have been an epidural anaesthetic. She
noted that upon
delivery the child did not cry and that she did not
suckle either. According to the obstetricians and the paediatrician,
these
are the early signs suggestive of cerebral palsy at birth. The
plaintiff’s further evidence related to the special plea of

prescription, which I will discuss under a separate head later.
DR. EBRAHIM’S ASSESSMENT OF THE TREATMENT AT THE MOU
59.
For his expert opinion, Dr. Ebrahim relied
on the Admission Form completed at the MOU at 10h10 on 26 June 2006,
the Partogram contemporaneously
filled in later that day and the
various doctors’ and nursing notes from MMH. Dr. Wright was
content to do likewise, both
specialists being of the view that there
was no better recordal of events than these documents.
60.
It is important, in deciphering the
Admission Form and the Partogram, to understand the phases of labour
– both latent and
active – each of which is characterised
by physiological changes to the woman’s body. Dr. Ebrahim
explained that during
the latent phase, the mother’s uterus and
cervix start to undergo physiological changes which result in the
cervix dilating
(i.e. enlarging) and flattening out so as to become
part of the uterus. As I understand it, the patient’s cervix
dilates
to approximately 3cms during this phase as her body prepares
itself for the passage of the fetus through the “birth canal”,

as Dr. Ebrahim called it. The latent phase is established by the
midwife by having regard to both the initial dilation of the cervix

and, importantly, the presence of contractions.
61.
Later, during the active phase of labour,
the contractions will be more pronounced and, importantly, the cervix
dilates up to 10
cm (ordinarily the full extent of its dilation) in
order that the fetus can be expelled from the uterus via the birth
canal through
the vagina. The dilation of the cervix is usually
monitored by the midwife inserting her fingers into the patient’s
vagina
and estimating the extent of the opening of the cervix.
Obviously, if there is insufficient dilation of the cervix, the fetus
will
be obstructed and unable to freely pass through the birth canal.
When that occurs the health of the fetus may be compromised resulting

in injury thereto. It follows that proper monitoring of the cervix
during labour is important.
62.
The Admission Form reflects that upon her
first examination at 10h10 on 26 June 2006 the plaintiff’s
membranes were intact,
the cervix was dilated at 2-3cm, that she was
thus regarded as being in the latent phase and that she was to be
re-assessed four
hours later. Her temperature, pulse rate and blood
pressure were within normal limits and the FHR was “regular”
at
138 bpm.
63.
The only other entry of relevance on
the Admission Form is a note of an examination at 15h15 that day when
the FHR was recorded
as 140 bpm and “regular”, the
membranes were still intact and the cervix was “still the
same”. Contractions
were recorded as “2 x moderate 1
mild”.
THE PARTOGRAM
64.
The first entry on the Partogram is at
20h50. This signifies that at that stage the MOU staff regarded the
plaintiff as being in
active labour. Dr. Ebrahim expressed concern at
the fact that, firstly, the follow up examination occurred 5 hours
after the initial
examination at 10h10 and that the third examination
took place some 5,5 hours after the second. He pointed out that this
was not
in accordance with the accepted protocol contained in the
Guidelines.
65.
Accordingly, during the latent phase of
labour there should have been 4 hourly vaginal examinations (at 14h15
and 18h15, assuming
the plaintiff was still in the latent phase at
the latter time) and every 2 hours thereafter once she was in the
active phase.
Such examinations would have established the extent of
the cervical dilation. Further, during the latent phase, the FHR
should
have been monitored every 2 hours (at 12h00, 14h00, 16h00 and
18h00) and in the active phase, every half an hour, “before,

during and after contractions.”
66.
Because these protocols were not adhered to
by the MOU staff, the Court does not know just when the plaintiff
entered the active
phase of labour. However, Dr. Ebrahim suggested
that active labour probably commenced at around 18h00 to 19h00 given
that at 20h50
her cervical dilation was recorded on the Partogram as
7cm. The doctor’s conclusion in this regard was predicated on
the
accepted assumption that in active labour cervical dilation
generally occurs at the rate of around 1cm per hour and that active

labour commences when the dilation is at 4cm. I did not understand
Dr. Wright to take issue with these assumptions.
67.
While the Partogram makes provision for the
recordal of relevant medical information during both the latent and
active phases of
labour, there are no annotations whatsoever thereon
during the latent phase, while the first note during the active phase
only
commenced at 20h50. This reflected that there was an “AROM”
(artificial rupture of membranes), which is a procedure
where the
nursing staff would have pricked the membranes through the cervix to
allow the plaintiff’s waters to break. When
this occurred, the
staff noted that the liquor, which was discharged, was “clear”.
68.
The Partogram has a column under the active
phase for the recordal of the FHR, with provision for a measurement
both before and
after contractions. The first such entry was at 20h50
and recorded as 120-130 bpm before a contraction and approximately
110 bpm
after a contraction. Between 21h50 and 22h50 it was measured
at 100-110 bpm after a contraction and between 23h00 and 24h00 at
between 90-100 bpm after a contraction. These were regarded by Dr.
Ebrahim as a clear manifestation of late decelerations in the
FHR, a
situation which he said warranted urgent medical intervention.
69.
However, the notes suggest that it was only
at around midnight (after the measurement below 100 bpm) that the
decision was made
to transfer the plaintiff to MMH. When the
plaintiff arrived at the hospital by ambulance at 01h30, the
receiving doctor’s
notes show that her cervix was fully dilated
and the FHR ranged between 60 and 182 bpm. The obstetricians both
agreed that the
fetus was manifestly in distress at that stage and
urgent action was thus warranted. As already indicated, the hospital
staff responded
by attempting a vaginal delivery by the vacuum method
and when this failed, and they were unable to effect a forceps
delivery,
the plaintiff was taken to theatre at 01h55 for an
emergency C Section.
MONITORING THE FHR
70.
I have already referred to
Magqiya
at [9], where the learned Judge of Appeal discusses the importance of
monitoring the FHR and any decelerations therein. Nevertheless,
for
the sake of completeness, I shall recite the full extent of Dr.
Ebrahim’s explanation in his evidence-in-chief regarding
the
necessity for careful monitoring of the FHR.
[20]
I did not understand Dr. Wright to take issue with this view.
“
(W)ith
each contraction there is a natural constriction of the blood vessels
that are traversing the uterine muscle to get to the
placenta. So,
the uterine vessels are on the surface of the uterus, the placenta is
on the other side of the muscle inside the
womb and the branches of
the uterine artery have to get across this muscle barrier before it
gets to the placenta, and, in contracting
there is a natural
narrowing of these vessels that are traversing the musculature. So,
there is a transient reduction in oxygen
supply to the fetus for the
duration of the contraction and that reduction can be 25% in normal
labour when each contraction…the
amount that gets to the fetus
when the uterus is not contracting is reduced by 25% during a
contraction and that supply is restored
at the end of a contraction
and generally contractions are in strong labour about 40 to 60
seconds long so that’s the duration
of the oxygen deficit with
each contraction, three or four contractions in a 10–minute
interval. But during the resting phase
the fetus regains its supply
and is able to cope with that reduction, a healthy fetus is able to
cope with that reduction. But
if we are to take a healthy fetus and
the labour is prolonged then at the latter stages of labour the baby
may show signs of not
being able to cope because its reserves have
been used up by the hours of labour before that so that distress may
occur in the
latter stages of labour - in the second stage of labour.
On the other hand, it may occur early in labour if a fetus looks
apparently
well but has got some diminished reserve for a reason that
can’t be measured. It just is not able to tolerate the early
contractions
of labour or the contractions in the middle of labour.
So
it’s for that reason that the heart rate must be monitored
closely
during
labour because one never knows when the fetus is not going to
compensate for the effects of the contractions and the only
way we
have of knowing this is by checking the fetal heart rate
and the time when the fetus’ inability to cope is best
displayed is after a contraction because the contraction is the
insult,
the transient insult, and that is the reason for checking it
before and after a contraction. When the baby is very sick then the

heart rate is obviously abnormal even in between contractions but by
that time it is too late. So, in general, babies are able
to
withstand this reduction throughout labour and if there is a sign
from the baby’s side that it is not, the doctor is not
in a
position to know whether that - whether the baby has already reached
the end of its tolerance. That only time tells one…”

(Emphasis added)
71.
In the result, Dr. Ebrahim was critical of
the overall monitoring of the plaintiff. In addition to the fact that
she had not had
the prescribed 2-hourly vaginal examinations prior to
the onset of active labour, he was concerned that with effect from
20h50
the monitoring of the FHR was not in accordance with the
Guidelines. In this regard he testified that the first FHR recordal
at
20h50 was
“
a
doubtful reading and the second [at 21h50] was definitely a
deceleration so there were things that needed to be done at that time

rather than just continue the monitoring after that. I think that’s
the issue that I have with the monitoring.”
[21]
72.
The doctor’s concerns about the lack
of monitoring of the FHR in the active phase must also be viewed in
light of the fact
that the MOU staff had no inkling whatsoever of the
plaintiff’s EDD. Dr. Ebrahim said that it was possible that she
may well
have been post-term when she reported there on the morning
of 26
th
June 2006, a situation which would have warranted a higher degree of
urgency and care in the treatment of the plaintiff and her
unborn
child.
“
I
think, M’Lord that the possibility of baby being a post term
fetus ought to have been at the back of the minds of the staff

looking after her because there was great uncertainty about the due
date and, with the information at hand, this computed to a
due date
of well over 42 weeks. So it would have been prudent to have
exercised vigilance in monitoring this fetus right from the
start. In
fact, the recommendations are that if the pregnancy is post term that
mother should deliver in a hospital rather than
a clinic. So this
mother should have been discussed with the doctor at the base
hospital [i.e. MMH] on admission for a decision
to be made as to
where was the safest place for this mother to labour (sic) right from
the very start.”
[22]
There is no evidence from the Province that this took place and
certainly no note to that effect in the MOU records.
73.
In relation to the FHR monitoring only
having commenced at 20h50, Dr. Ebrahim was critical of the fact that
the plaintiff was not
sent to MMH earlier than 00h30.
“
So you
know, given that she was managed at the clinic she ought to have had
her fetal heart rate checked more frequently, both in
the latent and
the active phase of labour and obviously now with hindsight and
knowing what the outcome of the baby is and looking
at the labour
graph which shows that the fetal heart rate was abnormal
from probably
- well certainly from 21h50 onwards and probably from 20h50 –
there’s a strong possibility that it was
abnormal
even before that.
So
all in all this patient ought to have been sent to the hospital much
earlier than was done in the event
.”
[23]
(Emphasis added)
74.
When asked to speculate at what time the
plaintiff ought to have been referred to MMH, Dr. Ebrahim suggested
that this would have
been shortly after 21h50. He motivated his
opinion as follows.
“
(Y)ou
know the observation at 21h50 (sic - 20h50) is probably a
deceleration. I think it’s a deceleration but it’s open

to interpretation – but the observation at 21h50 is clearly a
deceleration and at that stage given the possibility of her
being
postdates (sic), knowing that one has to refer the patient, which is
going to take an hour, it is safer to pre-empt problems
rather than
wait for a crisis to appear before referring.”
[24]
75.
A further cause for concern in the
treatment of plaintiff’s labour related to the dilation of the
cervix. Dr. Ebrahim observed
that the dilation at 15h15 was measured
as 3cm and at 20h50 as 7cm. The Guidelines indicate that when the
dilatation is of the
order of 4cm, the mother is to be regarded as
having moved from the latent to the active phase of labour and, as I
have noted,
generally there is a 1cm dilatation per hour thereafter
in the active phase. For that reason, said Dr. Ebrahim, he assumed
that
the plaintiff went into active labour around 18h00. It is
axiomatic that because no 2-hourly measurement was taken in terms of
the Guidelines, the staff were unaware as to when the plaintiff
actually went into active labour and, most importantly, when the

half-hourly monitoring of the FHR ought to have commenced.
76.
As I have already noted, the Partogram
contains three transverse parallel lines, designated respectively as
“Base”,
“Alert” and “Action”, on
which the nursing staff are required to record the extent of the
cervical dilation
when measured from time to time. The level of each
recordal is intended to indicate to staff what degree of activity is
required
of them at that stage.  The recordal on this part of
the Partogram reflects that the plaintiff’s cervical dilation
remained
constant at 7cm for around 3 hours - between 20h50 and
24h00. Manifestly, the anticipated hourly increase in dilation of 1cm
was
not occurring and the birth canal remained constricted rather
than opening up to allow the fetus to pass through freely as the
contractions increased. With the dilation remaining fixed at 7cm for
that three-hour period, the labour crossed the “Alert
Line”
without the staff taking appropriate action: it seems that this only
happened when it crossed the “Action Line”
hence the
calling of the ambulance around midnight.
DR. WRIGHT’S EVALUATION OF THE MOU TREATMENT
77.
In his evidence, Dr. Wright agreed that the
Guidelines were not adhered to by the MOU staff in a number of
respects. Firstly, the
doctor acknowledged that there was a failure
to record the EDD and that this omission had an adverse effect on the
management of
the pregnancy.
78.
At p20 of the Guidelines the following is
stipulated in relation to the EDD.
“
It
should be indicated on the antenatal card how the gestational age was
estimated. The first estimation of gestational age,
with
the expected date of delivery
,
will be used for the remainder of the pregnancy and must not be
changed unless some important new information becomes available.”

(Emphasis added)
Dr. Wright agreed that, had the MOU staff done
what was required of them in terms of the Guidelines, they would have
arrived at
an EDD of “early June.”
[25]
In light of the fact that generally accepted practice is to deliver a
fetus by 41 (and at most 42) weeks
[26]
,
when the mother is beyond 41 weeks, under the Guidelines, she should
be referred to hospital for further investigation.
[27]
Given the estimate by Dr. Wright of the EDD of “early June”,
by 22 June 2006 onwards the gestational age of the fetus
exceeded 41
weeks and the plaintiff should accordingly have been referred to MMH
upon arrival at the MOU on the 25
th
.
[28]
79.
Secondly, Dr. Wright agreed that the
monitoring of the plaintiff by the staff at the MOU was not according
to the Guidelines in
various respects. He acknowledged that there was
a failure to conduct four-hourly vaginal examinations with effect
from 10h10,
resulting in insufficient monitoring of the cervical
dilation and, importantly, to establish when the dilation went beyond
4cm
thus placing the plaintiff in active labour.
[29]
80.
The doctor confirmed that there was a
further failure to conduct two-hourly FHR examinations with effect
from 10h10 and half-hourly
FHR examinations after the plaintiff went
into active labour which he also accepted was probably around
18h00.
[30]
81.
Dr. Wright accepted that there was also a
failure to observe the Guidelines at around 18h00 when it was evident
that the plaintiff
had been in the latent phase of labour for 8
hours. He further agreed that the Guidelines expressly provide that
“(t)he latent
phase is prolonged when it exceeds 8 hours”
and that there were specific steps which should then have been
undertaken by
the staff at around 18h00, being -
·
Consideration, and the exclusion, of
other causes of abdominal pain;
·
The exclusion of false labour; and
·
“
After excluding fetal
distress and cephalopelvic disproportion, rupture the membranes
and/or start an oxytocin
[31]
infusion as for the active phase of labour.”
[32]
None of these steps was undertaken at 18h00 and, as demonstrated
earlier, the membranes were only ruptured almost 3 hours later.

Furthermore, there is no indication on the Partogram that fetal
distress was considered by the MOU staff for the purposes of
exclusion,
nor that oxytocin was administered at any stage. In short,
nothing was done to enhance the progression of labour when this was
required under the Guidelines.
82.
But there is more. Once the staff
established that the plaintiff was in active labour, the Guidelines
obliged them to monitor the
FHR more frequently - every half-hour.
Dr. Wright acknowledged the importance of monitoring the FHR in
ensuring the health of the
fetus and agreed that at least from 20h50
onwards the staff failed to follow the Guidelines in this regard
too.
[33]
Under
cross-examination, Dr. Wright agreed that there had been no
monitoring whatsoever of the plaintiff for more than five and
a half
hours (15h15 to 20h50) and, given the importance of regular FHR
monitoring to assess fetal well-being, that this had left
a huge void
in the matter and precluded the MOU staff from having a “holistic
view of how this baby had progressed.”
[34]
83.
Dr. Wright disagreed with Dr. Ebrahim’s
view that there had been a late (or so-called “Type II”)
deceleration
during the 20h50 monitoring of the FHR but agreed that
this was certainly the case at 21h50 and also an hour later at
23h00.
[35]
While agreeing with Dr. Ebrahim that such an injury would usually
take place over a period of anything between 10 and 40 minutes,
Dr.
Wright held the view that the “damage causing event” (as
Mr. Schoeman SC rather aptly termed it in argument) was
more likely
around 23h00 or thereafter. As already noted, both Drs. Ebrahim and
Kara were of the view that this event rather occurred
between an hour
and an hour and a half before the birth, probably at a time when the
plaintiff was at the hospital, or on her way
there. There is thus a
significant difference of medical opinion on this aspect to which I
shall revert later.
84.
When asked by Ms Adhikari in his
evidence-in-chief whether he confirmed that the event was around
23h30, Dr. Wright explained as
follows.
“
Ja I
think that’s where it started then because, M’Lord, if
one looks at all of the evidence that we have that after
that –
at, hang on, 22h50 the fetal heart rate appears to be normal….(t)hen
by 23h00 it is severely abnormal and there
is never another normal
fetal heart rate recorded because the other heart rate which she had
done – that are (sic) entered
on the partogram and the heart
rate when she got to Mowbray are all abnormal. So we don’t have
a period where there was,
as there was previously, a period of
normality after the abnormal fetal heart rate. We have a severe
deceleration and the fetal
heart rate is never again recorded as
being normal….And therefore I cannot see how you can ignore
that as being the time
when this event occurred.”
85.
The central thesis in Dr. Wright’s
evidence then was, accepting that the MOU staff had fallen short in
adhering to the Guidelines
in a number of crucial respects, whether
the damage-causing event could have been avoided through earlier
intervention by the MOU
staff. Both obstetricians agreed that at any
efficient state hospital it would take staff between 45 minutes and
an hour to assess
a pregnant patient, decide on a C-section and take
her to theatre. Added to that is the fact that before the plaintiff
could be
taken to MMH, a specially equipped obstetric ambulance
(colloquially called “The Flying Squad”) would have to
have
been called to the MOU to collect the patient and undertake a
journey lasting at least 20 minutes along Cape Town’s N2
highway
through to Mowbray. One might thus fairly allow 45 minutes to
an hour for the calling of the Flying Squad and its journey through

to MMH. Thus, an allowance must be made for a time lapse of between
one and a half and two hours between the decision being made
at the
MOU to transfer the plaintiff to MMH and the delivery of the child.
The MOU staff would have been aware of these time constraints.
86.
If one has regard to the Partogram, it
would seem that the MOU staff only started making preparations to
send the plaintiff through
to MMH at around midnight: the notes state
that she was evidently given an oxygen mask, an intravenous drip was
put up and her
bladder was emptied. There is also reference on the
Partogram to a certain “Dr. Chiporo” at “MMH”
while
the operation notes for the C-Section reflect that s/he was the
surgeon who performed the procedure. Clearly, the MOU staff were
in
contact with the surgical staff at MMH at that time. Further, there
is a manuscript note at the end of the document that reads
“FSQUAD
ON WAY 00h30 Ref 103”. It is not clear whether this refers to
the fact that the ambulance left the MOU at 00h30
or was called out
to the MOU at that time.
87.
The first indication in the MMH notes
establishing a timeframe is an entry noting that the FHR was measured
with a CTG at 01h15.
It is recorded that there were then Type II
decelerations with the FHR at 60 bpm before, and 182 bpm after,
contraction. The MMH
notes also reflect that the surgeon was called
to review the patient at 01h30.
88.
In the circumstances, the delay from around
midnight (when the decision to refer the plaintiff to MMH appears to
have been taken)
to 02h16 (when the child was delivered) cannot, in
my view, be described as unreasonable in the circumstances. In any
event, I
did not understand either of the obstetricians to complain
about any unnecessary delay or tardiness on the part of the MOU
staff,
the ambulance service or the MMH staff once the decision to
transfer the patient had been made. What really is at issue is
whether
that decision should have been made earlier than midnight.
SHOULD THE PLAINTIFF HAVE BEEN TRANSFERRED TO MMH EARLIER?
89.
The answer to this question is influenced
by various considerations. Firstly, there are the late decelerations
in the FHR which,
it is common cause, had clearly manifested by 21h50
at the latest. Both obstetricians agreed that this was indicative of
fetal
distress and warranted urgent steps being taken to ensure the
well-being of the fetus at that time.
90.
Secondly, there is the common cause fact
that the Partogram records that the plaintiff’s cervical
dilation had remained constant
at 7 cm from 20h50 to 24h00. While the
absence of dilation for 4 hours is, in and of itself, cause for
concern, the real problem
with the evaluation of this observation is
that there was, as already mentioned, no recordal as to when the
dilation increased
from 3 to 4cm and beyond. In other words, the MOU
staff were in the dark as to the danger inherent in the plaintiff’s
failure
to dilate according to the normal pattern, and they seemed
oblivious to the fact that the failure to dilate probably occasioned

an obstruction to the fetus moving from the uterus through the birth
canal.
91.
The 2000 Guidelines contained a section
specifically devoted to the management of “
EMERGENCIES
DURING LABOUR
”. Firstly, they
deal with the evaluation of fetal distress as follows.
“
Fetal
distress
This is suspected when the
following signs are observed:
·
Baseline
fetal heart rate > 160 beats per minute
·
Baseline
fetal heart rate < 100 beats per minute
·
Baseline
variability persistently < beats per minute on a CTG (in the
absence of sedating drugs)
·
Late
decelerations of the fetal heart rate.”
92.
Then the Guidelines prescribe the
management of fetal distress as follows:
“
Management
of fetal distress
1. Explain the problem to the
mother;
2.
Lie the mother in a left lateral position;
3.
Give oxygen by face mask at 6L/minute;
4.
Start an intravenous infusion of Ringers-Lactate to run at
240ml/hour;
5.
Perform vaginal examination for cervical dilatation and to exclude
cord prolapse.
- If vaginal delivery is
imminent (cervix fully dilated) deliver immediately by vacuum
extraction if necessary;
- If vaginal delivery is not
imminent, give hexoprenaline 10 micrograms IV stat and prepare for
immediate caesarean section. Transfer
urgently from a community
health center to hospital.”
93.
The MOU staff, through their failure to
adhere to the Guidelines, had no way of knowing that the plaintiff
was in a prolonged latent
phase of labour by 18h00 at the latest.
Such knowledge, in and of itself, would have alerted the MOU staff to
the necessity (under
the Guidelines) for a referral to hospital at
that stage.
94.
A further factor to be borne in mind is
that, because the EDD had not been fixed or recorded, the MOU staff
had no marker by which
to assess the age of the fetus and they
therefore failed to appreciate that the plaintiff was probably beyond
the usual term of
a pregnancy when she presented at the MOU on 26
June 2006. In this regard, there is, in my view, no particular
significance in
the fact that there are various recordals on both 26
and 27
June 2006 that the plaintiff and/or
the fetus were “at term.” This description has relevance
only to the extent that
it distinguishes the fetus as having fully
developed at birth rather than being premature.
95.
To be sure, the use of word “term”
cannot be employed to establish the age of the fetus with any degree
of accuracy
at birth. The point here simply is that the Guidelines
are clear at p28 where they list a series of risk factors that
warrant “non-urgent
referral to hospital”. One such
factor is “Pregnancy beyond 41 weeks”. Accordingly,
whether the plaintiff presented
at the MOU at 41, 42 or 43 weeks, she
was required to be taken through to MMH without more. Had this
happened, it is reasonable
to infer that her pregnancy would have
been managed by medical staff with a higher degree of competence
using more advanced machines
such as a CTG.
96.
Lastly, it is apparent from the Partogram
that the response of the MOU staff at around midnight was, generally
speaking, in accordance
with the Guidelines, and, as I have observed,
they cannot be faulted for their treatment of the plaintiff at that
stage. But that
is not the issue.
97.
It is suggested by Dr. Ebrahim that the FHR
at 20h50 was a late deceleration, which would have triggered the
emergency response
from staff approximately 3 hours earlier. Dr.
Ebrahim’s view of the fetal condition at this time is, however,
not shared
by Dr. Wright. But both doctors agree that by 22h00 there
was undoubtedly fetal distress. In such event, the plaintiff should
have
been taken through to MMH two hours earlier than she actually
was. And, given the time frames already referred to, had this
happened,
the child would have been delivered about 2 hours earlier –
shortly after midnight.
98.
I have demonstrated that the Province’s
staff at the MOU were in breach of the Guidelines in a number of
material respects.
Some fall outside of the phase of active labour
but are nevertheless cause for concern. At p34 of the Guidelines
there is a warning
to staff in bold which is highlighted with the
image of a ringing bell and which reads –
“
All
findings of maternal condition, fetal condition and progress in (sic
– labour?) must be recorded on a partogram. Failure
to use a
partogram during labour constitutes substandard care.
”
99.
I have shown how the Partogram fails to
record any observations made during the latent phase and during the
active phase there are
only partial recordings which are not in
compliance with the Guidelines. Chief among these is the failure to
check the FHR every
half hour from around 18h00 onwards. This was a
grave shortcoming as this recordal was critical to knowledge of the
well-being
of the fetus. Had that been done properly, it may have
resulted in the staff being alerted to decelerations even before
20h50.
To be sure, they would certainly have had a sound basis to
evaluate the gravity of the 22h00 reading and the need to take
immediate
action under the protocols established under the
Guidelines.
100.
In the result, I am driven to conclude that
there was ample evidence available to the MOU staff to merit a
decision to refer the
plaintiff to MMH by 22h00 at the latest and
that the failure to do so constitutes substandard care of the
plaintiff and a failure
to observe the reasonable level of conduct to
be expected of a midwife employed at the MOU. However, such
substandard care does,
of itself, not constitute negligence: it must
be shown that the failure to adhere to the Guidelines was causally
connected to the
injury suffered by the plaintiff, and, further, that
the employees’ inactivity was wrongful.
CAUSATION
101.
The test for causation (and with particular
reference to cases involving an omission) was dealt with by the
Constitutional Court
in
Lee
[36]
.
The case involved a claim by a sentenced prisoner that the negligence
of the Department of Correctional Services had resulted
in him
contracting tuberculosis (“TB”) whilst incarcerated, the
case being based on an alleged negligent omission by
the department.
Nkabinde J explained the approach as follows.
“
[37]
The Supreme Court of Appeal dealt with the elements of a delictual
claim and confirmed the High Court’s finding regarding

wrongfulness in relation to the responsible authorities’
failure “to have reasonably adequate precautions against
contagion, which was the foundation of the claim.” I agree with
the Supreme Court of Appeal that there was a negligent breach
on the
part of the responsible authorities for failing to maintain an
adequate system for management of TB. The next prong of the
inquiry
is, however, whether the negligent omission caused the applicant harm
– in becoming infected with TB. This is so
because it is only
causal negligence that can give rise to legal responsibility.
[
38]
The point of departure is to have clarity on what causation is. This
element of liability gives rise to two distinct enquiries.
The first
is a factual enquiry into whether the negligent act or omission
caused the harm giving rise to the claim. If it did not,
then that is
the end of the matter. If it did, the second enquiry, a juridical
problem, arises. The question is then whether the
negligent act or
omission is linked to the harm sufficiently closely or directly for
legal liability to ensue or whether the harm
is too remote. This is
termed legal causation.
[39] This element of liability
is complex and is surrounded by much controversy. There can be no
liability if it is not proved,
on a balance of probabilities, that
the conduct of the defendant caused the harm. This is so because the
net of liability will
be cast too wide. A means of limiting
liability, in cases where factual causation has been established,
must therefore be applied.
Whether an act can be identified as a
cause depends on a conclusion drawn from available facts or evidence
and relevant probabilities.
Factual causation, unlike legal causation
where the question of the remoteness of the consequences is
considered, is not in itself
a policy matter but rather a question of
fact which constitutes issues connected with decisions on
constitutional matters as contemplated
by section 167(3)(b) of the
Constitution.
[40] Although different theories
have developed on causation, the one frequently employed by courts in
determining factual causation,
is the
conditio sine qua non
theory or but-for test. This test is not without problems, especially
when determining whether a specific omission caused a certain

consequence. According to this test the enquiry to determine a causal
link, put in its simplest formulation, is whether “one
fact
follows from another.” The test—
“
may
involve the mental elimination of the wrongful conduct and the
substitution of a hypothetical course of lawful conduct and the

posing of the question as to whether upon such an hypothesis
plaintiff’s loss would have ensued or not. If it would in any

event have ensued, then the wrongful conduct was not a cause of the
plaintiff’s loss; [otherwise] it would not so have ensued.
If
the wrongful act is shown in this way not to be a causa sine qua non
of the loss suffered, then no legal liability can arise.”
[41] In the case of “positive”
conduct or commission on the part of the defendant, the conduct is
mentally removed to
determine whether the relevant consequence would
still have resulted.
However, in the case of an omission the
but-for test requires that a hypothetical positive act be inserted in
the particular set
of facts, the so-called mental removal of the
defendant’s omission. This means that reasonable conduct of the
defendant would
be inserted into the set of facts
.  However,
as will be shown in detail later, the rule regarding the application
of the test in positive acts and omission
cases is not inflexible.
There are cases in which the strict application of the rule would
result in an injustice, hence a requirement
for flexibility. The
other reason is because it is not always easy to draw the line
between a positive act and an omission. Indeed
there is no magic
formula by which one can generally establish a causal nexus. The
existence of the nexus will be dependent on
the facts of a particular
case. “(Footnotes omitted; Emphasis added)
102.
Applying that approach to the facts at
hand, the Court must ask itself whether it is probable that the child
would have suffered
an HIE if the staff at the MOU had taken
reasonable steps to refer the plaintiff to MMH at latest 22h00 rather
than midnight.
103.
Dr. Wright accepted that the FHR readings
on the Partogram at 21h50 indicated unequivocally that late
decelerations had occurred.
This was indicative of fetal distress and
the Guidelines required the immediate transfer of the plaintiff to
MMH. Had this been
initiated at around 22h00, it is probable that at
around midnight the plaintiff would have been admitted to the
hospital where
the level of obstetric care was most likely to have
been higher – for instance, there was a CTG machine available
for more
accurate monitoring of the FHR (as in fact took place
between 01h30 and 02h00) and, further, there was a fully equipped
operating
theatre where an emergency C-section could have been
performed at relatively short-notice.
104.
Looking at the matter overall, then, it is
fair to say that the additional two hours potentially available for
the treatment and
assessment of the plaintiff through an earlier
referral to MMH would probably have led to an earlier delivery of the
child through
C–section and the avoidance of the damage-causing
event. In this regard, I have no hesitation in accepting the
uncontested
evidence of Drs. Ebrahim and Kara that the event occurred
about one to one and a half hours before the birth of the child –

at around 00h45 to 01h15. They both explained that if the event
occurred earlier, the child would not have survived and would in
all
likelihood have been stillborn. I cannot fault the logic behind this
assertion.
105.
Dr. Wright’s evidence in this regard
(based on an opinion that was never put to the plaintiff’s
experts, as the defendant
was duty-bound to do
[37]
)
does not make sense. He postulated that the damage occurred at around
23h00 when there were repeated late decelerations indicative
of fetal
distress, thereby suggesting that the earlier transfer of the
plaintiff to MMH would have made no difference as the damage
was
already done.
106.
But the uncontested view on behalf of the
plaintiff is that if that were the case, the child would have been
stillborn. The fact
that the child was born alive but with severe
cerebral palsy is, according to the plaintiff’s experts, rather
an indication
that the damage occurred during a very late stage of
the pregnancy.
107.
Applying the “but-for” test
advocated in
Lee
by considering the mental removal of the omissions on the part of the
MOU staff, I am satisfied that the plaintiff has established
the
factual element of causation. What then remains is whether the
plaintiff has established the legal basis for causation. On
that
score, the question that arises is whether it can be said that the
omission by the MOU staff to transfer the plaintiff to
MMH earlier is
directly linked to the injury sustained by the child or whether the
consequences of their omission are too remote.
108.
The answer to that question is, in my view,
rather self-evident. In order to avoid the damage-causing event, the
plaintiff’s
unduly protracted labour (responsibility wherefore
lay at the door of the MOU staff) had to be brought to an end and the
child
delivered into the world – whether through natural
childbirth with the administration of the necessary drugs to enhance
labour
and the use of specilaised equipment, or through an emergency
C-section.
109.
To borrow from the field of contract law,
“time was of the essence” in the plaintiff’s case
and the sooner action
was taken by the MOU staff in terms of the
Guidelines, the greater the prospect of avoiding injury to the fetus.
In such circumstances,
I am satisfied that the omission by the MOU
staff to act timeously when the proverbial alarm bells were ringing
is not too remote
for purposes of determining causation. After all,
the Guidelines required an immediate referral to MMH when the late
decelerations
were noted and the MOU staff simply ignored the
prescripts thereof.
WRONGFULNESS
110.
In our law, a party’s liability for
an omission only constitutes negligence in circumstances where the
law regards it as necessary
to impose a duty on such person to avoid
negligently causing harm to another, thus rendering the omission
wrongful.
[38]
This approach is utilised by the courts as a measure to regulate the
imposition of liability in cases involving an omission and
is based
on the duty not to cause harm: the focus being on the reasonableness
of imposing liability in any given case.
[39]
111.
With reference to the Constitutional Court
judgment in
Loureiro
[40]
,
Molemela AJ (for the majority) had the following to say in
Oppelt
.
“
[51]
The next inquiry is whether the ‘negligent omission is unlawful
only if it occurs in circumstances that the law regards
as sufficient
to give rise to a legal duty to avoid negligently causing harm.’
In
Loureiro
Van
der Westhuizen J explained that the wrongfulness enquiry is based on
the duty not to cause harm and that, in the case of negligent

omissions, the focus is on the reasonableness of imposing liability.
An enquiry into wrongfulness is determined by weighing competing

norms and interests. The criterion of wrongfulness ultimately depends
on a judicial determination of whether, assuming all the
other
elements of delictual liability are present, it would be reasonable
to impose liability on the defendant for the damages
flowing from
specific conduct. Whether conduct is wrongful is tested against the
legal convictions of the community which are ‘by
necessity
underpinned and informed by the norms and values of our society,
embodied in the Constitution’. “
112.
At the level of precedent, as already
demonstrated above, there have been various cases in which the courts
have held medical and/or
hospital staff liable in delict for
negligently omitting to treat pregnant mothers in circumstances where
their conduct (or, strictly
speaking, the absence thereof) has led to
the child suffering from cerebral palsy at birth. This case,
therefore, does not break
new ground and I did not understand Ms
Adhikari to suggest otherwise. That having been said, wrongfulness
must still be assessed
on a case-by-case basis.
113.
In its plea on the merits the Province
accepted that it was required to –
“
[3.1]
At all relevant times provide [the plaintiff] with appropriate
obstetric and/or other related medical care having regard to
the
conditions and standards prevailing at the time, and having regard to
the nature, extent and severity of her medical condition;
and
[3.2] At all relevant times
exercise reasonable skill and care in administering such obstetric
and/or other related medical care
to [the plaintiff], to the standard
of reasonably competent practitioners in their respective fields.”
Similar allegations are made by the Province in respect of the duties
it owed to the child.
114.
The plea further contains several general
denials of any breach of the duties owed to the plaintiff and the
child. There are positive
assertions that its staff at both the MOU
and the MMH provided the plaintiff and the child with appropriate
obstetric and/or related
medical care and, further, that they duly
exercised reasonable skill and care in the treatment of the plaintiff
and the child.
In addition, the Province has pleaded the absence of
causation
[41]
and the foreseeability of harm
[42]
to the child. There is no plea expressly placing wrongfulness in
issue.
115.
Adopting the view of Cameron J (who agreed
with the aforementioned view of the majority in respect of the
mandated approach to the
determination of wrongfulness in
Oppelt
[43]
),
wrongfulness in this case is “incontestable”. It is trite
that if the Province breached any of the duties of care
that it
admittedly owed the plaintiff and the child, that such breach(es)
would have been wrongful. Molemela AJ put the position
thus in
Oppelt
in which the point in issue was whether the transfer of an
orthopaedic patient should have been undertaken within a four-hour
limit.
“
[53]
In its plea the respondent admitted the existence of ‘a legal
duty to dispense reasonable medical care’. However,
the
respondent disputed the duty to do so within the four-hour cut-off
time and to transfer the applicant within that time to Conradie.
In
the face of an admitted legal duty of care, the applicant needed to
show only that the legal duty was breached.
[54] The respondent’s
admission of a legal duty to dispense reasonable medical care is
properly made. The law requires hospitals
to provide urgent and
appropriate emergency medical treatment to a person in the position
of the applicant. There is no doubt that
the legal convictions of the
community demand that hospitals and healthcare practitioners must
provide proficient healthcare services
to members of the public.
These convictions also demand that those who fail to do so must incur
liability.”
116.
Had the staff at the MOU observed the
Guidelines as they were duty bound to do in terms of the requisite
standard of care owed to
the plaintiff and the child, they would have
appreciated that the plaintiff should have been referred to MMH about
two hours earlier
than she actually was. And, as I have found, had
they so acted, the injury to the fetus would, on a balance of
probabilities, have
been avoided. They did not do so and the
plaintiff is now saddled with the onerous task of rasing a severely
disabled child who
will require constant care and supervision
throughout her life, both as a child and later as an adult. The legal
convictions of
the community manifestly demand that the Province
should shoulder this burden, to the extent that it can be ameliorated
by an award
of damages.
CONCLUDING REMARKS REGARDING THE MERITS
117.
Having regard to the aforegoing, I am
satisfied that the treatment of the plaintiff by the staff of the
Province throughout the
duration of her pregnancy, from the first
clinic visit on 20 April 2006 to the last attendance at the MOU on 26
June 2006, did
not comply with the Guidelines and fell significantly
short of the standard of care to which she was entitled.
118.
It follows therefore that the plaintiff has
established that the staff of the Province were negligent in their
treatment of her
and her unborn child and that such negligence caused
the injuries sustained by the child. The plaintiff is thus entitled
to recover
from the Province, in due course, such damages as flow
from the injuries.
PRESCRIPTION OF THE PLAINTIFF’S PERSONAL
CLAIM?
119.
The summons issued on the plaintiff’s
behalf was served on the Province way out of time – on 22 March
2017. In terms
of s12 of the Prescription Act, 68 of 1969 (“the
Act”) she had three years to do so – hence during June
2009
– whereas the summons was served almost 8 years later. In
the result, the Province filed a special plea of prescription in
May
2017. It is common cause that the prescription point is raised only
in respect of the plaintiff’s personal claim; the
claim lodged
in her representative capacity on behalf of the child has not yet
prescribed.
120.
In view of the provisions of s 12(3) of the
Act read with s 12(1), the onus is on the Province to establish its
plea of prescription
[44]
.Those
subsections read as follows.
“
12.
When
prescription begins to run -
(1)
Subject to the provisions of sub-section (2), (3) and (4)
prescription shall commence to run as soon as the debt is due.
(2)…
(3)
A debt shall not be deemed to be due until a creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable

care.”
121.
Accordingly, in this case the
Province must establish the date upon which the plaintiff obtained
either actual (or constructive
knowledge) that the debt was due to
her by the Province
[45]
.
Actual knowledge is established if it can be shown that the plaintiff
actually knew the facts and the identity of the debtor,
while
constructive knowledge is established if the Province can demonstrate
that the plaintiff could reasonably have acquired knowledge
of the
identity of the debtor and the facts on which the debt arose through
the exercise of reasonable care, the test being what
a reasonable
person in her position would have done.
122.
In
Macleod
the Supreme Court of Appeal stressed that –
“
[13]
It is the negligent and not an innocent inaction that
s 12(3)
of the
Prescription Act seeks
to prevent and courts must consider what is
reasonable with reference to the particular circumstances in which
the plaintiff found
himself or herself.”
The learned Judge of Appeal went on to demonstrate
the correct approach with reference to
Shange
[46]
at [11].
“
In…Shange…this
court had to consider whether a 15-year-old learner who had been hit
with a belt on the side of his
eye by his teacher acted reasonably in
waiting more than five years to institute action against the
teacher’s employer. As
in the present matter, the plaintiff
became aware of the possibility of a claim by chance. He had
initially accepted the teacher’s
explanation that it was an
accident. A family friend noted that he was wearing an eye patch and
suggested that he should approach
the Public Protector. An advocate
in that office advised him of the possibility of a claim against the
teacher. Snyders JA held
that the delay was innocent, not negligent.
She stated:
‘
He
was a rural learner of whom it could not be expected to reasonably
have had the knowledge that not only the teacher was his debtor,
but
more importantly, that the appellant
[i.e.
the MEC as the employer of the teacher]
was
a joint debtor. Only when he was informed of this fact did he know
the identity of the appellant as his debtor for the purposes
of the
provisions of
s 12(3)
of the
Prescription Act.’”
123.
The
plaintiff and her attorney gave
evidence on the question of prescription. When dealing with the facts
relative to the plea of prescription,
the plaintiff testified that
upon her discharge from MMH she was not told anything regarding the
fact that her child might be disabled.
She later suspected that the
child’s developmental milestones were limited but, importantly,
because of her work-related
circumstances, she testified that she did
not see the child regularly.
124.
The plaintiff, who has a Grade 7 education,
was in fixed employment as a farm-worker in Cape Town at the time of
the birth of the
child. When she was about 10 months old, said the
plaintiff, she took the child to stay with her mother at Cofimvaba in
the Eastern
Cape. This was clearly for the sake of convenience
because the plaintiff said she could not cope with two toddlers in
Cape Town
and do a full day’s work.  The plaintiff said
that she thereafter saw the child once a year for three weeks during
June
when she took her annual leave and travelled to the Eastern
Cape. It follows that the plaintiff was thus deprived of the
opportunity
of experiencing her child’s handicap and lack of
development on a day-by-day basis as many other mothers might have
enjoyed.
125.
The plaintiff testified that she noted over
time during these annual visits that the child was not developing
normally like her
other children: she had difficulty swallowing due
to a constricted throat and she could not use an ordinary spoon to
eat. There
were also problems with the child’s mobility and she
could not walk, only crawl.
126.
The plaintiff testified that during April
2014 her mother told her that she had consulted an attorney, Mr.
Mjulelwa, because “(T)he
child wasn’t right”. The
plaintiff said that she first spoke to her attorney in 2016. Mr.
Mjulelwa practices at Mthatha
in the Eastern Cape and he confirmed in
evidence the circumstances under which he received his instructions.
The attorney said
that he then set about the onerous task of
procuring the necessary hospital records and, when these were to
hand, he arranged for
the child to be assessed by Dr. Kara in Durban.
127.
In June 2016, Dr. Kara furnished Mr.
Mjulelwa with a medico-legal report in which he advised the plaintiff
of the possibility that
the child might enjoy a claim. In his report,
Dr. Kara confirmed the diagnosis of HIE and advised that an
obstetrician needed to
be consulted to assess whether there was any
negligence on the part of the Province arising from the treatment of
the plaintiff
in labour. On 18 October 2016, the plaintiff’s
attorney gave the requisite statutory notice to the Province and
thereafter
issued summons in March 2017.
128.
In the result, it cannot be disputed that
the plaintiff acquired actual knowledge of the debt and the identity
of the debtor in
respect of a delictual claim on behalf of the child
in mid-2016, being 10 years after she had been treated at the MOU.
The question
that then arises is whether the Province has established
that, through the exercise of reasonable care, the plaintiff could
have
acquired knowledge of her own claim (and, I stress, not that of
the child) prior to mid-2016.
129.
In the amended particulars of claim, that
claim is formulated as “general damages for severe shock and
the attenuation of
the amenities of life in the sum of R500 000.00”.
There is no further particularity explaining the nature, extent and

cause of the plaintiff’s shock and attenuation of amenities but
this will no doubt be explored should the trial proceed on
the
quantum. On the assumption that the personal claim is primarily
founded upon the child’s cerebral palsy and the consequences

thereof for the health of the child and her development, it would
follow that the plaintiff would only have known that she enjoyed
a
claim for her own injury, and, importantly, against whom such claim
lay, when Dr. Kara filed his report. It is reasonable to
infer
therefore that the plaintiff acquired actual knowledge of her alleged
claim in June 2016.
130.
Has the Province established on a balance
of probabilities that the plaintiff, through the exercise of
reasonable care, could have
acquired knowledge of her claim before
June 2016, such reasonableness being assessed with due regard for the
plaintiff’s
personal circumstances? I think not.
131.
In the first place, the proposition was
never put to the plaintiff under cross-examination and we cannot
speculate what her answer
in that regard would have been. Secondly,
it is significant that the person who initiated the process of
consulting a lawyer was
the child’s grandmother, with whom she
habitually resided for the first ten years or more of her life. The
particular circumstances
in which the plaintiff found herself meant
that she did not have daily contact with her second-born and her
knowledge of her developmental
phases was limited thereby.
132.
But even if one assumes that such
reasonable knowledge could have been acquired by the plaintiff
through the agency of her mother
as the day-to-day carer of the
child, the question that then arises is whether there was an
appreciation on the part of either
the plaintiff or her mother that
the child’s condition was caused by the negligence of the MOU
staff during the plaintiff’s
labour.
133.
The facts of the case demonstrate that the
medical specialists who testified before this Court were divided as
to whether there
was negligence or not. And, that difference of
opinion was based on complex issues of medical science. As Zondo J
put it in
Links
(a claim for medical negligence in which the plaintiff suffered
personal physical injuries and only received advice regarding
liability for the injury long after the event) –
“
[47]….
That opinion was given years after the events in issue. Without
advice at the time from a professional or expert in
the medical
profession, the applicant could not have known what had caused his
condition. It seems to me that it would be unrealistic
for the law to
expect a litigant who has no knowledge of medicine to have knowledge
of what caused his condition without having
first had an opportunity
of consulting a relevant medical professional or specialist for
advice. That in turn requires that the
litigant is in possession of
sufficient facts to cause a reasonable person to suspect that
something has gone wrong and to seek
advice.”
134.
Earlier in that judgment, the learned
Justice noted that it was for the party seeking to rely on
prescription to adduce sufficient
evidence to show that the claimant
had reasonable grounds to suspect that the injuries forming the basis
of her claim were as a
consequence of medical negligence.
“
[42]
There is a further problem with the submission in that it presupposes
that any explanation given to the applicant by the medical
staff
would have identified medical error was the actual or even a
potential cause of his injuries. It is not necessary for a party

relying on prescription to accept liability. To require knowledge of
causative negligence for the test in
s 12(3)
to be satisfied would
set the bar too high. However, in cases of this type, involving
professional negligence, the party relying
on prescription must at
least show that the plaintiff was in possession of sufficient facts
to cause them on reasonable grounds
to think that the injuries were
due to the fault of the medical staff. Until there are reasonable
grounds for suspecting fault
so as to cause the plaintiff to seek
further advice, the claimant cannot be said to have knowledge of the
facts from which the
date arises.”
135.
We know from the evidence of the
specialists that cerebral palsy does not only arise from HIE. As Dr.
Kara’s testimony demonstrated,
there were a number of
pre-existing conditions such as substance abuse on the part of the
mother, maternal infection, intrauterine
infection, metabolic or
chromosomal disorder and meningitis or congenital brain abnormality
on the part of the child that could
have led to cerebral palsy. In
such circumstances, it is not difficult to conclude that the child’s
mother and/or grandmother
did not realise that her impacted
developmental phases were due to some cause extraneous to the birth
of the child. This is all
the more so in circumstances where they
were women with limited levels of education and where the grandmother
had limited access
to medical care. The plaintiff testified in this
regard that the child was taken by her mother to the local clinic at
Cofimvaba
where there no doctors on duty.
136.
In any event, there was no onus on the
plaintiff to adduce evidence that demonstrated her lack of knowledge
of the child’s
condition. That duty rested with the Province
and it took no steps to either put up any evidence on that score or,
at the very
least, to cross-examine the plaintiff in an endeavour to
discharge its onus.
137.
If follows, in my view, that the defendant
has failed to establish that the plaintiff’s personal claim has
prescribed.
CONCLUSION
138.
I am thus satisfied that the plaintiff has
established that the child’s medical condition was caused by
the negligent treatment
of the plaintiff by the defendant’s
employees at the MOU and that the defendant is liable to the
plaintiff for such damages
as she may yet prove in respect of her
personal claim, as well as her claim on behalf of the child. I should
point out, for the
assistance of the parties that I would consider it
appropriate for a
curator boniis
to
be appointed to manage the award ultimately made in this matter, as
it is likely to be considerable and the plaintiff’s
ability to
manage such a sum of money might be limited. Costs will follow the
result, as set forth hereunder.
ORDER OF COURT
A.
The defendant’s special plea of
prescription is dismissed.
B.
The defendant is liable to the plaintiff
for damages in her personal and representative capacities as a result
of the negligent
treatment by the defendant’s employees of the
plaintiff and her minor child, S[....], (born on 27 June 2006).
C.
The damages as aforesaid are to be
established in further proceedings.
D.
The defendant is liable for the plaintiff’s
costs of suit, which costs are to include –
1.
The
costs of two counsel where so employed, including their travelling
and accommodation expenses;
2.
All
reserved costs;
3.
The
costs of all reports, preparation of joint minutes, qualifying
expenses (including travel and accommodation) of the plaintiff’s

expert witnesses in respect of whom notices in terms of
Rule 36
have
been filed.
GAMBLE, J
Appearances:
For the plaintiff
:
Adv. A.D. Schoeman S.C
Adv. N. Mashava
Instructed by Mjulelwa
Attorneys,
Mthatha,
C/o Nonoza Potelwa Attorneys,
Cape Town.
For the defendant:
Adv. M. Adhikari
Instructed by State
Attorney,
Cape Town.
[1]
Mtetwa v Minister of Health
1989 (3) SA 600
(D&CLD) at
606 B-F;
Oppelt v Department of Health, Western Cape
2016 (1)
SA 325
(CC) at [34].
[2]
1966 (2) SA 428 (A)
[3]
1914 AD 519
at 525
[4]
Collins v Administrator, Cape
1995 (4) SA 73
(C) at 81I –
82B
[5]
Medi-Clinic Ltd v Vermeulen
2015 (1) SA 241
(SCA) at [25]
[6]
Michael and another v Linksfield Park Clinic (Pty) Ltd and
another
2001 (3) SA 1188
(SCA) at [40].
[7]
A procedure whereby the fetus is prised out of the vagina using a
forceps tool – similar to a large pair of tongs.
[8]
A procedure whereby a vacuum machine is applied to the fetus’s
head and extraction from the vagina by way of suction is
procured.
[9]
Magnetic resonance imaging – a type of scan that produces
detailed images of the inside of the body through the use of

magnetic fields and radio waves –
www.radiologyinfo.org
.
[10]
Record
p96.4
[11]
Record
pp 148-9
[12]
Magqeya v MEC for Health, Eastern Cape
[2018] ZASCA 141
(1
October 2018). In the minority judgment Majiet JA (Tshiqi JA
concurring) dissented on the facts but his judgment is
uncontroversial
on the issue of the cause and effect of HIE
[13]
Also referred to as “Type II decelerations”.
[14]
Record
p728.4
[15]
Record
p150.11
[16]
Record
pp 532.13 to 533.4
[17]
Record
p 543.21
[18]
The phrase suggests that the pregnancy had reached 40 weeks and that
the mother was ready to deliver.
[19]
Record
p 46.11
[20]
Record
p122.15 – 124.11
[21]
Record
p129.5
[22]
Record
p140.23-141.10
[23]
Record
p145.6-15
[24]
Record
p145.19-25
[25]
Record
655.18
[26]
Record
653.8
[27]
Record
696.17
[28]
Record
p783.5
[29]
Record p778.20 – 779.4; 783.1 – 21
[30]
Record
803.5
[31]
Dr. Wright testified that this is a drug that
causes increased contractions during, and is used to induce, labour.
[32]
Record
795.1 – 798.15
[33]
Record
700.25
[34]
Record
805.22
[35]
Record
721.2 – 723.12
[36]
Lee v Minister of Correctional Services
2013 (4) SA 144 (CC)
[37]
President of the Republic of South Africa v
South African Rugby Football Union and others
2000 (1) SA 1
(CC) at [61] – [65]
[38]
Minister of Safety and Security v Van Duivenboden
2002 (6) SA
431
(SCA) at [25]
[39]
Oppelt
at [51]
[40]
Loureiro and others v Imvula Quality Protection (Pty) Ltd
2014 (3) SA 394 (CC)
[41]
“[9.1] There was no causal connection between the injuries
suffered by [the child], in particular any brain injury which
is
alleged to have resulted in her developing cerebral palsy, and any
act or omission on the part of the doctors and/or the medical
staff
who attended on [the child] and [the plaintiff] at any time.”
[42]
“[9.2] The injuries suffered by [the child], in particular any
brain injury that is alleged to have resulted in her developing

cerebral palsy were not reasonably foreseeable."
[43]
At [97]
[44]
Gericke v Sack
1978 (1) SA 821
(A) at 827D-G.
[45]
Macleod v Kweyiya
2013 (6) SA 1
(SCA) at [9];
Links v
Department of Health
2016 (4) SA 414
(CC) at [24].
[46]
MEC for
Education, KwaZulu-Natal v Shange
2012
(5) SA 313
(SCA)