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[2011] ZAGPJHC 30
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Khanyi obo P.S.K v Premier of Gauteng (29703/08) [2011] ZAGPJHC 30 (18 February 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA (SOUTH GAUTENG)
JOHANNESBURG
CASE
NO
: 29703/08
DATE
:
2011-02-18
REPORTABLE
(IN
THE ELECTRONIC REPORTS ONLY)
In
the matter between
KHANYI,
THEMBENI MARTHA obo
K,
PS
..
Applicant
And
PREMIER
OF GAUTENG
.
Respondent
J
U D G M E N T
WILLIS,
J
:
[1]
The plaintiff claims in her capacity as the mother of P S K.
The claim arises from alleged negligence on the part of the
Premier
of Gauteng in his representative capacity as the Executive Officer in
overall responsibility for the affairs of the Provincial
Government
of Gauteng.
[2]
The facts in this case are largely common cause. On 2 December
1999 the plaintiff was admitted to the Pholosong Hospital
in Tsakane,
Brakpan, for the delivery of the birth of her minor son P S K.
Her birth was a so-called breech birth.
P became asphyxiated
due to the prolonged birth process, and as a result has suffered
extensive and serious brain injury.
He certainly is permanently
impaired and disabled. For example, he will need fulltime care-giving
throughout his life which will
relate in addition to his being fed,
to his use of the toilet; he will have to be in a wheelchair for the
rest of his life; he
is unable to speak or communicate. In
summary, one has all the facts of a very serious tragedy before one.
[3]
The parties have agreed the quantum of damages in the sum of R9,25
million. Accordingly, it is not necessary for the Court to
adjudicate
that aspect further.
[4]
It is common cause that P's mother, Thembeni Martha Khanyi, was
admitted to the Pholosong Hospital at about 07:25 on 2 December
1999. She was examined and, in the record of the examination,
it is recorded that there appeared to be no abnormalities and
that
everything was in order. It would appear that, shortly
thereafter (probably at around 08:00), Doctor Haacke also performed
an examination on the mother and detected no abnormalities.
[5]
The hospital records indicate that, during the course of that
morning, an abdominal assessment was performed on the plaintiff's
mother, and this indicated that the child, P, was presenting as
cephalic. In lay language, this means that that it would
appear
from the examination that P was head-down in the womb ready to be
born in the normal way, namely coming head-first into
the world.
[6]
For reasons that I will deal with later, that assessment was wrong.
At that stage P would have been in a breech position.
At 11:00
a further examination was done on the mother. The following
notes are made in the hospital record relating to the
examination at
that time:
"Inactive labour,
foetal heart heard, blood pressure 120/80, per vaginal examination
cervix four centimetres dilated, membrane
ruptured ... [something]
draining clear."
and
thereafter a recommendation that she be transferred to the labour
ward. That was signed by a midwife or nursing sister
who, it
would seem, is no longer available to testify, although the exact
reasons for this are not clear.
[7]
It is also common cause that at 13:30 the mother noticed a foot
appearing from what she described as her "private part"
(obviously her vagina in the region of her vulva). Nursing aids
came to examine. They reported the matter to Doctor
Haacke.
He made a note that this was a footling breech. A “footling
breech” refers to the situation where
the baby’s foot has
already emerged from the womb before any other part of its body in
the process of its birth. The mother
was advised not to push.
[8]
For reasons which I shall deal with later, a caesarean operation was
not performed on the mother. The baby was delivered
at
approximately 15:20 and, as a result of this prolonged birth as a
“breech baby”, the baby was unable to get sufficient
oxygen in the process of being born, was indeed purple when he
entered the world, had suffered from asphyxia– which it is
common cause contributed to the very serious consequences with which
this case is concerned.
[9]
The evidence is also that the mother attended the Tsakane Clinic very
shortly before she gave birth and that although at that
time an
examination should have been performed to determine whether the baby
was in a cephalic position ready to be born, this
was not done.
[10]
There was only one expert called in this case to give evidence.
He was a Cyril van Gelderen, a qualified medical doctor.
Everyone was hesitant to call him a retired doctor because, although
he is officially retired, he is far from living a life of
leisure.
He was referred to by counsel as “professor emeritus”.
This would indeed perhaps be a better description
of the man.
[11]
Professor van Gelderen was professor of Obstetrics and Gynaecology at
the University of the Witwatersrand. He holds more
degrees and
professional qualifications than a thermometer. He is highly
experienced and in my respectful opinion gave evidence
of an
excellent quality. His evidence was not challenged in regard to
his expertise. One may therefore safely decide
this case on the
basis of his evidence.
[12]
The professor was critical of the fact that, at the clinic and at the
time when the plaintiff's mother was admitted to the
hospital, it was
not diagnosed that the mother was presenting with a breech birth.
His view was that this should definitely
have been observed.
His evidence was also that, had the presentation in breech been
detected at the Tsakane Clinic, it would
have been a simple matter
for assistance to have been given to the mother in order to turn the
baby so that it was ready for delivery
in the normal way.
[13]
Similarly, had it been determined that the baby was in breech at the
time the mother was admitted to the hospital in early
morning on 2
December 1999, arrangements could obviously have been made and would
have been made to perform the necessary caesarean
operation at the
appropriate time. This would have prevented the tragedy with which we
are now concerned.
[14]
Under probing, Professor van Gelderen conceded that it is possible
(although he was reluctant to excuse it), that the examinations
of
the mother at the early stages of admission to hospital and her being
at the Tsakane Clinic would not have shown up that the
baby was
presenting in a breech position, but he considered it most
unsatisfactory.
[15]
What is concerning to me is that there is a positive record in the
early stages of her admission to the hospital on 2 December
1999 that
the baby was presenting cephalically, in other words the baby was
presenting head downwards. Professor van Gelderen’s
expert opinion (upon a matter which I believe all of us know, in any
event) is that that could not have been the case.
[16]
In other words, a baby could not have been presenting cephalically
and, within a matter of hours in the morning of its birth
having been
presented, being born in a breech position. A baby does not present
head-down immediately before its birth and then
do a somersault
within the womb to be born “foot-down”. Thus, in my view,
and before one goes any further, there was
negligence in an erroneous
recording of the presentation being cephalic. This is serious,
although one accepts that as the dilation
of the cervix was slight -
viz
., between one and two centimetres - a mistake could
perhaps have been made at the time when the mother was examined at
7.25 in
the morning.
[17]
Very much more serious (and, in the end, this is the point upon which
the whole case turns), the mother was examined at 11:00
on the
morning in question. At this stage her cervix was four centimetres
dilated. This self-evidently would have facilitated
a proper
examination of the presentation of the baby in order to determine
whether it was in the correct or normal position for
delivery (i.e.
“head-down”).
[18]
Professor van Gelderen's evidence was emphatic that such an
examination (for the presentation of the head) should have been
done
at that stage. He was also emphatic that had it been done at
that stage, it would have shown up that the baby was in
breech. He
was also emphatic that, at that stage (i.e. the moment a breech birth
was obvious), alarm bells should have been sent
ringing. The
situation would have been urgent. It would have required imperative
attention. The doctors in charge should have been
alerted. The whole
situation should have been closely monitored and observed - which we
know did not occur.
[19]
There was considerable examination of Professor van Gelderen
concerning accepted medical practice. It seems that since
2001
it has been accepted medical practice that the standard recommended
medical procedure upon determination of a breech birth
is that there
should be a caesarean section. In 1999 the position was not so
clear. At that time, the prevailing practice
was that one
should observe the situation very carefully to determine the
appropriate steps to be taken after a close supervision
of events.
[20]
The professor was adamant - and his evidence was not challenged on
this aspect - that in 1999 where there was a footling breech
(as
occurred in this particular case) then a caesarean section would have
been the correct and appropriate medical procedure to
have been
adopted.
[21]
Not only was this Professor van Gelderen’s unchallenged
evidence, but Doctor Haacke, who was the doctor in charge of
the
labour ward at the time, agreed that the appropriate intervention
once a footling breech had been diagnosed would have been
a caesarean
section.
[22]
Doctor Haacke was cross-examined as to why he did not perform a
caesarean section. The medical records indicate that
on that
particular day there were an unusually large number of persons who
actually underwent caesarean sections at the Pholosong
Hospital,
namely three. There was an operation booked from 10:30 in the
morning till 11:50; and another (which is of critical
importance) on
a certain Nomcebo Khumalo, from 14:00 to 15:10; and then a further
operation on one Pinky Mavundla after 15:30.
Clearly, the
operation on Nomcebo Khumalo would have coincided more or less with
the appropriate time to intervene in respect of
the mother of P.
[23]
Doctor Haacke, for completely understandable reasons, has no
independent recollection of these events which occurred a long
time
ago. He concedes that the note as to the reason for the
operation on Khumalo is not particularly helpful and he said
it may
be inaccurate. He said that normally the recorded description
of the reason for the operation as “cephalopelvic”
would
have been such that the plaintiff's mother should have received
priority, but he said one does not know what the situation
was at the
time at 14:00. He was convincing that there may well have been a
fairly simple explanation for his prioritising the
operation on
Khumalo, namely that she may already have been under anaesthetic at
the time that he became aware of the serious footling
breech and
would have had to intervene immediately.
[24]
In any event, there is no reason to disbelieve Doctor Haacke. I
certainly cannot find that, as a matter of probability, he
was
negligent. Nevertheless, as I have said, it is common cause
that, had there been a footling breech diagnosed earlier,
the proper
procedure would have been to perform a caesarean section operation.
This much is clear. This was not only
the opinion of Professor van
Gelderen but also that of Doctor Haacke.
[25]
In summary:
(i) The mother of P
should have been examined at 11:00 to determine whether there was a
cephalic presentation or not; and
(ii) either
this was not done or, if it was done, no record was made of the
finding.
[26]
If the examination had been done and it was found that there was a
breech it was a matter of such critical importance that
it should
immediately have been recorded and the expert assistance of someone
like Doctor Haacke called at that stage.
[27]
Whatever the true position, it is inexcusable that the impending
breech birth of P was not diagnosed at 11:00 and that steps
were not
taken immediately to monitor the situation. The evidence is
clearly that the situation at 11:00 was obviously potentially
very
serious indeed; that the situation should have been closely monitored
and that it should have been managed correctly.
Certainly at
that stage (at 11:00 am), the care and concern for P's mother should
have been prioritised. This was the incontrovertibler
evidence
across-the-board of both the plaintiff and the defendant.
[28]
In the light of this evidence, it seems to me that the probabilities
are that had the staff at the Pholosong Hospital, more
particularly
the midwives, done their job properly at 11:00 am in terms of ,not,
this tragedy could have been avoided.
[29]
Counsel for the defendant referred me to the well-known case of
Mitchell v Dixon
,
1914 AD 519.
Mr
Soni
(who, together
with Mr
Joubert
, appeared for the defendant) also referred me
to the more recent decision of the Supreme Court of Appeal in
Louwrens v Oldwage
, 2006 (2) 161 (SCA) at paragraph [19]
(which also referred to the
Mitchell v Dixon
case with
approval). In addition, the defendant’s counsel helpfully
referred me to Michael Jones'
Medical Negligence
, 3rd edition,
2003 (at paragraph 4-015). The observations in this text were quoted
with apparent approval in the case of
Van der Walt v de Beer
[2005] ZAWCHC 24
; ,
2005 (5) SA 151
(C) (at 160B-C).
[30]
In my view, it is unnecessary to ponder, at any length, the legal
principles concerned. These legal principles are well
known and
the fault of the midwives examining the mother at 11:00 on 2 December
1999 was so basic and so serious and so self-evidently
negligent that
I do not think I need dwell on the matter any further.
[31]
Accordingly the plaintiff has succeeded. The case for the plaintiff
has been proven on a balance of probability. I asked
counsel
for the plaintiff to prepare an order that would reflect the Court's
intention were I to decide in favour of the plaintiff.
He was
also requested to confirm with counsel for the defendant that if the
Court were to make a finding against the defendant,
that the order
would be cast in the correct form. An order is accordingly made
in terms of the draft marked X, but for the
sake of completeness I
will read into the record:
[32]
Judgment is granted in the plaintiff's favour in the following terms.
The defendant is liable
to pay the plaintiff:
1. The sum of
R9,25-million (nine million, two hundred and fifty thousand rands);
2. Costs, which costs are
to include the qualifying fees of the following experts:
2.1 Heather
Hill
2.2
Doctor H Edeling
2.3
Professor L Jacklin
2.4
Basil Logan
2.5
Professor J Bornman
2.6
Doctor G Saloojee
2.7
Doctor L Marais
2.8
Lance Marais
2.9
Doctor D Strauss
2.10
Doctor L Pistorius
2.11
Professor C van Gelderen
2.12
Doctor I Lissoos
3. It is noted that on 19
October 2009 the defendant was ordered to pay the wasted costs of the
plaintiff on the attorney-and-client
scale.
N.
P. WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff:
Advocate
AP
Bruwer
Attorneys
for the Plaintiff:
Austin
Jordaan Inc
Counsel
for the Defendant:
Advocate
V
Soni
SC, (with him Advocate D
Joubert
)
Attorneys
for the Defendant:
The
State Attorney
Date
of hearing: 16, 17, 18 February 2011
Dater
of judgment: 18 February 2011