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[2012] ZAGPJHC 208
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Ntsele v Mec for Health, Gauteng Provincial Government (2009/52394) [2012] ZAGPJHC 208; [2013] 2 All SA 356 (GSJ) (24 October 2012)
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REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2009/52394
DATE:24/10/2012
In
the matter between:
LUNGILE
NTSELE
....................................................................
Plaintiff
and
MEC
FOR HEALTH, GAUTENG PROVINCIAL
GOVERNMENT
...........................................................................
Defendant
J U D G M E N T
MOKGOATLHENG
J:
INTRODUCTION
(1)
The plaintiff has instituted action on behalf of her minor child A
against the defendant for damages arising from the alleged
negligent
medical treatment accorded them by the defendant’s employees
during 1996 at Zola Clinic (“the clinic
”
)
and Baragwanath Hospital (”the hospital
”
).
(2) The plaintiff alleges
that the nursing staff at the clinic in the negligent breach of their
duty of care, during the period
of her ante-natal pregnancy care at
the clinic failed to:
(a)
properly monitor her foetal growth;
(b)
monitor the foetal heart beat rate;
(c)
measure and assess the size of her pelvis;
(d)
refer her to a hospital for ante-natal sonar tests; and
(e)
on experiencing labour on 7 September 1996, she attended the clinic
and whilst there, the nursing staff in the negligent breach
of their
duty of care failed to:
(i)
monitor her and the foetus condition properly;
(ii)
administer the Cato Togo Graph (CTG) on her and the foetus;
(iii)
ruptured her membranes under septic conditions; and
(f)
on 7 September 1996 the doctor and the nursing staff at the hospital
in the negligent breach of their duty of care failed to:
(i)
examine and accord her treatment without unnecessary delay;
(ii)
monitor her and the foetus condition without unnecessary delay;
(iii)
monitor her labour contractions and the foetal heart beat rate; and
(iv)
perform a caesarean section when it was expeditiously necessary in
the birth of A.
(3)
Further the plaintiff alleges that the defendant’s employees
did not execute their statutory duty as obliged pursuant
to section
27 of the Constitution of the Republic of South Africa Act 108 of
1996 in that, they failed to provide reproductive
health care to her
and A with the reasonable skill and diligence prevailing in the
medical profession, and as a result A sustained
peri-natal asphyxia
which rendered him a dystonic spastic cerebral palsy quadraplegic.
(4)
At the commencement of the trial, the parties requested the court to
separate the issues of liability and quantum. An order
in terms of
Rule 33(4) was made, consequently, the court was only seized with the
issue of causation and negligence.
THE
NATURE OF THE EVIDENCE
(5)
Because of the exceptional nature of the
circumstances extant in this matter, for the plaintiff to succeed in
her claim;
(a)
the plaintiff
has to establish a prima
facie
case of negligence against the
defendant’s employees, which in turn casts an evidential
rebuttal burden on the defendant to
destroy the probability of
negligence by giving a reasonable explanation that occurred without
negligence being attributable to
the defendant’s employees;
(b)
alternatively, the plaintiff has to: “show that the factual
injurious eventuality happened in a manner which when explained
by
implication carries a high probability of negligence regarding the
defendant’s employees’ conduct; and
(c)
if the evidence shows: “the defendant did, and the plaintiff
subjectively did not completely have within her grasp the
means of
knowing how the clinic and hospital staff administered treatment to
her and her child, as all the crucial specific treatment
facts are
exclusively within the defendant’s employees’ knowledge,
the court is permitted to draw an inference of
negligence by applying the doctrine of res ipsa loquitur.” See
Res Ipsa Loquitur
and Medical Negligence
by
P Van Den Heever and P Casters
THE
PLAINTIFF
’
S EVIDENCE
(6)
Because of the nature of the claim and the view I take of this
matter, it is imperative to fully set out the evidence tendered.
The
plaintiff’s first child A was born on 7 September 1996 by
vertex, her second child N by caesarean section. Before and
during
the course of her pregnancy she was in good health. Her pregnancy was
uneventful. For her pre-natal pregnancy care she attended
the clinic
where all prescribed pre-natal pregnancy tests were conducted with
positive outcomes.
(7)
On 7 September 1996 she experienced labour. She arrived at the clinic
at 05h00. She was attended by two nurses. The foetal heart
beat rate
and labour contractions were not monitored. Her membranes were
ruptured to accelerate birth. In spite thereof, no birth
ensued.
(8)
She was transferred to the hospital. No explanation was proffered for
such transfer. She arrived at the hospital at 08h00. No
doctor was
available to examine and treat her. The nurses did not examine or
treat her.
(9)
She was given her clinic file and instructed to register her
admission. The registration took 2 hours. She was thereafter placed
in a ward. She informed the nurses her membranes were ruptured. A CTG
was applied on her abdomen for 20 to 30 minutes.
(10)
Ultimately a doctor arrived. He engaged the nurses in a discussion.
The doctor examined her, palpitated her abdomen and conducted
a
vaginal examination. The doctor asked if she felt like bearing down
to give birth. She agreed. The nurses assisted her. She “pushed
”
for a long time but failed to give birth to her
child.
(11)
The doctor again engaged the nurses in a discussion. He thereafter
requested her to “push
”
but
still no birth eventuated. Thereafter she “pushed
”
four times without success. The doctor then
performed an epiostomy. After what seemed an eternity she gave birth
to A.
(12)
She immediately noticed that A was not crying nor breathing. The
nurses took A for resuscitation to the theatre. On 8 September
1996,
It was confirmed A had suffered cerebral palsy. A was discharged on
27 September 1996.
(13)
She believes because she was an emergency patient transferred after
her membranes were ruptured, she should have been accorded
prompt
treatment on arrival at the hospital. In her view A should have been
delivered by caesarean section.
DR
HEYNS
’
EVIDENCE
(14)
The size of the baby differs with every pregnancy but the size of the
pelvic passage remains constant. The plaintiff as first
time mother
should have been continuously monitored. A pelvic assessment and
measurement should have been conducted in order to
determine if her
pelvis and cervix were sufficiently adequate to enable her to give
birth by vertex.
(15)
The plaintiff was not referred to a hospital for an ante-natal sonar
scan, which is vital to establish the position and condition
of the
foetus. T
here was no continuous CTG monitoring of the foetal
heart beat rate or the plaintiff’s labour contractions at the
clinic and
hospital.
(16)
During labour it is
important to monitor the foetal heart beat
rate to establish if there is any irregular heart beat rate. The
monitoring of the heart
beat rate establishes the condition of the
foetus and assists the attending doctor to make the correct decision
regarding the delivery
method to be employed.
(17)
The continuous monitoring of the foetal heart beat rate by CTG
is very critical in assessing whether the foetus is not in distress
as a result of insufficient oxygenated blood supply to the foetal
brain. The failure to continuous monitor the foetal heart beat
rate
resulted in the foetal heart completely stopping due to the lack of
oxygenated blood supply to the foetal brain. A’s
failure to
breath and cry was a consequence of him having suffered brain damage.
(18)
The delay in not promptly treating the plaintiff at the hospital, the
delayed and prolonged delivery of A by vertex resulted
in him
suffering hypoxia (the lack of oxygen to his brain) which caused
peri-natal asphyxia rendering him a dystonic spastic quadraplegic.
(19)
The rupturing of the plaintiff’s membranes under septic
conditions and the failure to induce her to give birth, caused
the
nurses to transfer her to the hospital, as such, the plaintiff became
a red flag patient requiring prompt treatment on arrival
at the
hospital.
(20)
Dr Heyns confirmed the critical observations in his
medico-legal-report namely that:
“
The
long hours in labour caused pressure on the umbilical cord and
placenta. The oxygen supply to the foetus and very importantly
to the
brain was reduced and or off completely, and this caused hypoxia.
In
his opinion there is no question about negligence, because the labour
process was poorly handled. A lot of time was wasted and
critical
warning signs were missed. The end result was a brain damaged child
with cerebral palsy and epileptic fits.”
DR
LEFAKANE’S EVIDENCE
(21)
No ante-natal foetal heart beat rate monitoring was conducted
regarding the status of the foetus at the clinic. It was incumbent
on
the nurses to know the foetal heart beat rate at the time the
plaintiff was experiencing labour
because there is
relationship between the foetal heart beat rate and labour
contractions.
(22)
If at the peak of the labour contraction the foetal heart beat rate
decelerates, that points to the possibility of umbilical
cord
compression with the consequential shortage of blood and oxygen
supply to the foetus, resulting in hypoxia and peri-natal
asphyxia.
(23)
The CTG must be continuously applied before and during delivery
because it is the most critical period when the labour contractions
are at their highest intensity. With every incidence of labour
contraction, there is pressure on the sufficient flow of oxygen
which
can possibly result in an incidence of hypoxia.
(24)
The plaintiff’s cephalo-pelvic size was not
assessed with sonar measurements during her ante-natal pregnancy
care. The septicaemia
recorded in the neo-natal summary resulted from
the premature septic rupture of membranes at the clinic. The
infection occurred
between 2 and 6 hours after such rupture.
(25)
Pre-natal asphyxia is not as prevalent in South Africa as peri-natal
asphyxia. Deprivation of oxygen (hypoxia) to the brain
during labour
is the most common cause of peri-natal asphyxia and consequent
cerebral palsy.
(26)
Pre-natal asphyxia is commonly caused by placental factors,
infections, diabetes, foetal cardiovascular abnomalies, respiratory
congenital abnomalies, severe viral and bacterial infections. A’s
birth circumstances are not consistent with the aforementioned
factors because he suffered peri-natal asphyxia.
(27)
The only available hospital record relating to some aspects of A’s
peri-natal asphyxia is the neo-natal admission summary
report
compiled on 27 February 1997. Characteristics of peri-natal asphyxia
forming part of A’s obstetric history extracted
from the now
non-existent obstetric records of A’s delivery included:
an Apgar score of 5 in 1
minute and 7 in 5 minutes; and
the
seizures noted within 12-48 hours of birth.
(28)
The Apgar score of 6 to 7 in 5 minutes represents a critical score
which confirms peri-natal asphyxia. The seizures occurring
on 8
September 1996 confirm peri-natal asphyxia.
The neo-natal
summary report also recorded peri-natal asphyxia, encephalopathy
(brain cell pathology) and hypoxia (the lack of oxygen
to the brain
which results in peri-natal asphyxia).
(29)
The presence of hypoxia is established by the CTG as a
manifestation of an irregular foetal heart beat rate. In that
exigency because
the foetus is in distress and in imminent danger due
to lack of sufficient oxygenated blood supply to its brain, the
attending
doctor is obliged to expeditiously deal with the situation
within five minutes to effect delivery by caesarean section.
(30)
In his opinion the most efficient and quickest way of delivering A
should have been by caesarean section. Peri-natal cerebral
palsy can
occur when the foetal head gets compressed whilst travelling through
the pelvic canal during birth. If the pelvic canal
is small and the
foetal head is forced through, umbilical cord compression occurs.
(31)
The cause of the A’s traumatic birth resulting in him being a
cerebral spastic quadraplegic is attributable to the fact
that during
the long labour process from the rupture of the membranes to the time
he was delivered at noon, there were stages when
his brain had
insufficient amounts of oxygenated blood, and as a consequence,
hypoxia and peri-natal asphyxia occurred.
(32)
The delivery of at the hospital was negligently handled because the
defendant’s employees were dealing with a first time
pregnant
plaintiff in a situation where her membranes were ruptured at the
clinic to accelerate birth, as a result, the plaintiff
was a red flag
emergency patient who needed prompt medical treatment.
(33)
He had recourse to and perused Dr Moshesh’s
medico-legal-report. Dr Moshesh concurs with his conclusion that A
suffered
spastic cerebral palsy quadraplegia commonly associated with
peri-natal asphyxia.
THE
APPLICATION FOR ABSOLUTION
(34)
After the close of the plaintiff’s case the defendant’s
counsel Mr Lengene argued that negligence had not been
proved,
consequently, the court was obliged to grant absolution. He cautioned
the court to guard against being seduced by understandable
sympathy
for A’s traumatic birth which resulted in his cerebral palsy.
In support of the submission counsel referred to the
case of Broude v
McIntosh and Others
1998 (3) SA 60
SCA.
(35)
The defendant’s counsel submitted that the plaintiff had not
shown that the defendant’s employees had failed to
take
reasonable measures to prevent A’s cerebral palsy, further the
plaintiff had not shown that A’s cerebral palsy
was foreseeable
and due to the defendant’s employees’ negligence.
(36)
I am aware of the injunction in Michael and Another v Linksfield Park
Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at par 40 where
it was stated: “This essential difference between the
scientific and the judicial measure of proof
was aptly highlighted by
the House of Lords in the Scottish case of Dingley v The Chief
Constable, Strathclyde Police 200 SC (HL)
77 and the warning given at
89D-E that
“
(O)ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved –
instead of assessing, as a Judge must do, where
the balance of
probabilities lies on a review of the whole of the evidence.”
THE
INCIDENCE OF ONUS
(37)
Given the nature of this action, the defendant’s counsel
misconceives the nature of the incidence of the onus reposing
on the
plaintiff, once the plaintiff has established a prima facie case of
negligence, the defendant bears an evidential burden
to disprove the
probability of negligence by adducing cogent credible evidence
showing that the defendant’s employees accorded
the plaintiff
and A adequate treatment with the skill and diligence prevailing in
the medical profession, further, that A’s
cerebral palsy could
not possibly have been reasonably foreseeable as a consequence
arising from such treatment.
(38)
Further, the defendant bears the rebuttal burden of disproving
causation by showing that A’s brain damage was not attributable
to the defendant’s employees’ negligence, that if it was
caused by hypoxia and peri-natal asphyxia, the treatment accorded
to
the plaintiff by the defendant’s employees’ was certainly
not the cause of such hypoxia and peri-natal asphyxia.
CAUSATION
(39)
Regarding causation, the plaintiff has to show that the defendant’s
employees breached their duty of care, that on a
balance of
probabilities, such breach caused A’s cerebral palsy.
(40)
The plaintiff’s case is based on the essential proposition that
A’s peri-natal asphyxia was a consequence of the
defendant’s
employees’ breach of the duty of care, in having failed to
monitor the foetal heart beat rate to prevent
the hypoxia which
resulted in peri-natal asphyxia and cerebral palsy.
(41)
Although the onus of proving negligence is on the plaintiff, “the
plaintiff does not have to adduce positive evidence
to disprove every
theoretical explanation which is exclusively within the knowledge of
the defendant, however unlikely, that might
be devised to explain
(A’s cerebral palsy) in a way which would absolve the defendant
and his employees of negligence.”
Naude NO v Transvaal Boot and
Shoe Manufacturing Co
1938 AD 379.
(42)
In Monteoli v Woolworths (Pty) Ltd
2000 (4) SA 735
(W) it was held:
“
[25]
It is absolutely trite that the onus of proving negligence on a
balance of probabilities rests with the plaintiff.
[27]
Sometimes, however, a plaintiff is not in position to produce
evidence on a particular aspect. Less evidence will suffice to
establish a prima facie case where the matter is peculiarly in the
knowledge of the defendant.
[29]In
such situations, the law places an evidentiary burden upon the
defendant to show what steps were taken to comply with the
standards
to be expected. The onus nevertheless remains with the plaintiff.”
THE
DUTY OF CARE
(43)
The defendant’s employees had a duty of care to accord the
plaintiff and A obstetric and paediatric care with the reasonable
skill and diligence prevailing in the medical profession in order to
ensure the safe delivery of A.
THE
PLAINTIFF’S PRIMA FACIE CASE OF NEGLIGENCE
(44)
I turn to consider whether the plaintiff has established a prima
facie case of negligence against the defendant’s employees.
The
plaintiff’s evidence stands uncontroverted.
There
is no evidence adduced by the defendant to gainsay it.
(45)
The plaintiff tendered evidence 15 years 5 months after the traumatic
incident. She was unable to give the exact duration of
her labour or
the exact time she gave birth to A. She could only give relative time
estimates regarding these exigencies, but is
certain that her labour
endured for a considerable time and she gave birth in the afternoon.
(46)
Logic and common sense dictates that the plaintiff’s labour and
A’s subsequent birth endured for a longer period
of time than
the few minutes suggested by the plaintiff under cross-examination.
It is unfair and unjust for the defendant’s
counsel without any
cogent evidence from the defendant’s employees regarding the
treatment accorded to the plaintiff or any
reasonable explanation
tendered by the defendant’s employees regarding the
disappearance of the plaintiff’s clinic
and hospital records,
to expect the plaintiff to be precise and specific about the
treatment accorded her at the clinic and hospital
whilst under
anesthesia.
(47)
The plaintiff made concessions regarding the adequate treatment
accorded her and the time frames suggested by defendant’s
counsel, in respect of the duration of her labour and the time she
gave birth. In my view these concessions are not decisive having
regard to the objective proven facts. ”
(48)
A concession, like any other evidence, may either be conclusive or
count for nothing; Witnesses make concessions for any number
of
reasons, sometimes because the concession is in fact warranted,
sometimes because for example, they are confused or tired or
because
they do not understand the effect of a concession, sometimes in
circumstances where they are asked, impermissibly, to put
their
interpretation on certain events; the concession, like other viva
voce evidence, must be weighed by the Court in the light
of the
totality of evidence before it and the probabilities revealed
thereby.”
Harlech-Jones
Treasure Architects CC and Others v University of Fort Hare
2002 (5)
SA 32
(6) (E) at para 88
(49)
Counsel argued that Dr Heyns conclusions should be rejected because
his process of reasoning cannot sustain his conclusions
due to the
lack of empirical evidence suggesting that there was prolonged birth,
and how long the prolonged birth endured.
(50)
With respect, counsel conflates the concept of prolonged birth with
the concept of delayed birth. There is a distinction as
testified by
Dr Heyns. The plaintiff’s membranes were ruptured at 5.30 hours
but she only gave birth to A at 12 noon. In
Dr Heyn’s opinion
that is delayed birth as opposed to prolonged birth which by
definition is the prolonged period during
which the delivery endured.
(51)
Mr Lengene assailed Dr Heyn’s expertise based on the premise
that he based his opinion on unproven facts and relied for
his
conclusions on the plaintiff’s evidence, yet the plaintiff
contradicted the material conclusions of his medico-legal-report.
Dr
Heyns motivated the reasons for his conclusions. His essential
conclusions are corroborated by Dr Lefakane and Dr Moshesh’s
medico-legal-report.
(52)
The statements in Dr Heyn’s medico-legal-report that the CTG
was not administered on the plaintiff at the hospital or
that the
plaintiff gave unassisted birth, should be seen and understood in the
context of the communication between the plaintiff
and Dr Hyens in
the consultation which occurred 15 years after the traumatic
incident.
(53)
Mr Lengene questioned Dr Lefakane’s competence to express an
opinion regarding hypoxia and peri-natal asphyxia as the
causes of
A’s dystonic spastic cerebral palsy quadraplegia.
(54)
Although Dr Lefakane is not an obstetrician, it cannot be
persuasively argued that as a paediatrician he was testifying on
matters outside the scope of his expertise, if regard is had to the
logical scientific exposition he tendered regarding hypoxia
and
peri-natal asphyxia as causes of A’s dystonic spastic cerebral
palsy quadraplegia. Dr Lefakane’s expert opinion
in this regard
was not challenged.
(55)
Dr Lefakane stated that he is variously consulted by obstetricians,
he advices obstetricians on peri-natal obstetrical complications
and
diagnosis of foetal diseases. In my view, Dr Lefakane is eminently
qualified to express an opinion regarding hypoxia and peri-natal
asphyxia as causes of A’s spastic cerebral palsy quadraplegia.
(56)
Drs Lefakane and Heyns opinion and conclusions regarding the cause of
A’s cerebral palsy, coincide with those expressed
by Dr Moshesh
(the defendant’s expert who consulted the plaintiff and
examined A ) in her medico-legal-report lodged in court
in terms of
Rule 36(9).
(57)
Dr Heyns and Dr Lefakane expressed their views firmly with
confidence. They were impressive witnesses who gave logical rational
explanations for their conclusions. Their unqualified opinion is, the
cause of A’s cerebral palsy is attributable to peri-natal
asphyxia, and not to pre-natal or post natal asphyxia.
(58)
In my view, the plaintiff has through circumstantial evidence
established a prima facie case that the treatment accorded to
her and
her foetal child A on 7 September 1996, was not in accordance with
the skill and diligence prevailing in the medical profession,
as a
consequence of such negligent treatment, A suffered hypoxia and
peri-natal asphyxia which resulted in cerebral palsy.
THE
DEFENDANT’S REBUTTAL BURDEN
(59)
I turn to consider whether the defendant has succeeded in explaining
that the cause of A’s cerebral palsy is not attributable
to the
defendant’s employees’ negligence. The defendant adduced
the evidence of Dr Marishane in rebuttal to disprove
the probability
of negligence.
(60)
At this juncture it is apposite to cite the applicable legal
principles predicating the cogency of the evidence the defendant
is
obliged to adduce in rebuttal to disprove the probability of
negligence. In Naude NO v Transvaal Boot and Shoe Manufacturing
Co
1938 AD [15] Tindall JA at 392-3 said:
“
Though
the inference suggested by the nature of the accident does not shift
the burden of disproving negligence on to the defendant,
still it
does call for some degree of proof in rebuttal of that
inference…Where a plaintiff establishes a prima facie case
which, unless rebutted, justifies a decisive inference, the nature of
the answer which is called for from the defendant to enable
him to
escape such inference depends upon “the nature of the case and
the relative ability of the parties to contribute evidence
on the
issue”…The mere suggestion of a reasonable theory
according to which the accident may have happened without
negligence
cannot be a sufficient answer. It seems to me clear that where
admittedly, as in the present case, the nature of the
occurrence
itself creates a probability of negligence, it would be a negation of
that premise if it were held that the defendant
displaced the prima
facie evidence by merely proving a reasonable possibility that the
accident could have happened without negligence”.
(61)
Stratford CJ at 398-9 in the same context remarked:
“…
(P)roof
in some degree is required from the defendant to rebut the
presumption arising from the fact that the occurrence speaks
for
itself…the burden of proof incumbent on a defendant…is
simple and clear, he must produce evidence sufficient
to destroy the
probability of negligence presumed to be present prior to the
testimony adduced by him. If he does that then –
bearing in
mind that the burden of proving his allegation is always on the
plaintiff and never shifts – on the conclusion
of the case the
inference of negligence cannot properly be drawn. Put differently,
his evidence must go to show a likelihood in
some degree of the
accident resulting from a cause other than his negligence.”
(62)
Because of the view I take of the evidence of Dr Marishane it is
necessary reproduce his medico-legal-report verbatim in its
totality,
and thereafter compare and contrast his opinion and evidence based
thereon, with the evidence of Drs Heyns and Lefakane,
when the
totality of the evidence is evaluated.
DR
TM MARISHANE’S RESPONSE TO THE MEDICO-LEGAL-REPORT PREPARED BY
DR AM HEYNS REGARDING THE PATIENT
“
(a)…Electronic
fetal heart monitoring (CTG) was introduced in the 1970s with the
hope that it will reduce the prevalence
of cerebral palsy (CP). It
has been used extensively in the first world, but the prevalence of
cerebral palsy even in the first
world has remained the same. It is
obvious that an assumption was made in the medical fraternity that
the major cause of cerebral
palsy was hypoxia at birth or birth
trauma;
We
know today that fewer than 10% of cases of cerebral palsy begin
during birth. Current thinking is that 70-80% of cerebral palsy
(cases) start before birth;
CTG
was investigated and compared to intermittent auscullation in
monitoring low risk pregnancies and was not found to be superior;
Ultrasound
(sonar) is also not done for every pregnant patient in the public
sector, especially if the patient has no identifiable
risk factors;
(e) There is apparently
an assumption that there was cord compression;
(f) The cause for
cerebral palsy in many cases is never found and with the information
at hand one cannot agree with the opinion
of Dr Heyns.”
DR
MARISHANE’S EVIDENCE
(63)
Dr Marishane admitted that he was pertinently instructed to prepare a
medico-legal-report in response to Dr Heyn’s
medico-legal-report
to discredit his conclusions. He testified that
he was not able to glean any information on which Dr Heyns based his
conclusions
regarding A’s cerebral palsy.
(64)
Dr Heyns’s undisputed evidence was that due to lack of
oxygenated blood to his foetal brain A suffered hypoxia which
caused
peri-natal asphyxia which resulted in cerebral palsy.
(65)
It was put to Dr Marishane that the statement in the “Reuters
Information Document” on which he based his medico-legal-report
it is stated that spastic cerebral palsy was the only type of
cerebral palsy associated with the acute interruption of oxygenated
blood supply to the brain.
(66)
He responded that peri-natal asphyxia did not necessarily prove that
it was not the only type of cerebral palsy acquired as
a result of
hypoxia, nor did the statement suggest that the only cause of spastic
cerebral palsy was birth trauma.
(67)
The universally accepted scientific fact is that there are pre-natal,
peri-natal and post-natal causes of cerebral palsy, but
the “Reuters
Information Document” pertinently stated that peri-natal
cerebral palsy is the only type of cerebral palsy
caused by hypoxia.
(68)
Dr Marishane conceded that there was no suggestion in the “Reuters
Information Document” that indicated that A
did not fall into
the category of the less than 10 percent of the cases alluded to who
suffered peri-natal asphyxia cerebral palsy
as a consequence of
hypoxia.
(69)
Dr Marishane testified that vertex delivery is indicated where there
is pelvic deformity, or if the baby is too big for the
pelvic canal
and cervix. When this situation obtains, vertex delivery causes
trauma on the motor and sensory cortex which results
in cerebral
palsy. In the present case the evidence indicates that A was small,
consequently, there was no suggestion that the
plaintiff’s
pelvis and cervix were not adequate to enable vertex delivery.
(70)
Dr Heyn’s evidence that the pelvic passage remains constant in
size was not disputed nor was the evidence that the plaintiff’s
pelvis was not measured to determine whether same would facilitate
the efficacy of delivering A by vertex.
(71)
The plaintiff’s undisputed evidence is that her second child N
was delivered by caesarean section at Sebokeng Hospital
after she was
informed that her pelvis and cervix were too small to deliver N by
vertex.
(72)
In his medico-legal-report Dr Marishane stated: “The medical
staff monitored the plaintiff’s condition and that
of the baby
properly and without unnecessary delay. A CTG was applied to the
plaintiff,…her membranes were not ruptured
under septic
conditions. Septicaemia did not cause the cerebral palsy. From what I
have heard, there is nothing that one can regard
as having been
untoward or of poor standard from the information that is at hand
that proves that there was negligence. What was
done by the
Baragwanath Hospital medical staff is exactly what I would have
done.”
(73)
Despite this assertion Dr Marishane conceded that the plaintiff was a
red flag patient after the rupture of her membranes at
the clinic and
transfer to the hospital. It is not disputed that on arrival at the
hospital the plaintiff was not immediately accorded
treatment.
(74)
Dr Marishane testified that the APGAR score 5 at 7 minutes did not
indicate hypoxia, that usually the APGAR score should be
less than 6
at 5 minutes for one to suspect hypoxia.
(75)
Dr Lefakane’s evidence that the APGAR score recorded in the
neo-natal summary confirmed A’s peri-natal asphyxia
was not
disputed. The neo-natal summary indicated that A sustained hypoxia
and peri-natal asphyxia which resulted in cerebral palsy.
(76)
The sonar scan conducted on A’s brain on 23 March 2001
indicated that he had suffered hypoxia and encephalopathy (pathology
of the brain) and the dilation of the lateral 3 ventricles, (injury
to the brain neurons). Dr Lefakane testified that the sonar
scan
confirmed A’s peri- natal asphyxia. His evidence was not
disputed.
(77)
Further Dr Marishane stated: “The medical staff monitored the
plaintiff’s condition and that of the baby properly
and without
unnecessary delay. They applied CTG to the plaintiff, her membranes
were not ruptured under septic conditions. Septicaemia
did not cause
the cerebral palsy.”
(78)
Drs Lefakane and Heyns opinion is that the septicaemia infection
occurred as result of the rupture of the plaintiff’s
membranes
under septic conditions. Dr Marishane has not proffered any
explanation as to how the plaintiff acquired the septicaemia
infection.
He conceded that the streptococcus, recorded in the
neo-natal summary, can be transmitted to the foetus in the vaginal
canal and
cervix during birth and causes cerebral palsy.
(79)
It was put to Dr Marishane that the expert evidence shows that A
suffered hypoxia which caused peri-natal asphyxia because
of his
delayed birth, that this indicated that A’s birth should have
been effected by caesarean section.
(80)
He replied that caesarean section was not indicated because there was
no evidence that the plaintiff had suffered from uncontrollable
high
blood pressure nor was there any evidence that the foetus was in
distress, which would have necessitated A’s birth by
caesarean
section.
(81)
On being asked whether he could deny that A had suffered hypoxia and
birth asphyxia during the peri-natal phase, his response
despite the
universally accepted scientific fact that spastic cerebral
quadraplegia is associated with hypoxia which results in
peri-natal
asphyxia, was there were no factors in the present case to support
this assertion.
(82)
Dr Marishane, however, conceded that his medico-legal-report dealt
only with the explanation as to how cerebral palsy occurred
in the
pre-natal phase but did not deal with how cerebral palsy occurred in
the peri-natal phase, which was the phase which predicated
and
defined A’s cerebral palsy.
(83)
It was put to him that it was incorrect for him to make the assertion
in his medico-legal-report that the percentage prevalence
of
peri-natal cerebral palsy in cases where a CTG was used remained the
same, because research studies clearly showed that the
percentage
figures of peri-natal cerebral palsy had decreased when a CTG was
used.
(84)
He responded that it was not the import the article in the “Reuters
Information Document” conveyed, Dr Marishane
contend that
counsel did not understand the import of the article because the
article, was written for doctors who could because
of their training
and qualifications understand what the import conveyed.
(85)
I agree with counsel’s reading and understanding of the
“Reuters Information Document” that research conclusively
showed that in cases where a CTG was used to monitor the foetal heart
beat rate, there was a definite decrease in cases of peri-natal
cerebral palsy as compared to cases where CTG monitoring was not
conducted.
(86)
The overwhelming expert evidence shows that hypoxia curtails the
efficient supply of oxygenated blood to the foetal brain,
which in
turn causes hypoxia (brain damage) which manifests itself as
peri-natal asphyxia which results in spastic cerebral palsy.
(87)
It is clear from his evidence that Dr Marishane was “a hired
gun” specifically engaged to undermine Dr Heyns evidence
at all
costs. Dr Marishane did not attempt to place an impartial gloss on
his critical evidence. He was reluctant to concede the
obvious when
faced with uncontrovertable scientifically proven objective facts.
(88)
In Schneider NO and Others v AA Another
2010 (5) SA 203
(WCC)
Davis J quoting: Zeffertt, Paizes & Skeen The South African Law
of Evidence at 330, citing the English
judgment
of National Justice Compania Naviera SA v Prudential Assurance Co Ltd
(The ‘Ikarian Reefer’) [1993] 2 Lloyd’s
Rep 68 at
81, set out duties of an expert witness thus:
“
(1)
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert, uninfluenced
as to form
or content by the exigencies of litigation.
(2)
An expert witness should provide independent assistance to the court
by way of objective, unbiased opinion in relation to matters
within
his expertise...An expert witness should never assume the role of an
advocate.
(3)
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinions.
(4)
An expert witness should make it clear when a particular question or
issue falls outside his expertise.
(5)
If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be
stated with an
indication that the opinion is no more than a provisional ones.”
(89)
Judge Davis in adumbration of the duties of an expert witness stated:
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased opinion, based on
his or her
expertise, as possible or a particular case.
An
expert is not a hired gun who dispenses his or her expertise for the
purposes of a particular case. An expert does not assume
the role of
the advocate, nor gives evidence which goes beyond the logic which is
dictated by the scientific knowledge which that
expert claims to
possess.”
(90)
Regrettably Dr Marishane has contravened every single one of these
strictures. He was dismissive and irreverent of the evidence
of Dr
Heyns without any scientific basis. Dr Marishane was a dogmatic
witness who did not concede even universal scientifically
accepted
dogma that spastic cerebral quadraplegia is associated with hypoxia
which results in peri-natal asphyxia.
(91)
What is revealing, Dr Marishane did not consult the plaintiff. He did
not examine A. He did not engage Dr Heyns concerning
his
medico-legal-report. He did not peruse the patient neo-natal summary
generated. He did not consult the clinic and hospital
staff who
treated the plaintiff on 7 September 1996.
(92)
In my view Dr Marishane’s evidence raises significant problems
regarding its impartiality and credibility. Consequently,
his
expertise cannot be relied upon because it is unashamedly without any
cogent scientific basis biased in favour of the defendant’s
case.
IS
THE CIRCUMSTANTIAL EVIDENCE CONCLUSIVE?
(93)
I agree with the plaintiff’s counsel Mr Grobler that the
occurrence of A’s cerebral palsy evidences circumstantial
evidence which shows the existence of negligence on the defendant’s
employees’ conduct justifying the court to draw
an inference of
negligence from the proven facts, if the inference of negligence is
consistent with the proven facts and the proven
facts exclude all
other reasonable inferences that can be drawn.
(94)
In Caswell & Powell Duffryn Associated Collieries
[1940] AC 152
at 169-170 Lord Wright remarked: “Inference must be carefully
distinguished from conjecture or speculation. There can be
no
inference unless there are objective facts from which to infer the
other facts from which it is sought to establish. In some
cases the
other facts can be inferred with as much practical certainty as if
they had been actually observed. In other cases the
inference does
not go beyond reasonable probability. But if there are no positive
proved facts from which the inference can be
made, the method of
inference fails and what is left is mere speculation or conjecture.”
(95)
Regarding the inference to be drawn it was held in AA Onderlinge
Assosiasie Bpk v De Beer 1982 (2) 603 (A) at 614G
“
It
is not necessary for a plaintiff invoking circumstantial evidence in
a civil case to prove that the inference which he asks the
Court to
make is the only reasonable inference. He will discharge the onus
which rests on him if he can convince the Court that
the inference he
advocates is the most readily apparent and acceptable inference from
a number of possible inferences.”
(96)
In Kruger v Coetzee
1966 (2) SA 428
(A) at 430E it was held:
“‘
For
the purposes of liability culpa arises if –
a diligens paterfamilias
in the position of the defendant ( or his employees) –
would foresee the
reasonable possibility of his (their) conduct injuring another in
his person or property and causing him patrimonial
loss; and
would take reasonable
steps to guard against such occurrence; and
(b)
the defendant(or his employees) failed to take such steps.”
(97)
Whether a diligens pater-familias in the position of the defendant or
his employees would take any preventative measures at
all and, if so,
what steps would be reasonable, depends upon the particular
circumstances of each case.
(98)
In applying the Kruger v Coetzee supra test all the experts concur
that the plaintiff was a high-risk patient because she was
a first
time pregnant patient, whose membranes were ruptured at about 5.30am
at the clinic and was thereafter transferred and arrived
at the
hospital at 8.00 hours as an emergency patient in need of prompt
treatment.
(99)
After the rupture of the plaintiffs membranes, the risk of the foetal
A being afflicted by hypoxia was ever present and such
risk was
exacerbated by the unreasonable delay which occurred in not treating
the plaintiff expeditiously and delivering A expeditiously
by
caesarean section.
Premier of KZN and Another v Sonny and Another
2011 (3) SA 424
(SCA
)
page 1200, paragraph
C-H.
(100)
If on arrival at the hospital the foetal heart rate beat was
continuously monitored, the doctor and nursing staff would have
established that the foetus was in distress due to hypoxia (the lack
of oxygenated blood supply to its brain).
This
discovery would have enabled the doctor to realize that time was of
the essence in relieving the foetals distress by delivering
A in the
quickest possible method by caesarean section to prevent the
occurrence of hypoxia which eventually resulted in peri-natal
asphyxia.
(101)
No exculpatory evidence was led by the defendant to show that the
vertex delivery of A was the most expeditiously indicated
delivery
under the circumstances, that same was carried out promptly and
efficiently with the skill and diligence prevailing in
the medical
profession.
(102)
In the absence of exculpatory rebuttal explanatory evidence, the
inference is inescapable that despite the fact that there
was an
emergency, an inordinately long period time elapsed before the
plaintiff was attended, consequently, there was a failure
of provide
skilled and diligent treatment during this critical period, because
there was no doctor to treat the plaintiff, at this
critical period,
as a result, vital time to diagnose the onset of hypoxia was lost, so
too was the onset of peri-natal asphyxia.
(103)
The delay in delivering A expeditiously by caesarean section created
a further risk of the existing foetal distress hypoxia
exercebated by
the 2 hours delay before the plaintiff was attended, coupled with the
delayed and prolonged birth of A resulted
in peri-natal asphyxia.
(104)
In my view the circumstantial evidence regarding the nature of A’s
cerebral palsy justifies an inference on the probabilities
that same
occurred because of the defendant’s employees negligence. In
the absence of countervailing evidence to the contrary
disproving the
probability of negligence, the only logical and reasonable inference
to be drawn from the defendant’s employees
failure to proffer
an exculpatory explanation is, the defendant’s employees were
negligent in their failure to accord the
plaintiff the treatment she
was lawfully entitled to in conformity with the skill and diligence
prevailing in the medical profession.
THE
APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR
(105)
In the alternative, the circumstantial matrix encapsulates the
occurrence of an eventuality which carries a high probability
of
negligence regarding the defendant’s employees’ conduct
which justifies the invocation of the doctrine of res ipsa
loquitur.
(106)
Since the seminal case of Van Wyk v Lewis
1924 AD 438
it has been
generally assumed that the maxim res ipsa loquitur is generally not
applicable in medical negligence cases, because
“A doctor is
not held negligent simply because something goes wrong. It is not
right to invoke against him the maxim of res
ipsa loquitur save in
extreme cases.” (my emphasis) per Lord Denning in Huck v Cole
1993 4 MED LR 393.
(107)
However, a careful consideration of the ratio enunciated in the
abovementioned judgment shows that the Appellate Division
(as it then
was) did not totally prohibit the application of the maxim in cases
like the present where there are exceptional circumstances
justifying
such application.
(108)
In Van Wyk v Lewis (supra) at p445 Inne CJ held: “No doubt it
is sometimes said that in cases where the maxim applies
the happening
of the occurrence is in itself prima facie evidence of
negligence…there has been no shifting of onus.”
(109)
Kotze JA at page 452 in a dissenting judgment also aligned himself
with the same notion when he remarked: “not infrequently
a
plaintiff may produce evidence of certain facts which, unless
rebutted, reasonably if not necessarily indicate negligence, and
in
such cases the maxim res ipsa loquitur is often held to apply.”
(110)
Wessels JA at page 464 echoed the same sentiment in when he remarked
“...it seems to me that the maxim res ipsa loquitur
has no
application in cases of this kind...The onus therefore of proving
negligence in a case of this kind is on the plaintiff
from the
beginning of the trial to the very end.”
(111)“The
doctrine must be invoked with caution and only where the defendant’s
employees were in absolute control over
the patient, the treatment
and all the instruments used, and where the injury results in a
complete discord with the recognized
therapeutic, objective treatment
and technique involved, and suggests no other explanation possible…
The
doctrine, constitutes nothing more than a particular species of
circumstantial evidence. What is sought to be proved is negligence
and the evidence of the occurrence itself because it carries a high
degree of probability of negligence, it provides its own
circumstantial
evidence as to the exigency of the negligence in
question and the facts upon which the inference is to be drawn and
derived from.”
See Res Ipsa Loquitur and Medical Negligence by
P Van Den Heever and P Casters.
(112)
The application of the doctrine does not shift the plaintiff’s
a prima facie factual inference that does not shift the
burden of
disproving negligence, but may call for some degree of proof in
rebuttal of that inference.
THE
DEFENDANT’S REBUTTAL OBLIGATION
(113)
There is an obligation on the defendant to explain how A’s
cerebral palsy occurred if the plaintiff and A were accorded
the
requisite treatment, because quite clearly the evidence raises a
prima facie case of negligence against the defendant’s
employees. The defendant has not explained how the cerebral palsy
attributable to peri-natal asphyxia could have occurred without
his
employees negligence.
(114)
To paraphrase Lord Denning in Cassidy v Ministry of Health
[1951] 2
KB 343
[1951] 1 ALL ER 574
CA. “The defendant has busiest
himself that he and his employees were not negligent. But the
defendant has called not a single
person to say that the injuries
(A’s cerebral palsy) were (was) not consistent with due care on
the part of all members of
his staff and that there was no
discomformity between what should have happened. They have not
therefore displaced the prima facie
against them and are liable in
damages to the plaintiff.”
(115)
There is a legal duty on the nurses at the clinic, the doctor and
nurses at the hospital to record the treatment accorded
to the
plaintiff and A. The defendant’s employees were obliged to and
must have made and kept punctilious clinic and hospital
notes
pertaining to the plaintiff’s treatment.
(116)
The clinic and hospital notes are missing from the plaintiff’s
and A’s files. There is a duty on the clinic and
hospital
record custodian staff in terms of
sections 13
and
17
of the
National
Health Act No. 61 of 2003
to safeguard the plaintiff’s and A’s
clinic and hospital records.
(117)
The custodians of the clinic and hospital records were not called to
explain the reason why these records are missing or lost.
No
explanation or reason was proffered regarding the attempts made if
any, of finding or recovering the missing or lost records.
(118)The
defendant has not called the clinic nurses, the hospital doctor and
nurses to explain the reason pertinently why the critical
records of
the 7 September 1996 are missing.
(119)
No explanation was proffered for these flagrant omissions whatsoever
to explain the reason why these vital witnesses who had
a rebuttal
obligation to show that they were not:
(a)
negligent or incompetent;
(b)
did not act improperly;
(c)
did not lack reasonable skill diligence or foresight;
(d)
took all reasonable measures to prevent A sustaining hypoxia and
peri-natal asphyxia, were not called to testify.
(120)
The defendant’s failure to take the court into its confidence
and explain the reason why the nurses and doctor were
not called to
give contemporaneous evidence regarding the treatment accorded to the
plaintiff and A, on 7 September 1996 inescapably
justifies an adverse
inference of negligence to be made against the defendant.
(121)
In any event, there are no clinic or hospital notes evidencing that
recognized objective treatment and therapeutic techniques
were
accorded to the plaintiff and A on 7 September 1996. In the absence
of such exculpatory evidence to circumstances justifiably
call for
the invocation of the maxim res ipsa loquitur, to have recourse to
the evidential inference because the defendant’s
employees had
within their grasp, the knowledge how the incidence occurred.
THE
CONSTITUTIONAL IMPERATIVE
(122)
The invocation of the constitutional imperative is underpinned by the
plaintiff’s right to the highest attainable standard
of
reproductive health foreshadowed in Section 27 of the Constitution.
The plaintiff has a constitutional right to access adequate
reproductive health care administered with the skill and diligence
prevailing in the medical profession.
(123)
The state is obliged to take reasonable legislative and other
measures within its available resources to achieve the progressive
realization of each of these constitutional rights.
In
this sense the invocation of the res ipsa loquitur maxim is
applicable where the plaintiff has established probable a prima facie
case of negligence and the defendant has failed to proffer a
reasonable exculpatory explanation in negation of the prima facie
of
the infringement of the plaintiff’s Section 27constitutional
right to access adequate reproductive health care.
(124)Consequently,
because the knowledge of the treatment accorded to the plaintiff on
the 7 September 1996 is peculiarly within
the knowledge of the
defendant’s employees, and the defendant has not adduced any
direct cogent evidence to discharge the
evidential rebuttal burden of
probable negligence, the invocation of the maxim res ipsa loquitur in
this kind of exceptional case
given the critical missing clinic and
hospital records pertaining to the plaintiff’s treatment on 7
September 1996, is legally
justifiable having regard to the Section
27 of the Constitutional.
(125)
In Naude NO v Transvaal Boot and Shoes (supra) in the head note it is
stated: ”Whether a case is one to which the expression
res ipsa
loquitur applies or not the burden of proving negligence is on the
plaintiff who alleges it; there is no burden of proof
on the
defendant to disprove negligence. Where, however, the case is one
where the occurrence speaks for itself proof is required
from the
defendant to rebut the presumption arising from the fact that the
occurrence speaks for itself: he must produce evidence
sufficient to
destroy the probability of negligence presumed to be present prior to
the testimony adduced by him. If he does so,
then on the conclusion
of the case the inference of negligence cannot properly be drawn.”
(126)Because
the defendant has failed to discharge the evidential burden
disproving a causal connection between the negligence of
his
employees and A’s cerebral palsy, the summation that the
eventuality speaks for itself is unanswered.
THE
ORDER
The defendant is liable
to compensate 100% of the plaintiff’s proven damages;
the defendant is ordered
to pay the plaintiff’s costs together with the qualifying
costs of Dr Heyns and Dr Lefakane.
Dated
the 24 day of October 2012 at Johannesburg
_________________________________________
MOKGOATLHENG
J
JUDGE
OF THE SOUTH GAUTENG HIGH COURT
DATE
OF HEARING:
DATE
OF JUDGMENT: 24TH OCTOBER 2012
ON
BEHALF OF THE PLAINTIFF: MR GLOBBLER
INSTRUCTED
BY: DU PLESSIS ATTORNEYS
TELEPHONE
NUMBER: (011) 331-1223
ON
BEHALF OF THE DEFENDANT: MR LENGENE
INSTRUCTED
BY: STATE ATTORNEY
TELEPHONE
NUMBER: (011) 330-7672