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[2014] ZAGPJHC 407
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Lushaba v MEC for Health, Gauteng (17077/2012) [2014] ZAGPJHC 407 (16 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 17077/2012
DATE:
16 OCTOBER 2014
In
the matter between:
VUYUSILE
EUNICE LUSHABA
..............................................
Plaintiff
And
THE
MEC FOR HEALTH, GAUTENG
...............................
Defendant
JUDGMENT
ROBINSON
AJ
I.
INTRODUCTION
1.
At around 12h00 on 30 June 2000 the
plaintiff, then a young woman of 23 years and 36 weeks pregnant,
presented herself at the maternity
obstetrics unit (MOU) at the
Charlotte Maxeke Johannesburg Academic Hospital (previously known as
Johannesburg General Hospital).
Since 10h00 that morning she had been
experiencing dizziness and constant pain in her abdomen. The pain was
non – intermittent,
meaning that it could not be explained away
as labour contractions. Upon admission it was noted that she was
pale.
2.
These
symptoms are indicative of abruptio placentae, a condition that
occurs when the placenta separates (or begins to separate)
from the
uterine wall. It is an extremely dangerous condition. It leads to
“
deprivation
of the fetus
of
oxygen and can lead to cerebral palsy.
”
[1]
When diagnosed, and unless vaginal delivery is possible, a caesarean
section should be performed immediately. Indeed, the situation
is a
medical emergency and should be dealt with as such. The sooner the
baby is delivered, the less the risk of his exposure to
deprivation
of oxygen.
3.
The foetal heart rate at 12h00 was recorded
at 150 beats a minute, albeit that the beat was irregular. Dr Arend
van den Heever,
the expert witness called by the plaintiff, testified
that this indicated that, at 12h00, the supply of oxygen was still
adequate.
The irregularity of the heart rate, so he said, is an
indication of the baby’s attempts to overcome the insult caused
by
the abruption. Should the heart rate remain low, the brain is
deprived of oxygen to such an extent that permanent damage sets in.
As it happened, the heart rate at 13h45 was at 100 beats a minute,
indicating bradycardia, which means that the heart is beating
abnormally slow, such that the foetus is at risk of dying.
4.
The plaintiff was only attended to in any
meaningful manner at 13h45, when Dr Jeebodh emerged from theatre
where she had performed
another operation, tore aside the curtain
around the plaintiff, herself pushed the trolley into the operating
theatre to perform
that which ought to have been set in motion with
the same urgency with the plaintiff’s arrival at the hospital
at 12h00.
By that time it was too late. The mother was saved but
Menzi, the child, is severely disabled, suffering from spastic
quadriplegic
cerebral palsy. He can neither sit nor walk.
5.
It was common cause between the experts
that abruptio placentae can lead to cerebral palsy. Indeed,
defendant’s expert, Dr
Mashamba, notes in the concluding
remarks in his report:
With
such serious complications following Abruptio placenta the outcome of
Menzi is strongly associated with the complication that
the mother
had just before delivery.
6.
In these circumstances the plaintiff claims
that the defendant was negligent in not providing her with adequate
medical care upon
her arrival. The delay, so the plaintiff claims, in
performing the caesarean, was negligent, permitted the progression of
abruptio
that cut off Menzi’s supply of oxygen, and which in
turn led to the cerebral palsy. The defendant denies negligence. Its
plea amounts, in essence, to a bare denial.
II.
THE ISSUES
7.
At the commencement of trial Mr Pillay, who
appeared for the plaintiff, informed me that only negligence was in
issue. I took that
to mean that negligence and causation would have
to be proven. Liability had by agreement been split from quantum and,
at the request
of counsel, I made an order to that effect pursuant to
rule 33(4). Accordingly the only issue before me was whether the
defendant’s
negligence caused or materially contributed to
Menzi’s condition.
8.
It is common cause that the plaintiff is
the mother of the child Menzi, born on 30 June 2000; that Menzi was
born with cerebral
palsy; that the plaintiff had received her
treatment or the lack thereof at the Charlotte Maxeke hospital and
that the defendant
would be liable were the plaintiff to discharge
the onus on her.
9.
At a later stage both counsel confirmed, to
questions I put to them, that the hospital records on which Drs van
den Heever and Mashamba
relied, were to be accepted with their
contents as true and correct, without the need to prove them. This
meant that the facts
enumerated by Dr van den Heever on pages 31 –
32 of the extract from his report appearing in the plaintiff’s
so –
called “liability bundle” can be accepted as
correct. Dr van den Heever compiled these from the hospital records
also
appearing in that bundle.
10.
I mention at this stage that the defendant
failed entirely to respond to the plaintiff’s various requests
for further particulars.
It also failed to respond to a court order
by Makume J of 13 August 2013, that it should respond to the
questions detailed in that
order. No explanation was provided at the
trial for this failure.
11.
In addition, the defendant only filed its
expert report on Friday 3 October 2014, being the Friday before the
week in which the
trial was to commence. This, despite the fact that
this action had been instituted on 15 May 2012 and had been set down
for trial
in September 2013. I return to these matters at a later
stage in this judgment.
12.
The late submission of the defendant’s
expert report meant that further delays were occasioned during the
week of the trial,
in that the matter had to be stood down for a
joint minute to be prepared between Drs van den Heever and Mashamba
during the course
of 7 and 8 October 2014. The matter came to trial
on 9 and 10 October 2014.
13.
The joint minute, undated, but signed by
both the experts, records the following agreements:
13.1.
patient has lower abdominal pain and
dizziness since 10h00 and admitted at 12h00;
13.2.
abruption could have started after 10h00;
13.3.
on admission: low blood pressure 70/40,
pale, dizzy;
13.4.
FHR 150 bpm although irregular;
13.5.
cervix was closed and no bleeding, multiple
as, uneffaced;
13.6.
no CTG’s available? Done
13.7.
nothing happened between 12h00 & 13h00;
13.8.
13h00 admitted to labour ward 162 –
possibility of abruption mentioned, treatment : analgesics. Review in
4hrs: UNACCEPTABLE;
13.9.
at 13h45 definite diagnosis of abruption
made: FHR bradycardia on ultrasound and retro placental clot;
13.10.
caesarean done without wasting time after
the diagnosis was made.
14.
The conclusion to which the doctors agreed
was noted as follows:
Lower
abdominal pain, lower blood pressure, dizziness is abruptio placenta
until proven otherwise even without PV bleeding. CAESAREAN
should
have been done ASAP after 12h00 most likely with a better outcome.
15.
The one area of disagreement between the
doctors focused on the degree of likelihood of the better
outcome featured in the
conclusion. Whereas dr van den Heever thought
that the early delivery was guaranteed to have had a better outcome
and that it was
likely to have avoided cerebral palsy; dr Mashamba
was of the view that there could be no guarantee of a better outcome.
16.
Because of the agreement of both parties
around the use of hospital records, the following facts are common
cause:
16.1.
the plaintiff, born on 22 October 1976, was
a 23 – year old Gravida 2 Para 1 (1 previous preterm delivery)
when she was admitted
to the hospital on 30 June 2000 at 12h00;
16.2.
she complained of lower abdominal pain and
dizziness since 10h00 that morning. She had no vaginal bleeding;
16.3.
the plaintiff was found to be pale with a
blood pressure of 70/40 mm Hg., approximately 36 weeks pregnant
(dates unsure) with a
normal temperature and a pulse rate of 64 per
minute;
16.4.
the foetal heart rate was 150 beats per
minute and irregular. No CTG recordings are available;
16.5.
the cervix was closed and uneffaced;
16.6.
she was referred to the labour ward (162);
16.7.
she was again examined at 13h00 when she
was found to have strong contractions with an irritable uterus. The
cervix was 3cm dilated,
moderately effaced and centralizing;
16.8.
a provisional diagnosis of abruptio
placentae was made and she was admitted to the labour ward. It was
noted that she was to be
reassessed in 4 hours;
16.9.
at 13h45 a doctor was again called to see
the plaintiff when she started bleeding vaginally with a tense
uterus;
16.10.
an ultrasound was done and a massive retro
placental clot was seen with a slow foetal heart;
16.11.
the definite firm diagnosis of abruptio
placentae was made and an immediate caesarean section (“caesarean”)
was planned;
16.12.
she was immediately transferred to theatre;
16.13.
the plaintiff signed consent for the
caesarean at 14h10;
16.14.
the caesarean under general anaesthesia was
commenced at 14h15, with Menzi delivered at 14h20, weighing 2860
grams with Apgar scores
of 4,6, and 8/10 after 1,5 and 10 minutes
respectively. The estimated blood loss was 1400 ml with a 50%
separation of the placenta
present at delivery of the placenta;
16.15.
Menzi was transferred for further
management due to grunting and sternal recession;
16.16.
the post – operative course of the
plaintiff was uneventful;
16.17.
the baby suffered severe metabolic acidosis
with Hypoxic Ischaemic Encephalopathy Grade II. Convulsions were
noted with episodes
of apnoea;
16.18.
a cranial ultrasound scan on 7 July 2000
was suggestive of early atrophy;
16.19.
the end result was a boy with cerebral
palsy with epilepsy on treatment.
17.
The medical records on which the expert
opinions were based are contained at pages 5 – 7 of the
liability bundle and these
facts, extracted from those records, are
recorded in the report of dr van den Heever.
III.
THE
EVIDENCE
18.
Three witnesses testified. These are, for
the plaintiff, dr Arend van den Heever and for the defendant, drs
Jeebodh and Mashamba.
(i)
Dr Arend van den Heever
19.
The defendant admitted dr van den Heever as
an expert witness, as a result of which his curriculum vitae was not
canvassed in any
detail. He practises as a gynaecologist at the
Durbanville Medi – Clinic in the Western Cape. His fields of
practise include
obstetrics and gynaecology. He graduated in 1975 and
has been in practise since 1985. He is the co – author of a few
chapters
in a textbook on gynaecology and has attended to around 10
000 births.
20.
Dr van den Heever is the author of the
report, an extract of which appears at pages 31 – 33 of the
liability bundle. This
was marked exhibit 1.
21.
Dr van den Heever stated that, when
he saw Menzi the first time on Tuesday, 7 October 2014, he recognised
the symptoms of spastic
quadriplegic cerebral palsy. The term
‘spastic’ refers to the spasm experienced by the child,
whilst the term ‘quadriplegic’
refers the fact that all
four limbs are affected. Cerebral palsy is a condition resulting from
a deprivation of oxygen to the brain
of the unborn child during
pregnancy. The condition leading to cerebral palsy usually occurs in
late pregnancy or whilst in labour.
95% of these cases occur intra
partum. Cerebral palsy is associated with brain damage. Brain
development is impaired and the child
cannot walk because of spasms.
The growth milestones such as sitting, crawling and walking are
absent. Additionally the ability
to talk and have a conversation is
not developed.
22.
Menzi had an abnormally low Apgar score
upon birth. An Apgar score is allocated to a new born child to
ascertain the state in which
he was born. Any Apgar score below 7/10
is regarded as low. Menzi’s scores were 4 after 1 minute; 6
after 6 minutes and 8
after 10 minutes. The initial score is an
important indicator. Artificial resuscitation means had his score
improving. He was unresponsive
directly after delivery. He was a
child born in a so – called “flat” condition.
23.
The term abruptio placentae, also known as
abruption, refers to the separation of the placenta from the uterine
wall. The placenta
is a disk which functions as the interface between
the mother and baby. The placenta is attached to the wall of the
uterus through
which oxygen and nutrients pass and through which
waste is removed. The placenta must be attached to the uterus
properly for this
transfer to occur optimally. Separation between the
placenta and the uterine wall means that the transfer of oxygen and
nutrients
is compromised.
24.
The symptoms of low blood pressure; lower
abdominal pain; paleness and dizziness in a pregnant woman mean that,
unless and until
excluded, abruption must be assumed to be present.
The constant pain the plaintiff was experiencing is as opposed to the
intermittent
pain which is indicative that labour is in place. The
constant pain signifies an accumulation of blood between the placenta
and
the uterine wall.
24.1.
In a case of abruption the abdomen is hard
and tense.
24.2.
The blood clot in the uterus releases a
substance called thrombin, which irritates the uterus so that it
becomes tense. The medical
notes at 13h00 show that the uterus was
irritable. It becomes tense and hard upon contraction.
25.
The absence of vaginal bleeding meant that
the haemorrhage was still concealed at the time the plaintiff
presented at the hospital
at 12h00. The blood will eventually seep
out through the cervix but the fact that it had not done so at 12h00
indicated that the
abruption was still in its initial stage.
26.
The paleness is significant as indicating a
loss of blood. This is detected in a person of darker skin (such as
the plaintiff) by
inspecting the mucosal surfaces such as the tongue
and conjunctiva, which is ascertained by looking in to the eye by
pulling down
the lower eyelid.
27.
The dizziness is ascribable to the low
blood pressure, which indicates that the diffusion of blood to the
mother’s brain is
not optimal. The plaintiff’s blood
pressure at 12h00 was extremely low. This is characteristic of blood
loss. The body has
a wonderful mechanism of compensating for this
clinical situation, which was confirmed by the blood pressure of
100/60 at 13h00.
This recovery, without intervention, is the response
of a healthy woman. The intravenous infusion (drip) was put up only
much later.
28.
The drip is important. Good obstetric
principles dictate that any woman in labour or with pain should
receive an intravenous infusion
to have an open entrance into her
vascular system for intravenous administration of whatever fluids and
medication may be necessary.
Dr van den Heever was of the opinion
that a low blood pressure of 70/40 warranted the administration of an
intravenous infusion
immediately to increase the volume of fluids in
the vessels. Should the volume fall too low the veins collapse and it
could be
very difficult and even impossible to insert a needle into
such collapsed vein. A substance called ringers lactate, which is an
intravenous colloid fluid, is used to expand the intravascular
volume. With this blood pressure reading the low drip was essential
upon admission. It is mandatory and not open to debate. However, the
drip was first inserted at 13h45 when the abruption was confirmed.
At
the same time, a catheter should be inserted in the bladder prior to
the caesarean. This is done to prevent danger to the bladder
during
the caesarean.
29.
There is no doubt that abruption
constitutes a medical emergency.
30.
Abruptio placentae is an extremely serious
condition. It could be lethal to both mother and unborn child.
30.1.
In the case of the mother it would, if left
untreated, lead to massive blood loss. When the placenta separates
from the uterine
wall, the uterus cannot contract to stop the
bleeding because of the baby’s presence therein. Such
contraction can only occur
after the birth of the baby.
30.2.
Whilst the baby is inside the uterus, the
blood accumulates between the uterine wall and the placenta.
30.3.
In the case of total separation between the
placenta and the uterine wall, there is no oxygen transfer and the
baby dies.
31.
Where partial separation occurs, the harm
to the baby is directly proportional to the amount of oxygen still
delivered to the baby.
That is determined by the FHR (the foetal
heart rate). Less oxygen will lower the heart rate. With a FHR of 150
b/m at 12h00, there
could not have been a significant separation of
the placenta. The heart beat was too strong for that. It was well
within the normal
range of 110 – 170 beats per minute. The
range could also be put at 120 – 160 beats per minute. In
either case the
heart rate was within normal limits.
32.
No CTG records were available which means,
according to the medical rule that that which is not recorded did not
occur, that no
CTG (cardiotography) readings were taken. The Medical
Protection Society prescribes as regards acceptable note keeping
that, if
it is not written down (i.e. recorded), it did not happen.
32.1.
A cardio tacograph makes a graphic
representation of the baby’s heartbeat.
32.2.
It is obtained by strapping a transducer
around the mother’s stomach which reads the foetal heartbeat.
32.3.
The CTG should be strapped around the
mother as soon as possible after admission, especially where she
presents with low blood pressure
and abdominal pain.
33.
Abruption is diagnosed, amongst others
through the cardio tacograph. Should a pathognomonic pattern be
displayed, it would be an
indication of abruption. A CTG is standard
protocol to obtain an indication of foetal well being. Considering
the urgency of the
plaintiff’s situation, she should have been
prioritised to have access to such a machine. It was mandatory that
it should
have been applied. The ideal is to have this machine in
place until birth. The absence of the CTG scan equates to negligence,
according
to dr van den Heever. An ultrasound could be of assistance,
but it is not infallible. For example, the placenta and a clot may
have a similar appearance on the ultrasound. The ultrasound will not
show the pathognomonic results. One would be looking for clots
because blood loss in the uterus is characteristic of abruption.
34.
Dr van den Heever could not comment on what
the medical notes mean by identifying the heart beat as irregular,
apart from the explanation
he had provided for the attempts made by
the foetus to survive. Variability in the heart rate is usually a
sign of foetal well
being. The unborn baby has two neurological
systems opposing each other. This is the sympathetic system that
increases the heart
rate as well as the para sympathetic system that
lowers the heart rate. These two are in constant opposing action
which creates
a variability. The more pronounced the variability, the
higher the indicators of foetal well being. Dr van den Heever added a
caveat
by saying that what was meant by irregular could only properly
be known by a CTG reading. According to the notes there was no
indication
of bradycardia upon admission.
35.
Abruption is not an event, it is a process.
It causes a worsening position over a period of time. These processes
follow different
rates of progression in individual patients. In the
case of the plaintiff, the abruption was at 50% at the time of the
caesarean,
thereby indicating that hers was of the slower kind. Had
the abruption been at 50% at 13h45, it clearly could not have been at
50% at 12h00.
36.
Just before the caesarean was performed,
bradycardia was diagnosed in the foetus. This indicates significant
oxygen deprivation.
37.
Asked about the causes and indicators of
abruption, dr van den Heever identified high blood pressure as the
most important predictor
of abruption. Cocaine use and obesity are
other indicators, neither of which applies to the plaintiff. The
plaintiff’s antenatal
records are not available, save for two
normal blood pressure readings during her pregnancy.
38.
Dr van den Heever praised the efforts of Dr
Jeebodh from the moment she stepped in. From that moment no time was
wasted. It takes,
in his experience, at least 25 – 35 minutes
to prepare for a caesarean and the speed with which she produced the
baby was
admirable.
39.
Dr van den Heever had, however, no doubt
that, at 12h00, a diagnosis of abruption should have been excluded.
The ultrasound or CTG
would have taken a few minutes whereafter a
caesarean should have been performed immediately. The cervix was
still closed. Had
the plaintiff been dilated one could have done a
vaginal delivery because that would be quicker than going to theatre.
That was
not possible at 12h00 as delivery was not imminent. The
cervix was 3cm dilated, which is not close to delivery, which occurs
at
10cm dilation. The accepted practise is 1cm/hour. Vaginal delivery
was, accordingly, no option.
40.
Because abruption is a medical emergency,
the speed of response in these cases is a determinative factor in the
neonatal outcome.
The sooner the baby is delivered, the less its
exposure to the deprivation of oxygen. It follows that there is a
need to intervene
instantly.
41.
Referring to paragraph 8 in the history
portion of his report, dr van den Heever described the reaction at
13h00 as entirely unacceptable.
It made no sense to note a
reassessment in four hours of what constituted an emergency.
42.
Under cross examination dr van den Heever
pointed out that there are no notes between12h00 and 13h00. This
means that no action
was taken to look for a cause for the low blood
pressure and the patient’s symptoms. The diagnosis was
confirmed at 13h45.
The speed of intervention governs the neonatal
outcome. The sooner this baby was delivered, the better the outcome
would have been.
43.
Counsel for the defendant attempted to
introduce issues relating to capacity at the hospital. This, despite
the fact that no such
defence was raised on the defendant’s
plea. Mr Pillay objected to these questions on the ground that no
issue was raised
in the pleadings that capacity was stretched to the
point that proper medical care could not be provided. I ruled in his
favour.
It appears to me that the issues between the parties would
have been different, had such plea been raised. In any event, dr van
den Heever commented that, whilst he could not look at anything
beyond the records available to him, and whilst he knew what it
was
like in an academic hospital, prioritisation must take place. A case
like this should have had priority above anything else.
44.
When asked about the CTG and the method of
taking the FHR, dr van den Heever stated that a stethoscope was not a
substitute for
a CTG as it could not measure a continuous heart rate.
If a machine was not available they should have got one to see what
the
condition of the baby was.
45.
Mr Lengane for the defendant made much of
paragraph 9 on p32 of the report of dr van den Heever. In this
paragraph the doctor quotes
from Williams’ Obstetrics which
reads as follows:
Concealed
hemorrhage carries much greater maternal and fetal hazards. This is
not only because of possible consumptive coagulopathy,
but also
because the extent of the haemorrhage is not readily appreciated, and
the diagnosis typically is delayed (Chang and co
– workers,
2001). Abruption severity often depends on how quickly the woman is
seen following symptom onset. With delay,
the likelihood of extensive
separation causing fetal death is increased remarkably. The frequency
with which placental abruption
is diagnosed varies because of
different criteria, but the reported frequency averages 1 in 200
deliveries.
46.
Counsel for the defendant sought to deduce
from this quotation that a diagnosis of abruption could not be
expected. Dr van den Heever
did not concur. According to him, the
fact that the plaintiff experienced pain should have raised the
suspicion of concealed haemorrhage.
It is the delay of that suspicion
that is the problem. If there is undue delay there is foetal
compromise. The signs were there
to have called for investigation, to
minimise the delay.
47.
It appears evident to me that, rather than
condone the failure to diagnose abruption timeously, Williams is
warning about the risk
that it not be done because of concealed
haemorrhage. Alertness when symptoms pointing to concealed
haemorrhage, such as pain in
the abdomen is, accordingly, called for.
48.
When asked whether Williams Obstetrics
prescribes the time that should not be allowed to lapse, dr van den
Heever answered that
it did not. Williams Obstetrics is a text book
for students to make them aware of the importance of early diagnosis.
48.1.
According to the book the speed of response
is an important factor in neonatal outcome.
48.2.
The sooner one responds to a patient with
these symptoms the better the outcome for the baby.
48.3.
The response should be within 5 minutes.
49.
Dr van den Heever pointed out that the
notes do not reflect that a provisional diagnosis was made in the
MOU. With a patient with
these clinical signs, she should have been
transferred as an emergency within minutes to the labour ward. There
was no excuse for
delay even if MOU is far from the labour ward. We
have no notes between 12h00 and 13h00 and thus it appears that
nothing was done.
50.
Asked which reports he read dr van den
Heever answered that he compiled his report according to clinical
notes presented to him
by the plaintiff’s attorneys. These
notes demonstrate 50% separation found during the caesarean, found at
14h20. This has
no relevance to the admission at 12h00.
51.
Mr Lengane put it to dr van den Heever that
the 50% separation told him that the progression of separation was of
the slow type.
Dr van den Heever agreed with that statement.
52.
He also agreed with the statement that that
the symptoms of lower abdominal pains, dizziness and paleness ought
to have alerted
the hospital to possibility of separation.
53.
It was impossible to say when the
separation started, but, to have reached 50% during the caesarean, it
could not have been 50%
when the foetal heartbeat was 150 at 12h00.
It was bradychardia at 14h15, it was slow, which corresponded to the
50% separation
which was present during the caesarean, the foetal
heart rate was very slow. In contrast, at 12h00 on admission the
foetal heart
rate was 150/minute. Thus, the abruption could not have
been 50% at that stage, it might have been 1% or 2% with concealed
haemorrhage
that caused the pain. With a normal heart rate at 12h00
there was no significant separation that could have caused brain
damage.
54.
Had a caesarean been done sooner rather
than later, the neonatal outcome would have been better.
55.
Dr van den Heever stated that, whilst he
could not say that Menzi would not have been born with cerebral palsy
had the plaintiff
been attended to at 12h00, he considered it “very
very unlikely” that he would have been so born. Most likely
Menzi
would have born normally.
56.
Mr Lengane put to dr van den Heever
that, as a result of the taking of the blood pressure, the staff at
the MAU referred the
plaintiff to the labour ward. She was seen at
13h00 by Dr Manga who called the obstetrician. When she was first
called, the registrar
was in the process of delivering a baby.
57.
It was also put to dr van den Heever that
Dr Mashamba as an expert would testify that the 50% separation
discovered during the caesarean
does not indicate that it was less
than 50% at 12h00. Dr van den Heever was unable to agree with that
statement. He based his statement
thereon that heart beat was still
150 per minute at 12h00. It could not be 150 with 50% separation. In
any event, abruption is
a progressive state. There would logically be
a change between 12h00 and 14h20.
58.
Asked about the causes of the abruption, dr
van den Heever identified a few predictive factors. Due to the fact
that we do not have
ante – natal notes, one cannot say whether
Mrs Lushaba had them, one of the more important factors is high blood
pressure.
However, in two instances at 25 and 30 weeks, the blood
pressure was perfectly normal. At 30 weeks she weighed 62 kilograms.
She
was not overweight. Hypertension is more commonplace in
overweight patients. Other factors include cocaine use; folic acid
deficiency,
a whole table of deficiencies and anaemia as well as
trauma on the abdomen. Some abruptions can happen spontaneously. In
any event,
dr van den Heever considered the causes of the plaintiff’s
condition irrelevant. She presented at the hospital with a condition
and ought to have been treated for that condition with the
appropriate urgency.
59.
When asked why it was that he attributed
fault to the delay of the hospital staff and excluded the other
causes, dr van den Heever
answered that it was so obvious there was
no doubt that there was delay in delivering the baby once the
plaintiff presented to
hospital. With those symptoms it is abruptio
placentae until proven otherwise. Nothing was done between 12h00 –
13h45.
60.
It was irrelevant whether she had suffered
trauma or what had caused the abruption to set in. The plaintiff had
a developing abruption
on admission. Her presenting complaints had to
be regarded in a serious light. It was abruption until proven
otherwise. Yet nothing
was done to exclude it.
61.
To a question asked by me dr van den Heever
confirmed that, where he testified about the correlation between less
oxygen and the
low heart rate, he was testifying as an expert.
62.
The plaintiff closed her case after the
evidence of dr van den Heever.
(ii)
Dr Jeebodh
63.
The defendant’s first witness was dr
Jeebodh. She qualified as an obstetrician/gynaecologist in 2003 and
is a maternal sub
– specialist. She was the doctor that
delivered the baby and performed the caesarean. At the time she was a
registrar, training
to be an obstetrician/gynaecologist. She now
longer works at the Charlotte Maxenke hospital. She saw the plaintiff
for first time
at 13h45.
64.
She came to know about the presence of the
plaintiff in the labour ward when Dr Manga, being the doctor who
assessed the plaintiff
in the admissions ward at 13h00 (area 162)
contacted her to say there was a case. At that time dr Jeebodh was
busy in theatre.
Dr Manga admitted the plaintiff to the labour
ward, where an ultra sound facility is located. Dr Jeebodh performed
the ultrasound
because the intern (dr Manga) suspected an abrupted
placenta. Dr Manga could not detect a foetal heart. Dr Jeebodh could
only leave
the theatre after her patient was stable. On doing an
ultrasound she confirmed there was an abruption, whereupon she
stabilised
the plaintiff and booked her for a caesarean.
Stabilisation involved inserting a drip.
65.
There are two floors between the MOU and
the labour ward. One is on the 8
th
floor and the other on the 6
th
floor.
66.
Under cross-examination dr Jeebodh agreed
that, when she first saw the plaintiff, no drip, no catheter
and no CTG were attached
to her. Dr Jeebodh did not see a CTG reading
upon arrival. She was sure that she would have looked for a CTG
reading. She agreed
that the absence of such a reading and the fact
that she did the ultrasound suggested there was none.
67.
Dr Manga was at that stage a fully admitted
doctor. Dr Manga now operates a holistic care centre in Muldersdrift
in South Africa.
68.
Dr Jeebodh confirmed that she considered
the situation an emergency. Bradycardia had set in. The baby is the
second patient and
a heart rate below 110 is a big concern. She was
concerned about the baby’s demise. Bradycardia shows that the
baby was at
pre – terminal stage.
(iii)
Dr
Mashamba
69.
Dr Mashamba, called as an expert witness by
the defendant, testified that he has been a specialist in obstetrics
and gynaecology
since 2000. He has, apart from his MBCHB, also a
diploma in obstetrics, a master’s degree in the medicine of
obstetrics and
gynaecology, and has completed an advanced course in
the management of diabetics in pregnancy. He became a principal
specialist
in 2004. He lectures at the Medunsa campus, is a member of
the maternal death committee of South Africa which enquiries into
maternal
deaths and has contributed to guidelines on maternity care.
In addition he is a member of internal organisations such as the
International
Aids society; the European Society of Human
Reproduction and the American Society of Reproductive Medicine.
70.
Dr Mashamba agreed that everything in the
joint minute except the conclusion at the bottom reflected his
agreement with dr van den
Heever. His opinion was based on the
hospital records, which he saw after he had compiled his report. He
disagreed with dr van
den Heever in that a diagnosis of abruptio
placentae which could have occurred any time after 10h00 may not have
made a difference
regardless of when the intervention was made. The
abruption could have set in any time from 10h00.
71.
The plaintiff was not in the hospital’s
labour ward at 12h00. At that stage she was in the MOU from where she
was referred
to a higher level of care as she was found to have
problems.
72.
It is apparent from the notes at p5 of the
liability bundle that, on arrival at the maternity ward, a history
was taken from the
plaintiff about the problems she was experiencing.
The following were noted:
72.1.
the baby lay longitudinally;
72.2.
the FHR of 150 but being irregular;
72.3.
the blood pressure of 70/40;
72.4.
a vaginal examination with notes that the
cervix was uneffaced and the foetal head moderately applied to
cervix;
72.5.
the reference to 162, meaning she was
referred to a higher level of care, being the admissions ward,
where the plaintiff was
seen by a doctor who was an intern.
73.
The duration of these initial observations
would depend on the experience of the person taking the history, and
what that person
decides to note as significant. One expects a good
history to be taken, which takes long because one must also make a
diagnosis
and then write notes. Even if one were experienced, this
would take at least 15 minutes, then 5 minutes to write the notes.
74.
The maternity ward referred the plaintiff
to a higher level of management because her blood pressure was low
and she was dizzy.
Had it been just the pain, they would have thought
she was in labour. The low blood pressure indicates that there was
little blood
going to the essential organs. One would need to
consider what could be the cause of the low blood supply going to the
mother.
A blood pressure of 70/40 indicates a compromised supply of
blood to mother and foetus. The condition is called hypotension, with
the mother trying to prioritise her life first, preferring the brain
and the heart of the mother. The uterus is not a preferred
organ,
thereby affecting the baby in the uterus.
75.
In response to dr vd Heever’s opinion
that, because there was a delay in performing a caesarean, the baby
was harmed, dr Mashamba
referred to literature such as that of Baha
Sibai which states that, where an in hospital patient complains and a
caesarean is
done within 20 minutes, the baby will be saved. The
outcome is not guaranteed where the complaint starts outside
hospital. The
majority of these babies are not born alive. In
this regard dr Mashamba mentioned Mustafa Abbasi. There is a 50/50
chance
between being born alive or born dead. The majority born alive
are born with cerebral palsy. The literature did not form part of
dr
Mashamba’s report nor was it available to him in the witness
box.
76.
When asked to explain his statement that
early delivery does not guarantee different outcome, dr Mashamba
pointed to the commencement
of the symptoms 2 hours before the
plaintiff arrived at the maternity ward.
77.
In response to whether he would consider
that there was some form of negligence that the plaintiff was
operated on so late after
she arrived, he answered that the facts on
record do not reflect what was actually done. He thought that changes
to the plaintiff’s
blood pressure should mean that something
must have been done to improve her condition. At the same time he
admitted that, in the
absence of documentation, he could not say that
it was done. He agreed that medical practise is to the effect that
that which is
not documented is not done.
78.
The basic principle of obstetrics and
midwifery is that the mother should be saved first. She must be
stabilised for the caesarean
otherwise both mother and child will be
killed. Dr Mashamba insisted that, though not documented, the
improvement in blood pressure
meant something was done. When asked
whether he agreed with the medical standard that that which was not
written was not done,
he stated that he did agree. It was not
indicated by the intern that there was a plan for a caesarean.
79.
When referred to note [7] of the joint
minute which records an agreement that the records reflect nothing
happened between 12h00
and 13h00, dr Mashamba answered that he and dr
van den Heever were referring to the period after the plaintiff was
examined and
to her shocked state. The doctors were looking at things
that could have been done to save the mother. There was no evidence
of
resuscitation.
80.
As regards the heart rate, dr Mashamba was
of the view that irregular heart rate meant that the foetus was
affected.
81.
In cross-examination Mr Pillay asked dr
Mashamba why dr Jeebodh considered it necessary to act with such
haste. To that dr Mashamba
responded that, if one makes the
diagnosis, one acts accordingly. Dr Jeebodh is the one who made the
diagnosis. He did not explain
why dr Manga’s recognition of the
possibility of abruption ought not to have been heeded, nor why it
should not have been
made or heeded at 12h00.
82.
Dr Mashamba nevertheless agreed that
abruption is an emergency.
83.
Dr Mashamba appeared to qualify his
recorded agreement about the plaintiff’s symptoms and what had
to be done when the symptoms
were noted. He testified that, at the
time his agreement was noted, he was not aware that the plaintiff
commenced her interaction
with the hospital on the fateful day at the
MOU. He did not state why he thought this was relevant apart from
stating that it could
not be claimed that a caesarean should have
been done urgently, considering that she started off in the MOU. When
he agreed to
the joint minute and at the time he did his export
report, he had not had sight of the hospital records. It is now clear
from p6
of the liability index that the plaintiff came from the MOU.
He did not explain why that removed the objective urgency of the
condition.
84.
Dr Mashamba agreed that the conclusion to
be drawn from the plaintiff’s symptoms, which included low
blood pressure and lower
abdominal pain, must most likely be taken to
be abruption until proven otherwise.
85.
When asked what should be done upon
presentation of a patient with these symptoms, he answered that a
drip should be put in. That
appeared at odds with his agreement that
a caesarean should have been done as soon as possible after 12h00.
86.
When pressed on whether Dr Manga missed an
essential part of the treatment by not putting in a drip and not
following guidelines,
dr Mashamba suggested, rather strangely I
thought, that he did not know whether dr Manga had read the
guidelines. He appeared reluctant
to comment on whether she was
negligent. In addition he appeared reluctant to comment on whether it
was appropriate to recommend
deferral of the treatment for four hours
in these circumstances, as dr Manga had done. He felt that her 4-hour
deferral was appropriate
considering her diagnosis of LPL, meaning
latent phase of labour. He then suggested that the situation was not
an emergency and
could not be considered one unless one had made a
diagnosis. This too appeared at odds with his noted agreement in the
joint minute
as well as the contents of his report. Abruption, being
an objective condition, presents an emergency regardless of whether
diagnoses
are made. The urgency does not commence only once the
diagnosis is made.
87.
Dr Mashamba appeared to suggest that dr
Manga had acted appropriately by deferring the review of the latent
phase of labour review
to after 4 hours and by recording that
abruption should be ruled out. She called a senior. It was
unfortunate that the senior came
late.
88.
Mr Pillay pointed out that an intern, such
as dr Manga was, is a qualified medical practitioner.
89.
Dr Mashamba thought dr Manga had acted
appropriately on what she found. With the transfer to ward 162, the
first professional to
see the plaintiff was dr Manga, the intern,
being a doctor in training. Whether dr Manga could perform a
caesarean would depend
on how long she had been there. The guideline
is that the interns rotate between the two sections for 4 months. In
those 4 months
they cannot do a caesarean unless under supervision.
90.
When pressed on this by Mr Pillay, who
pointed out that dr Manga would know the history and that alarm bells
should have rung, he
responded that, when a patient is referred, a
doctor would need to confirm the evidence on which she is referred.
Dr Mashamba had
difficulty answering Mr Pillay’s question about
whether the 4-hour referral for review was acceptable. It was pointed
out
to him that his stance in the witness box contradicted his
agreement to paragraph 8 of the joint minute, which recorded as
unacceptable
the referral for review in 4 hours. To this he answered
that the referral based on a diagnosis of latent phase pregnancy was
acceptable
but not if there is abruption. It was pointed out to him
that his assessment of the conduct as unacceptable was without
reservations
and conditions.
91.
Dr Mashamba agreed that the absence of a
CTG reading was of concern. A CTG is essential to determine foetal
health. CTG machines
are routinely used in public hospitals.
92.
He agreed that the baseline FHR of 150 was
within normal limits.
93.
He understood the notation of the heart
rate as irregular to mean that there is deceleration in the heart
rate. This to dr Mashamba
indicated problems, but he did not specify
those. He agreed with dr van den Heever that the baby’s system
was two –
fold as a result of which variation is to be
expected. One has two forces in opposite directions. When one records
abnormalities
there is deceleration. Once there is a problem, when
there is a decrease, then you say it is abnormal. Both these opposing
systems
are at work continuously in unborn baby. Normal reaction is
that sympathetic nervous system is activated when there are problems.
The normal rate of foetal heart rate is110 – 160. Mr Pillay put
it to dr Mashamba that, in the absence of low/high
numbers, a
conclusion cannot be drawn over the seriousness of the deceleration.
In answer dr Mashamba persisted that the presence
of deceleration
indicates an abnormality. He did, however, not identify the effect of
that abnormality.
94.
When pressed to indicate why the intern was
content to review the position in 4 hours, dr Mashamba avoided the
question. He could
not contest that vaginal delivery was not going to
occur within the next hour and that it could not be waited for. Mr
Pillay then
put it to him that, if this were abruption, one could not
wait for vaginal delivery and that that was why dr Jeebodh rushed the
plaintiff to the operating theatre with such haste. In this case at
13h00 the only possibility was caesarean, Mr Pillay put to
dr
Mashamba. To that dr Mashamba answered as follows:
94.1.
I do not agree with what you are saying.
There are things you look at.
94.2.
The patient was rushed for Caesarean
without making sure the mother is well resuscitated and I am against
that.
94.3.
I would not say you make a diagnosis and go
to caesarean. First blood must be ordered and only act should
the mother be stable.
94.4.
You do not say there is abruption and then
act.
Dr
Mashamba thought there was no need for urgency at 13h00. It was
acceptable for dr Manga to await the registrar and not take any
steps
towards inserting a catheter or a drip even. He did not consider that
the plaintiff presented any worrying signs. I could
not reconcile his
answer with his previous agreement that the plaintiff’s
symptoms were indicative of abruption which he
agreed constitutes an
emergency.
95.
When I asked dr Mashamba whether a doctor
such as dr Manga was entitled to remain inactive in the circumstances
of this case and
what her duties and responsibilities would be, he
provided me with no clear answer, such that I still do not know what
the position
would be.
96.
When it was put to him that the only area
of disagreement was around the likelihood of a better outcome, dr
Mashamba gave the impression
that the doctors were considering the
position of the plaintiff. As Mr Pillay pointed out, that could not
have been, considering
that the plaintiff came out of the caesarean
with no difficulties and this case is not concerned with her
condition.
97.
Dr Mashamba was evasive when pressed about
the conclusion which he agreed with dr van den Heever, namely that
the caesarean should
have been done as soon as possible after 12h00
with most likely a better outcome. He acknowledged that, once a
diagnosis of abruptio
was made, the caesarean should be done as soon
as possible, in the interests of both mother and child. He
acknowledged that this
was a concealed abruption. The problem was in
underestimating the danger. The diagnosis was not made at 12h00. Dr
Mashamba then
appeared to qualify his agreement that the caesarean
should have been done as soon as possible after 12h00 on the basis
that he
did not know that the diagnosis had not been made and that he
and dr van den Heever thought the plaintiff was in the hospital. He
did not explain why that made a difference to his opinion and was
evasive on the point. He seemed to be of the view that paperwork
would justify the delay.
98.
Nevertheless, dr Mashamba confirmed that it
was still his view that the caesarean should be done as soon as
possible and that, with
symptoms such as the plaintiff presented, the
assumption is that it is abruption until proven otherwise.
99.
Dr Mashamba eventually acknowledged that,
when he wrote the report, he was concerned with the child and that
the conclusion in the
joint minutes concerning the better outcome
concerned the child, albeit with no guarantees. He agreed that the
abruption was underway
at 12h00. We do not know how far it had
progressed by that stage, as the separation occurs over time. He
agreed that it was important
to do the caesarean without delay
because the speed of intervention is a decisive factor for outcome of
the foetus.
(iv)
Observations regarding the Witnesses
100.
Dr van den Heever was a good witness. His
evidence was rendered in a professional, ordered and comprehensible
manner. At no stage
did I form the opinion that he was tailoring his
evidence in favour of the plaintiff. He came across as fair and
reliable. Likewise
with Dr Jeebodh. One formed the impression, in
both their cases, that they were skilled and dedicated professionals.
I have no
difficulty in accepting the evidence of these two
witnesses.
101.
The
same cannot, regrettably, be said of Dr Mashamba. It was often
impossible to get a straight answer out of him. He was evasive,
refused to commit himself and attempted to avoid the logical
consequences of both his expert report and the joint minute. He
contradicted
himself. It is difficult to avoid the impression of bias
on his part and in this regard I must agree with Mr Pillay that dr
Mashamba
did appear biased in favour of the defendant.
[2]
(v)
Conclusions
from the Evidence
102.
All three doctors agreed that abruption is
an extremely serious condition, such that speed in dealing with it is
of the essence.
There was no suggestion that, once abruption had been
diagnosed, a doctor could proceed at his/her leisure because disaster
was
inevitable and nothing could be done to save the baby and/or
mother in any event. Dr Mashamba could not seriously dispute that the
speed of intervention would have an effect on the neonatal outcome
and in the end he agreed that it would be so. This outcome includes
not only the life of the baby, it includes the quality of life of the
baby. Seen in this light it is of no consequence that
the
plaintiff was first seen in the MOU. She presented with an extreme
emergency and ought to have been treated as such.
103.
There was no challenge to the evidence of
dr van den Heever that a heart rate of 150 bpm excluded a serious
breach in the flow of
oxygen thereby, on the probabilities,
indicating that the baby had not incurred brain damage at 12h00.
Logically, had the caesarean
been performed at or shortly after
12h00, the brain damage would most likely have been averted. Dr van
den Heever was not cross
examined on this point. Dr Mashamba did not
deal with the effect of the strength of the heart rate. There is no
doubt that brain
damage had set in by 13h45 with the heart rate at
100 bpm and the foetus at death’s door. The evidence of dr
Mashamba that
the notation of an irregular heart rate meant that
there was foetal distress is at best inconclusive. He did not specify
what the
outcome, nature or result of such distress would be. He did
not deal with dr van den Heever’s evidence that the strength of
the heart rate excluded any significant loss of oxygen. He could not
know what the deceleration (if indeed it were that) would
be, as only
one heart rate of 150 bpm was taken. Indeed, dr Mashamba did not
state an opinion about the effect of the irregularity
in the
heartbeat, as he interpreted it. In the absence of an indication of
peaks and troughs his interpretation of deceleration
appears
illogical.
104.
Dr van den Heever testified that the fact
that, at 14h20, the abruption was at 50%, meant that it could not
have been such at 12h00.
Abruption is a progressive condition.
Although dr Mashamba agreed with the latter statement, he challenged
the earlier one but
did not explain how a progressing condition could
at 14h20 be where it was at 12h00 At 14h20, at 50% abruption, the
heart rate
was at 100 bpm. It follows that it could not have been at
50% with a heart rate of 150 bpm. On this point I accept the evidence
of dr van den Heever. It is consistent with logic.
105.
Read together, these two facts, namely the
strength of the heart rate at 12h00, and the logical inference that
the abruption must
have been at less than 50% at 12h00, at least such
to enable a heart rate of 150 bpm, mean that the foetus was, on the
probabilities,
still being sufficiently supplied with oxygen at
12h00. As dr van den Heever testified, if the heart rate remains low,
the brain
is deprived of oxygen to such an extent that permanent
brain damage occurs. At 12h00 the heart rate was not low and, on the
probabilities,
brain damage had not occurred.
106.
Both experts agreed that the symptoms with
which the plaintiff presented must be taken to be indicative of
abruption, until proven
otherwise, even without vaginal bleeding.
Medical practitioners can be taken to be aware of the warning in
Williams Obstetrics
of the danger of a delayed diagnosis in the case
of concealed haemorrhage, with its attendant risks.
107.
Both the experts agreed that the caesarean
should have been done as soon as possible after 12h00. They are
agreed that, most likely,
this would have ensured a better outcome.
108.
There
is, accordingly, almost complete agreement between all three doctors
about the medical standard to apply in a case of abruption.
Where a
vaginal delivery is not imminent a caesarean should be performed
without delay to minimise, if not avoid, harm to mother
and child. No
question of two schools of thought on the proper treatment of the
patient arises as it did in
Medi
– Clinic Limited v Vermeulen
,
[3]
a judgment Mr Lengane referred me to.
IV.
NEGLIGENCE/CAUSATION
109.
Corbett JA put the question to be answered
in a case such as this as follows:
…
did
negligence on the part of respondent cause or materially contribute
to this condition in the sense that respondent by the exercise
of
reasonable professional care and skill could have prevented it from
developing
[4]
(i)
Negligence
110.
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.
[5]
111.
In
determining what is reasonable, the court will have regard to the
general level of skill and diligence possessed and exercised
at the
time by the members of the branch of the profession to which the
practitioner belongs.
[6]
112.
This
test has been refined by the addition of the reservation that the
members of the relevant branch should be responsible or,
as has been
stated, a standard of practice recognised as proper by a competent
reasonable body of opinion or a respectable body
of professional
opinion.
[7]
113.
As
has been stated in
Kruger
v Coetzee
[8]
:
For
the purposes of liability
culpa
arises if –
(a)
a
diligens paterfamilias
in the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such steps.
114.
As regards the duty of a hospital in
circumstances such as these, our courts have held as follows:
Because
the Hospital accepted the plaintiff on the 26th June as a patient (it
is immaterial whether as a paying or non-paying patient)
its staff
owed him a duty to attend to and treat him with due and proper care
and skill. That duty on the part of Cornelius and
Fourie in
plastering his arm on the 26th June, and Dr. Wolf in attending to him
on the 28th June, was to exercise that degree of
care and skill which
the reasonable plasterman and general medical practitioner
respectively would ordinarily have exercised in
South Africa under
similar circumstances (
van
Wyk
v.
Lewis
,
Page 541 of
[1963] 3 All SA 534
(W)
1924 A.D. 438
at pp. 444, 456;
Esterhuizen
v.
Administrator
of Transvaal
,
1957 (3) S.A. 710
(T) at p. 723 C to E, 726 A to C). Any breach of
that duty would constitute negligence.
[9]
115.
And in
Ntsele
it was stated as follows as regards the staff at Baragwanath hospital
concerning the birth of a child:
The
defendant’s employees had a duty of care to accord the
plaintiff and Ayanda obstetric and paediatric care with the
reasonable
skill and diligence prevailing in the medical profession
in order to ensure the safe delivery of Ayanda.
[10]
116.
Lord
Denning put the obligation thus:
[11]
If
a man goes to a doctor because he is ill, no one doubts that the
doctor must exercise reasonable care and skill in his treatment
of
him, and that is so whether the doctor is paid for his services or
not. If, however, the doctor is unable to treat the man himself
and
sends him to hospital, are not the hospital authorities then under a
duty of care in their treatment of him? I think they are.
Clearly, if
he is a paying patient, paying them directly for their treatment of
him, they must take reasonable care of him, and
why should it make
any difference if he does not pay them directly, but only indirectly
through the rates which he pays to the
local authority or through
insurance contributions which he makes in order to get the treatment?
I see no difference at all. Even
if he is so poor that he can pay
nothing, and the hospital treats him out of charity, still the
hospital authorities are under
a duty to take reasonable care of him
just as the doctor is who treats him without asking a fee. In my
opinion, authorities who
run a hospital, be they local authorities,
government boards, or any other corporation, are in law under the
selfsame duty as the
humblest doctor. Whenever they accept a patient
for treatment, they must use reasonable care and skill to cure him of
his ailment.
The hospital authorities cannot, of course, do it by
themselves. They have no ears to listen through the stethoscope, and
no hands
to hold the knife. They must do it by the staff which they
employ, and, if their staff are negligent in giving the treatment,
they
are just as liable for that negligence as is anyone else who
employs others to do his duties for him. What possible difference in
law, I ask, can there be between hospital authorities who accept a
patient for treatment and railway or shipping authorities who
accept
a passenger for carriage? None whatever. Once they undertake the
task, they come under a duty to use care in the doing of
it, and that
is so whether they do it for reward or not.
117.
Where
a hospital accepts a person for treatment, it has a duty towards that
person to provide the treatment according to the standards
enumerated
above. The plaintiff had no control or influence over the staff
employed at the Charlotte Maxeke hospital. She was entitled
to an
appropriate level of care and it is the ultimate duty of the
defendant to ensure that the hospital provides such care.
[12]
118.
Measured against these tests, there can be
little doubt that the defendant was negligent. An emergency was met
with indifference.
That, of itself, is negligent.
118.1.
The exercise of reasonable care and skill
would, at or very shortly after 12h00, have (1) led to a diagnosis of
abruption or possible
abruption and (2) a realisation of the urgency
of having a caesarean performed and (3) the performance of that
caesarean. Dr van
den Heever says he would have had the plaintiff on
the way to a caesarean within 5 minutes of her consulting him. Dr
Jeebodh had
the plaintiff on the way to the operating theatre almost
immediately upon her first encounter with the plaintiff.
118.2.
In these circumstances the hospital ought
to have taken steps to perform the caesarean immediately upon noting
the symptoms at 12h00.
This was an extremely serious emergency that
took precedence over all else.
118.3.
Plaintiff’s referral to the labour
ward ought to have happened as a matter of urgency and the caesarean
ought to have happened
as a matter of urgency.
119.
The medical opinion agrees that, had that
been done, there would most likely have been a better outcome for
Menzi.
120.
Although the plaintiff presented herself at
the hospital at 12h00 with symptoms indicative of a medical
emergency, the defendant’s
staff proceeded at great leisure and
with indifference until 13h45. Startlingly, nothing was done to
prevent a very foreseeable
tragedy between 12h00 and 13h45. This,
against the background of agreement from all three medical witnesses
that the caesarean
ought to have been done as soon as possible after
12h00 because abruption presents a medical emergency. Against this
background,
the failure by dr Manga to insert a drip or catheter as
well as the failure to apply a CTG are further instances of
negligence
along the theme of defendant’s indifference between
12h00 and 13h45 to the fate of the plaintiff and her unborn child.
121.
In failing to perform a caesarean on the
plaintiff shortly after 12h00 the defendant breached its duty of care
towards the plaintiff
and Menzi. It also acted negligently in not
employing reasonable skill and care in its dealings with them.
(ii)
Causation
122.
Did the negligence, being the
failure/omission to perform the caesarean timeously, cause the
cerebral palsy?
123.
As regards the test for causation, the
Constitutional Court in
Lee
provides the following guidance:
[56]
Even if one accepts that the substitution approach is better suited
to factual causation, the preceding discussion shows
that there is no
requirement that a plaintiff must adduce further evidence to prove,
on a balance of probabilities, what the lawful,
non-negligent conduct
of the defendant should have been. All that is required is “the
substitution of a hypothetical course
of lawful conduct and the
posing of the question as to whether upon such a hypothesis the
plaintiff’s loss would have ensued
or not”. What is
required is postulating hypothetical lawful, non-negligent
conduct, not actual proof of that
conduct. The law recognises
science in requiring proof of factual causation of harm before
liability for that harm is legally imposed
on a defendant, but the
method of proof in a court room is not the method of scientific
proof. The law does not require proof equivalent
to a control sample
in scientific investigation.
[57]
Postulating hypothetical lawful, non-negligent conduct on the part of
a defendant is thus a mental exercise in
order to
evaluate whether probable factual causation has been shown on the
evidence presented to court. It is not a matter of adducing
evidence,
as the Supreme Court of Appeal appears to have found. I accept
that the postulate must be grounded on the facts
of the case, but
that is not the same as saying that there is a burden on the
plaintiff to adduce specific evidence in relation
thereto.
[58]
What was required, if the substitution exercise was indeed
appropriate to determine factual causation, was to
determine hypothetically what the responsible authorities ought to
have done to prevent potential TB infection, and
to ask whether
that conduct had a better chance
of preventing infection than the
conditions which actually existed during Mr
Lee
’s
incarceration. Substitution and elimination in applying the but-for
test is no more than a mental evaluative tool to assess
the evidence
on record. In my view, this hypothetical exercise shows that probable
causation has been proved.
[59]
That there is a duty on
Correctional
Services
authorities to provide adequate health care
services
,
as part of the constitutional right of all prisoners to “conditions
of detention that are consistent with human dignity,”
is
beyond dispute. It is not in dispute that in relation to Pollsmoor
the responsible authorities were aware that there was an
appreciable
risk of infection and contagion of TB in crowded living
circumstances.
Being aware of that risk they had a duty to take
reasonable measures to reduce the risk of contagion.
[60]
Although I accept that a reasonably adequate system may not have
“altogether eliminated the risk of contagion”,
I do not
think that the practical impossibility of total elimination is a
reason for finding that there was no duty at least to
reduce the risk
of contagion. It seems to me that if a non-negligent system reduced
the risk of general contagion, it follows –
or at least there
is nothing inevitable in logic or common sense to prevent the further
inference being made – that specific
individual contagion
within a non-negligent system would be
less likely
than in a
negligent system. It would be enough, I think, to satisfy probable
factual causation
where the evidence establishes that the
plaintiff found himself in the kind of situation where the risk of
contagion would have
been reduced by proper systemic measures.
[own
emphasis]
124.
The hypothetical non – negligent
conduct in this situation is not difficult to postulate. The
caesarean section ought to have
been performed without delay at
12h00. On that all three doctors who testified are agreed. They are
also agreed that such a course
of conduct had a better chance of
preventing the negative outcome than the conduct adopted by the
defendant, namely waiting 2 hours
before performing the operation and
permitting Menzi to proceed towards a brain damaged state, trapped
inside the uterus.
125.
Undoubtedly
the plaintiff found herself in the kind of situation where the risk
of her baby being born with cerebral palsy would
have been reduced by
a caesarean section being performed without delay after 12h00.
Sufficient oxygen was still being delivered
for the baby at that time
to indicate that, on the probabilities, he was at that stage not
brain damaged. Being aware of the risk
of brain damage, the hospital
was under a duty to take reasonable measures to reduce the risk of
brain damage, or cerebral palsy.
Following the reasoning in
Lee
,
[13]
Menzi would be less likely to be born with cerebral palsy, had the
caesarean been performed without delay.
126.
By
permitting the abruption to progress as it did the hospital caused or
contributed materially to Menzi’s cerebral palsy.
[14]
In these circumstances the necessary reasonable connection between
the breach and the harm done exists.
V.
COSTS
127.
At the outset of this judgment I referred
to the defendant’s lack of responsiveness to requests by the
plaintiff to reduce
the issues in this matter, as well as to court
orders that it do so. I also referred to the late filing of the
summary of its expert
witness, which necessitated a delay and
unnecessary costs. Plaintiff’s counsel and attorney are all
three from Durban and
dr van den Heever is from Cape Town. The time
of four professionals was wasted for two days because the joint
minute between the
experts could only be prepared during the course
of the week in which the matter ought to have been ready to proceed
to trial.
128.
The joint minute raises questions around
the defendant’s reasons for proceeding with its defence. The
experts both agree that
a caesarean at or shortly after 12h00 would
most likely have caused a better outcome for Menzi. Dr
Mashamba’s attempts
to avoid the logical inference of
negligence from the failure to so perform the caesarean were not
impressive. Dr Mashamba was
not willing to guarantee a better
outcome, but that is not the test in this case, which is whether, on
a balance of probabilities,
there would most likely have been a
better outcome for Menzi.
129.
In my view it was incumbent on the
defendant to have considered these matters and to have considered
them as soon as possible after
receipt of the summons. It could not
give reasonable consideration to the issues in circumstances where it
(i) failed to reply
to any request for further particulars and
admissions (ii) only obtained its expert report the Friday before the
week in which
the trial was set down for hearing. Indifferent to the
plaintiff’s medical needs, the defendant was indifferent to the
conduct
of litigation.
130.
The
defendant should only litigate in the public interest.
[15]
Any decision of the head of the department relating to litigation
should be reasonable and rational.
[16]
When the defendant does litigate, it should conduct itself in such a
manner as to avoid unnecessary delays and cost orders. In
my view
mature and timeous consideration of the claim ought to have led the
defendant (at minimum) not to contest the allegation
of negligence,
thereby reducing the issues in dispute. The defendant’s
persistent denial of negligence raises concerns that
it persists in
not appreciating its obligation towards the public it is meant to
serve. In heads of argument submitted following
the end of the viva
voce evidence and argument, defendant’s counsel submitted that
negligence had not been established and
that he had therefore no need
of concerning himself with causation. Defendant’s persistence
that a caesarean should not be
performed as a matter of urgency in
the case of a heavily pregnant woman with symptoms from which
abruption must be deduced; that
she could validly be left essentially
unattended for around 2 hours; speaks of a disquieting indifference
towards its public duty.
There is no merit in its disregard of the
medical evidence to the contrary. Our Constitution and particularly
the values enshrined
in the Bill of Rights require committed service
from the public sector, a commitment eerily absent in this case.
131.
In these circumstances the defendant’s
conduct warrants a punitive cost order. Although I invited counsel
during argument
to make additional written submissions to me about
why a punitive cost order should not be made against the defendant, I
received
no such submissions. I fail to appreciate why the taxpayer
should bear the sole brunt of the failure by the public service to
perform
its duties adequately.
132.
As
regards the lamentable conduct of the litigation by the state
attorney, see
Minister
of Rural Development and Land Reform v Griffo Trading CC
.
[17]
At no stage during the trial as a representative of the state
attorney in court. Defendant’s counsel was without a copy of
the extract of dr van den Heever’s report as it appears in the
liability bundle and was handed a copy by the plaintiff’s
representatives. Blame would also have to be ascribed to the state
attorney’s office for the failure to comply with time
periods
and court orders.
V THE ORDER
133.
It is declared that the defendant is 100%
liable for the plaintiff’s damages arising out of the birth
with disability of Menzi
Polite Lushaba.
134.
The defendant is liable for costs on the
attorney and client scale, such costs to include (and referred to
hereafter as the “costs”)
134.1.
the wasted costs occasioned by the
adjournment on 13 September 2013;
134.2.
the costs of the reports of the plaintiff’s
experts and their qualifying and attendance fees (including the costs
wasted by
the defendant’s late delivery of its expert summary)
including the costs of:
134.2.1.
Prof J Smith, paediatrician and
neonatologist;
134.2.2.
Dr A van den Heever, gynaecologist;
134.2.3.
J W Lotz, professor of radiology;
134.3.
the costs of the plaintiff’s legal
representatives and the said experts for consultations between them;
134.4.
the incidental necessary medical costs
occasioned by the MRI scan on Menzi, including the fees of the
paediatrician and anaesthetist;
134.5.
the costs of hotel accommodation and
transport, being the cost of air travel, a hired vehicle and e –
tolls for the hearings
in September 2013 and October 2014, for the
plaintiff’s legal representatives and witnesses;
134.6.
the costs of all pre – trial
proceedings;
134.7.
the costs of the plaintiff’s
attorneys’ local agent;
134.8.
all other costs of this cause, including
the costs of two counsel, where so employed;
134.9.
all wasted costs occasioned by the
defendant’s failure in preparedness and laxity in complying
with court orders, time periods
prescribed by the rules of court and
time periods for preparation for trial including but without
detracting from the meaning of
this sub – paragraph, the wasted
costs occasioned by the late filing of the defendant’s expert
report on Friday, 3
October 2014.
135.
A rule nisi issues, calling upon the
defendant to show cause on Tuesday 28 October 2014 at 10h00 why he
should not be held personally
liable de boniis propriis on the
attorney and client scale, jointly and severally with the defendant
on attorney and client scale,
for the costs.
136.
Alternatively to the preceding paragraph
and should the defendant be of the view that he
should not be held personally liable, he should identify such persons
in the department
of Health of Gauteng, as well as such persons in
the office of the state attorney, who should be personally held
liable for the
costs as well as the reasons why they should be so
held liable.
137.
The defendant’s affidavits, dealing
with the preceding two paragraphs, should be filed and served by no
later than Thursday
23 October 2014 at 12h00.
R
M ROBINSON AJ
16
OCTOBER 2014
Date
of Hearing: 09 October 2014
Date
of Judgment: 16 October 2014
Plaintiff’s
Counsel: Adv. L. Pillay SC with (Adv. M.A. Oliff)
Instructed
by: Justice Reichlin Ramsamy (Durban)
Defendant’s
Counsel: Adv. K. Lengane
Instructed
by: State Attorney Johannesburg
[1]
Summary
of
expert
opinion of Dr Mashamba
[2]
See, as regards the duties of expert witnesses
Schneider
NO and others v Aspeling and another
2010 (5) SA 203
(WCC)
[3]
[2014] ZASCA 150
(26 September 2014)
[4]
Blyth
v van den Heever
[1980]
1 All SA 148
(A) at p150
[5]
Mitchell
v Dixon
1914 AD 519
at 525
[6]
Van
Wyk v Lewis
1924 AD 438
at 444
[7]
Bolam
v Friern Hospital Management Committee
[1957] 2 All ER 118
(QB) at 122B – C;
Bolitho
v City and Hackney Health Authority
[1997] UKHL 46
;
[1997] 4 All ER 771
(HL) at 778d – g and 779d-g
[8]
1966 (2) SA 428
(A) at 430E
[9]
Dube
v Administrator, Transvaal
[1963]
3 All SA 534
(W) at p541
[10]
Ntsele
v MEC for Health, Gauteng Provincial Government
[2013]
2 All SA 356
(GSJ) at p364
[11]
Cassidy
v Ministry of Health (Fahrni, Third Party)
[1951]
1 All ER 574
at pp584 - 585
[12]
Cassidy
v Ministry of Health (Fahrni, Third Party)
supra
at p588
[13]
Lee
v Minister for
Correctional
Services
(Treatment Action Campaign and others as amici curiae)
2013 (2) BCLR 129
(CC)
[14]
Blyth
v van den Heever
supra
and see
Bonnington
Castings Limited v Wardlaw
[1956] UKHL 1
;
[1956] 1 All ER 615
,
[1956] AC 613
,
[1956] 2 WLR 707
, HL
[15]
compare
Hughes
Aircraft Systems International v Airservices Australia
(1997) 76 FCR151;
Motswai
v Road Accident Fund
(2010/17220)
[2012] ZAGPJHC 248; 2013 (3) SA 8 (GSJ);
Tsabangu
g Road Accident Fund
case no 49589/2009 Gauteng Local Division (Johannesburg)
[16]
Pharmaceutical
Manufacturers Association of SA: in re Ex Partr President of the
Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
[17]
Judgment of Bertelsmann J
12440/11
Gauteng Division, Pretoria