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[2015] ZAGPJHC 15
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Khoza v Member of the Executive Council for Health And Social Development of the Gauteng Provincial Government (2012/20087) [2015] ZAGPJHC 15; 2015 (3) SA 266 (GJ); [2015] 2 All SA 598 (GJ) (6 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2012/20087
DATE:06
FEBRUARY 2015
In the matter
between:
KHOZA,
N (on behalf of minor child
Z)
....................................................................................
Plaintiff
And
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH AND SOCIAL DEVELOPMNET OF THE
GAUTENG
PROVINCIAL
GOVERNMENT
.......................................................................
Defendant
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
The Plaintiff sues the defendant in delict
alleging that her son’s deformity was due to medical
negligence. It is alleged
that the negligence arose during the course
of his delivery in the maternity ward at the Chris Hani-Baragwanath
Hospital
(‘Chris Hani-Bara’)
during the evening of 24
th
May 2008 through to just before dawn on the following day.
2.
The parties are agreed that at this stage
the court is to determine only whether there was negligence and if so
whether it was a
cause of or contributed to her son’s
condition. The issue of quantum has been separated for later
determination should this
court find in the plaintiff’s favour
on the merits.
BACKGROUND
3.
The plaintiff is the mother of Z who is now
almost 6 years old.
Z
displays symptoms associated with some form of cerebral palsy. It is
common cause that he suffers from a severe neurological disability
which is manifested by
inter alia
,
microcephaly, a profound mental handicap, autism-like aloofness,
epilepsy, dyspraxic patterns of motor skills, incontinency and
the
absence of spasticity and communicative skills.
4.
The
plaintiff’s experts contend that Z suffers from hypoxic
ischemic encephalopathy (‘HIE’) due to a partial
prolonged intra-partum
[1]
hypoxic-ischaemic brain injury which occurred over several hours
during labour.
5.
As I understand it, for the purposes of the
case, HIE is a deficiency of oxygen in the tissues which
affects the functioning
of the brain caused by an inadequate flow of
blood to it due to a constriction or blockage of the blood vessels
supplying it. The
consequence of an acute HIE event during birth is
that an infant presents with specific neurological abnormalities
during the first
24 hours after delivery.
6.
However HIE might not be the only cause of
such a condition. Infection, trauma, inborn errors in metabolism and
other genetic disorders
may be the cause. These are described as
non-hypoxic-ischemic events. Moreover the direct cause of the acute
event might be a stroke
rather than a deficiency of oxygen due to a
constriction or blockage of blood vessels supplying the brain.
7.
The parties are also agreed that the
child’s condition did not arise from any event that might have
occurred after his birth
and they also exclude any pre-natal genetic
or congenital condition as a possible cause. That leaves only the
possibility of foetal
distress during pregnancy or birth.
8.
The undisputed facts are that the
Plaintiff, then 21 years of age, had attended the Chiawelo clinic at
14h45 on 25 May 2008 to give
birth to her child. The clinic’s
notes record that the plaintiff’s contractions had commenced at
11h00 that morning
and that she was in labour from about then.
9.
The clinic referred her to Chris Hani-Bara
because of a diagnosis noted as “
a
big baby query
”. The
records confirm that the plaintiff was admitted to the hospital later
that day at approximately 18h00, was 5cm
dilated and was assessed to
be in an active phase of labour. The hospital also noted that the
clinic had referred the plaintiff
for a ‘
big
baby’.
10.
A doctor had ordered a non-stress test at
the time of her admission. The plaintiff was however only transferred
to the labour ward
at 20h45. It is also apparent that she was placed
on a cardio-topographic monitoring machine (a ‘
CTG
’).
11.
The CTG is used to detect foetal distress.
It monitors the foetal heart rate (‘
FHR’
)
simultaneously with the uterine contraction. The purpose is to
establish how the foetus reacts to the stress of the mother’s
contractions.
Certain
of the fundamental aspects of this case concern whether the CTG was
in fact monitored, the relevance of the disappearance
of a number of
the CTG reports and whether the records that are available had been
tampered with.
12.
At 11h15
an
examination was conducted. It revealed that the plaintiff was 7 cm
dilated, there was grade II meconium stained liquor and the
descent
of the foetus was still 3/5ths above the pelvic brim.
This
indicated labour was slow as her cervical dilatation had only
increased from 5 cm at 18h00 to 7 cm and the foetus had not descended
at all.
The
CTG was also noted to be “reactive”. It meant that the
foetus was not in distress.
13.
The next clinical examination was early the
following morning at 02h00.
The CTG was
said to be positive. Unless there are factors to the contrary this
would indicate that the foetus was still not distressed.
14.
It was at this stage that syntocinon was
prescribed. Syntocinon is a drug administered intravenously to
augment uterine contractions.
The plan was to review the situation
and in the absence of any progress to perform a caesarean section. It
is clear that the hospital
records were altered, although the
question is whether they were deliberately tampered with or whether a
genuine error was immediately
corrected.
15.
The altered record reads;
“
Synto
5
in
1l R/L- 60 – 120 – 180 -240 dpm
Review
in
4
hrs.
If no progress for c/s”
The
quantities of 5 and 4 were altered. The original document was
produced and it is incontrovertible that the original note was
to
provide 2 units of syntocinon (not 5 units) and that the patient’s
condition was to be reviewed in 2 hours (not 4 hours).
The reference
to ‘
dpm’
is to drops per minute
16.
It is apparent that syntocinon was not
administered immediately but at 02h30 if regard is had to the
relevant record. This means
that the purported recording of the CTG
at 02h00 was taken before the drug was administered. It is the last
purported recordal
taken from the CTG traces. The defendant claims
that the CTG traces were lost.
17.
There were however other recordings upon
which the defendant relies. In particular reliance is placed on the
labour partogram which
contains handwritten plots noted by the
nursing staff on a series of charts. The partogram is divided into
six charts all referenced
against the same time lines, which are half
an hour apart from each other. In effect the charts provide for the
monitoring of the
required vital signs and urine samples at half
hourly intervals which the staff member (either mid-wife, sister or
even the duty
doctor) plots by making a mark or note in the
appropriate line or block of each chart.
18.
The first section of the partogram plots
the foetal heart rate, the second plots the cervical descent against
three lines running
at 45 degrees from left to right and commencing
just short of the centre of the chart. The first line is the alert
line, the second
is the transfer line and the third is the action
line. Appropriate medical intervention must be taken when the foetal
heart rate
reaches, or passes to the right of, the alert line.
The
third chart plots contractions per 10 minutes. The fourth records
when a drug is administered. The fifth chart records the mother’s
pulse rate and the last chart records urine samples.
At
the bottom of the partogram provision is made for the signatures of
each staff member responsible for making the plots on the
relevant
time line. In this way each sister responsible for completing the
specific plotting at the alleged time must sign for
the plot or note
he or she recorded on the partogram.
19.
It was evident from a consideration of the
original partogram produced that the time line was incorrectly
recorded and that the
contractions per 10 minute recordings were
significantly tampered with thereby suggesting heightened
contractions at certain stages
when in fact it was an over-write of a
much slower contraction rate recordal. Moreover the time when
syntocinon was administered
was incorrectly noted by half an hour.
The defendant’s duty doctor and one of the duty nurses sought
to provide an explanation
during their testimony.
20.
After syntocinon was first administered and
up to the time the plaintiff gave birth at 05h20, which would include
the last two hours
when contractions would have been accelerated,
there is no record produced that she was monitored or that the
CTG, which
was still allegedly attached, was itself being monitored
by the doctors or nursing staff. Even accepting that the plotting on
the
partogram was recorded at the indicated time, the last recordal
of;
a.
the foetal heart rate was at 03h30 although
there is no signature by the sister who ostensibly made the recordal;
b.
the cervix descent, which records the
mother’s dilation, was last noted at 03h00;
c.
the contractions per 10 minutes was
ostensibly at 04h00 but again there is no signature after 03h00;
d.
the pulse was at 03h00
e.
Moreover syntocinon is recorded on the
partogram as being administered for the first time at 01h00
commencing at ‘
60l’
drops
per minute, then at 02h00 at 120dpm, at 02h30 at 180dpm and at 03h00
at 240dpm.
21.
Accordingly the hospital records, if
correct, reflect that the foetus showed no distress at 02h00 before
syntocinon was administered
(the recording on the partogram that it
was administered prior to 02h00 is clearly incorrect and brings into
question whether the
partogram was filled in much later). The other
hospital records show that it was prescribed at 02h00 and obtained
from the hospital’s
pharmacy at 02h30.
Syntocinon
was administered in what at best can be described as a much heavier
dosage than initially contemplated yet there was
no adequate
monitoring of the mother and child. This was despite the initial note
also directing a review in two hours after the
first administration
of the drug in order to determine whether a caesarean section should
be performed. It is common cause that
there had been no review two
hours after syntocinon was first administered (irrespective of
whether that time was 02h00 or 02h30).
22.
Z was delivered at 05h20 on the morning of
26 May 2008.
THE
ISSUES
23.
At the commencement of the trial the
defendant accepted that the child suffers from brain damage and the
other sequelae complained
of. However every other element of the
plaintiff’s claim was put in issue (with damages left over for
later determination
if this court found in the plaintiff’s
favour). The elements of causation in dispute therefore involved;
a.
Whether the injuries were sustained during
labour or as a consequence of some pre-exiting congenital or other
condition suffered
either by the mother or the foetus;
b.
Whether the injuries were sustained after
birth;
c.
If the injuries were sustained during birth
whether it involved a partial prolonged hypoxic-ischaemic insult.
24.
Mr Mkhabela
on
behalf of the defendant vigorously cross examined the seven experts
called by the plaintiff on causation and negligence. However
in his
prepared heads handed up during argument, it was conceded that the
plaintiff had established that the foetus had sustained
a partial
prolonged hypoxic ischaemic injury during labour which caused the
brain injury.
25.
During the course of the submissions
Mr
van der Walt
on behalf of the plaintiff
was prepared to accepted, for the purposes of argument, that it could
not demonstrate any act or omission
on the part of the medical staff
prior to 23h15 which constituted negligence.
26.
In the result the case has been reduced to
the following issues for determination;
a.
Whether there was any act or omission on
the part of the medical staff during the period between 23h15 on 24
May 2008 until the
infant was delivered at 05h20 on the following
morning which amounted to negligence;
b.
If so, whether such negligence caused or
contributed to the hypoxic-ischaemic injury or whether the injury was
due to some other
cause.
27.
The defendant contended that the plaintiff
did not produce any evidence to show that the medical staff were
negligent, and even
if they were negligent it did not cause or
contribute to the HIE. In this regard it is common cause that the
brain of the foetus
also suffered a stroke during labour.
28.
I
proceed to deal with whether there was any conduct, whether by way of
act or omission, on the part of the medical staff between
23h15 and
05h20 on the following morning.
29.
The starting point is the defendant’s
contention that there is no hospital record to demonstrate foetal
distress and that
the evidence of the medical staff, in particular of
Sister Songica and Dr. Moagi, demonstrated that proper procedures
were followed
including the monitoring of the patient and foetus.
ABSENCE
OF THE CTG RECORDS
30.
It is correct that the plaintiff is unable
to rely on the CTG. However the reason is that the CTG tracings at
the critical period
are missing.
Nonetheless
the defendant submits that the court is left with the evidence of the
plotting done by the medical staff on the partogram,
reinforced by
the
vive voce
evidence it presented. In particular the defendant relies on the
evidence of Sister Songica who claimed that she had regularly
monitored the CTG traces and that the points and markings she had
plotted or made on the partogram were those she had taken from
the
CTG tracings
31.
It is common cause that this is not the
first time in a claim of negligence involving the Chris Hani-Bara
maternity ward that CTG
recordings have disappeared. In
Ntsele
v MEC for Health, Gauteng Provincial Government
[2013]
2 All SA 356
(GSJ)
my brother
Mokgoatlheng J noted at para 116 that all the clinic and hospital
notes were missing from the patient’s file and
that no
explanation was offered.
32.
In the present case the file was called
for. It contained every document one would expect save for the
critical CTG tracings. No
proper explanation was offered. On the
contrary Dr
Mtsi who was called by the
defendant confirmed that CTG records should be kept in the mother’s
file.
Furthermore
the last reference to the CTG in the clinical notes is at 02:00. This
is prior to syntocinon being administered.
33.
The CTG recordings are possibly the single
most important monitoring device during labour to detect foetal
distress and appear to
be essential where labour is being induced by
the use of prescribed drugs, such as prostin and syntocinon.
In
this regard I refer to Lamont J in
Makgomarela
v Premier of Gauteng and Another
(2011/35273) [2012] ZAGPJHC 217 (1 November 2012) at paras 6 to 8. At
para 18 of the judgment the court said;
“
Had
the mother and baby been monitored as required the monitoring would
have yielded data which would have enabled the medical team
to
intervene at an early stage so as to prevent hypoxia occurring. A CTG
could have been used to effect tracings on a continuous
basis as such
was available at the hospital
”
In
cases where a CTG machine is used, its recordings are regarded as the
key evidence.
34.
Moreover
sections 13
and
17
of the
National
Health Act 61 of 2003
require not only that the records of hospitals
and clinics be maintained and safely stored but also that adequate
controls of access
are put in place. The provisions read;
13
Obligation to keep record
Subject
to National Archives of South Africa Act, 1996 (Act 43 of 1996), and
the Promotion of Access to Information Act, 2000 (Act
2 of 2000), the
person in charge of a health establishment must ensure that a health
record containing such information as may
be prescribed is created
and maintained at that health establishment for every user of health
services
.
17
Protection of health records
(1)
The person in charge of a health establishment in possession of a
user's health records
must set up control measures to prevent
unauthorised access
to those records and to the storage facility
in which, or system by which, records are kept.
(2)
Any person who-
(a)
fails to perform a duty imposed on them in terms of subsection (1);
(b)
falsifies any record by adding to or deleting or changing any
information contained in that record;
(c)
creates, changes or destroys a record without authority to do so;
(d)
fails to create or change a record when properly required to do so;
(e)
provides false information with the intent that it be included in a
record;
(f)
without authority, copies any part of a record;
(g)
without authority, connects the personal identification elements of a
user's record with any element of that record that concerns
the
user's condition, treatment or history;
(h)
gains unauthorised access to a record or record-keeping system,
including intercepting information being transmitted from one
person,
or one part of a record-keeping system, to another;
(i)
without authority, connects any part of a computer or other
electronic system on which records are kept to-
(i)
any other computer or other electronic system; or
(ii)
any terminal or other installation connected to or forming part of
any other computer or other electronic system; or
(j)
without authority, modifies or impairs the operation of-
(i)
any part of the operating system of a computer or other electronic
system on which a user's records are kept; or
(ii)
any part of the programme used to record, store, retrieve or display
information on a computer or other electronic system on
which a
user's records are kept,
commits
an offence and is liable on conviction to a fine or to imprisonment
for a period not exceeding one year or to both a fine
and such
imprisonment
.
(Emphasis
added)
35.
It is apparent on a reading of
section 17
of the
National Health Act that
the legislature has taken a very
serious view on the failure to keep medical records and on their
disappearance, falsification
or being tampered with. Stiff penalties
are prescribed under
section 17(2).
0i
n; line-height: 150%">
36.
The application of
sections 13
and
17
may
have evidential ramifications in civil suits. The cases referred to
indicate that the overwhelming evidence presented in
Ntsele
and
Makgomarela
was that where it is utilised, the CTG
is the single most important and reliable monitoring device during
the critical phases of
labour. See the evidence presented in
Ntsele
at para 17 where the court noted the
evidence of Dr Heyns in the following terms;
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.
This
was also the evidence presented in the present matter by one of the
country’s leading professionals in the field, Prof
Smith, and
supported by all the other medical experts called. Prof Smith
testified that once the administration of syntocinon was
commenced on
the plaintiff, the CTG should have been regularly monitored. This
evidence could not be challenged. On the contrary
it was the
defendant’s case that the mother had been on a CTG machine and
that there had been regular monitoring of and readings
taken from the
CTG traces.
37.
On these facts the CTG traces constitute
the original and foundational documentary evidence having been
produced directly by the
machine . See
The
South African Law of Evidence
(2
nd
ed) by Zeffertt & Paizes at
pp830-1. See also
Principles of Evidence
(3
rd
ed) by Schwikkard & van der Merwe at para 20.3.1 pp 405-6 .
The
subsequent alleged noting of the CTG data and the
vive
voce
evidence of its alleged content is
hearsay evidence.
Unless
there is a satisfactory explanation as to why the original documents
are not available, a court is entitled to treat such
‘
secondary’
evidence with caution or even refuse to
allow it into evidence. See
Vulcan
Rubber Works (Pty) Ltd v SAR&H
1958(3)
SA 285(A) at 296D-H where Schreiner JA said;
“
The
starting point in considering the admissibility of such evidence is
the statutory provision which, in each province, refers
the Courts in
matters of hearsay to the law of evidence in England. Though there is
reference in our cases to the statutory requirement
that facts must
be proved by the best evidence, I do not think that it is really
relevant. Weaker evidence is not excluded by the
availability of
uncalled stronger evidence
except
in the case of documents, when the original must be produced or its
absence properly explained
. In
that case the secondary evidence itself proves the existence of the
better evidence, namely, the original. No doubt the difference
between evidence and hearsay can be said to be an illustration of a
broad rule favouring the use of the best evidence, but the
better way
of stating the position is that hearsay, unless it is brought within
one of the recognised exceptions, is not evidence,
i.e. legal
evidence, at all.
There
is no doubt that Brunette's statements about the reports he had
received from other officials were of the nature of hearsay.
In
several modern cases in South Africa statements of a generally
similar kind have been admitted (see Garment Workers' Union v
de
Vries and Others,
1949 (1) SA 1110
(W); Rex v Ferguson,
1949 (3) SA
69
(N); Gibson v Arnold & Co. (Pty.) Ltd.,
1951 (2) SA 139
(T)).
In the last named case reference was made to Naik v Pillay's Trustee,
1923 AD 471
, where, at p. 477, DE VILLIERS, J.A., appears to give
recognition to a principle of necessity as affording a ground for the
admission
of evidence that would otherwise be inadmissible. There is
no doubt that the exceptions to the rule against hearsay have come
into
existence mainly because there was felt to be a strong need for
such exceptions if justice was to be done. But that is a different
thing from recognising a principle that the rule against hearsay may
be relaxed or is subject to a general qualification if the
Court
thinks that the case is one of necessity.
(Emphasis
added)
38.
The
Vulcan
case concerned the law of evidence
prior to the enactment of the Law of Evidence Amendment Act, 45 of
1988 (‘
the Amendment Act’
).
39.
In
S v
Ndhlovu and others
2002 (6) SA 305
(SCA) the court was obliged to consider the constitutionality of
section 3 of the Amendment Act. In doing so the SCA (per Cameron
JA
(at the time) at para 14) approved the passages in
Vulcan
at 296F that
'hearsay,
unless it is brought within one of the recognised exceptions, is not
evidence, ie legal evidence, at all
”
but said that what the Amendment Act had brought about was a
fundamental change to permit the relaxation of the evidentiary
rules
by allowing hearsay evidence to be received only if it is in the
interests of justice to do so and relied on the statement
to that
effect by Navsa JA in
Makhathini v Road
Accident Fund
2002 (1) SA 511
(SCA
)
at para 21
.
40.
It was however necessary for the court in
Ndhlovu
to
also deal with the necessary distinction between the admissibility of
evidence and its reliability and its application in light
of the
Amendment Act. This aspect is relevant for present purposes because
the SCA explained that the mere relaxation of the hearsay
rule does
not result in the automatic admissibility of hearsay. The court
stressed, by way of illustration at paras 29 to 31, that;
“
[29]
…. When hearsay evidence is tendered, the person on whose
credibility the probative value of the hearsay depends may
(i)
testify and confirm its correctness; (ii) not testify; (iii) testify
but deny ever making the hearsay statement; (iv) testify
and admit
making the statement but deny its correctness; (v) testify but
neither confirm nor deny making the statement.
[30]
If the witness, when called, disavows the statement, or fails to
recall making it, or is unable to affirm some detailed aspect
of it
(situations (iii) - (v) above), the situation under the
Act is not in substance materially different from
when the
declarant does not testify at all. The principal reason for not
allowing hearsay evidence is that it may be untrustworthy
since it
cannot be subjected to cross-examination. When the hearsay declarant
is called as a witness, but does not confirm the
statement, or
repudiates it, the test of cross-examination is similarly absent, and
similar safeguards are required.
[31]
The probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration,
and the
central question is whether the interests of justice require that the
prior statement should be admitted notwithstanding
its later
disavowal or non-affirmation. And though the witness's disavowal of
or inability to affirm the prior statement may
bear on the
question of the statement's reliability at the time it was made, it
does not change the nature of the essential inquiry,
which is whether
the interests of justice require its admission.
41.
The SCA concluded at para 32 that;
“
hearsay
not affirmed under oath is admissible only if the interests of
justice require it”.
42.
The same considerations apply in civil
proceedings.
See Giesecke & Devrient
Southern Africa (Pty) Ltd v Minister of Safety and Security
2012
(2) SA 137
(SCA) at para 24
per
Brand
JA. There does not appear to be anything in the Constitutional Court
decision of
Savoi and Others v National
Director of Public Prosecutions and Another
2014
(5) SA 317
(CC) at para 44, 46 and 49 that might qualify the key
aspect of the
ratio
in
Nhlovu
or
Makhathini
that
a court in the interests of justice may either hold hearsay evidence
inadmissible or may admit it as part of the evidential
material but
ultimately find it unreliable or untruthful.
43.
If these considerations are applied to the
present case then the following features appear relevant;
a.
There has been no explanation for the
disappearance of the CTG tracings;
b.
Aside from the ordinary obligations of
medical practitioners to maintain their patient’s records the
National Health Act expressly
legislates for it. The policy
considerations that underlie the legislation are self-evident.
Prima
facie
it would appear not to be in the
interests of justice to condone, without an acceptable explanation, a
failure on the part of a
state institution to comply with a positive
obligation imposed by statute, and enforced by significant penalties,
to ensure that
records are preserved, are not tampered
and
that proper access controls are put in place.
c.
The same staff members responsible for
monitoring patients under their care are responsible for the regular
appraisal of the records
and for ensuring the safekeeping of these
records in their patients’ files. Accordingly the person
responsible for the care
of the patient, which includes regular
monitoring or examination, is also the gatekeeper of the records;
d.
There is no suggestion that the internal
procedures are inadequate to ensure the safe custody of the contents
of a patient’s
file. Quite the contrary picture was painted by
senior staff as to who can access the files and the signing out
procedures.
e.
The medical staff responsible for
maintaining the patients’ medical records has the most to gain
by ensuring their safekeeping
as the records are the surest way of
demonstrating that they had monitored and carried out proper
procedures. The same staff members
also have the most to gain by the
disappearance of the contents of a patient’s file if they
failed to carry out their duties.
They are also the ones who would be
giving hearsay evidence because of the disappearance of the original
record. The risk of unreliability
because of manufactured evidence is
high and the ability to cross examine effectively compromised;
f.
The last feature in itself is not decisive,
as unreliable evidence may be admitted (see
Savoi
) although not ultimately
accepted as having much weight. In the present case the strongest
reason for not accepting the nursing
sister’s plots on the
partogram as a correct recordal of the CTG traces (having claimed to
use the traces as her source material)
is because the partogram
itself was tampered with and significantly altered. Moreover certain
entries could not have been plotted
at the time claimed because the
chronology does not accord with other hospital records, such as the
pharmacy’s drug register.
44.
I would therefore have no difficulty in
finding that the graphs on the partogram which purportedly recorded
the CTG tracking as
well as the sister’s evidence as to what
the CTG in fact recorded constitutes inadmissible hearsay. If I am
wrong and I have
exercised my discretion incorrectly then I would
have no hesitation in rejecting the testimony of Sister Songica and
Dr Moagi regarding
the CTG readings. My reasons appear later.
45.
In my view the inadmissibility of hearsay
testimony is not necessarily the only consequence that results from
the failure to produce
the CTG records without an adequate
explanation. That is a negative consequence which provides little
comfort to a plaintiff who
still bears the onus of demonstrating
negligence. In medical negligence cases the issue often arises
whether the injury to the
patient was due to negligence,
non-actionable mistake or another unrelated cause. Accordingly the
application of
res ipsa loquitur
may
be an unruly horse in certain cases.
Nonetheless
in suitable cases it may be appropriate as appears from its
application in
Ntsele
.
In that case Mokgoatlheng J considered that a failure to produce the
potentially exculpatory evidence of any clinical or hospital
notes,
“
justifiably call for the
invocation of the maxim res ipsa loquitur”
(at
para 124)
.
The
learned judge added at paras 125 and 126;
[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.”
46.
In
Ntsele
all
the clinic and hospital records had disappeared without explanation
and no member of the medical staff gave evidence. The defendant
only
called an expert whose evidence was unceremoniously rejected by the
court.
In
the present case, however, the defendant called both the duty sister
and the doctor who had been responsible for prescribing
and
administering syntocinon.
47.
In summary, the failure to produce the
original medical records which are under a hospital’s control
and where there is no
acceptable explanation for its disappearance or
alleged destruction;
a.
may result in the inadmissibility of
‘
secondary’
evidence if the interests of justice so dictate, whether such
evidence is of a witness who claims to have recalled the contents
of
the lost document or to have made a note of its contents on another
document;
b.
cannot of its own be used to support an
argument that a plaintiff is unable to discharge the burden of proof
because no one now
knows whether the original records would exonerate
the defendant’s staff from a claim of negligence.
c.
may result in the application of the
doctrine of
res ipsa loquitur
in
an appropriate case;
d.
may result in an adverse inference being
drawn that the missing records support the plaintiff’s case in
matters where the
defendant produces other contemporary documents
that have been altered, contain manufactured data or are otherwise
questionable
irrespective of whether the evidence of secondary
witnesses called in support is found to be unreliable or untruthful;
48.
In the present case the doctrine of
res
ipsa loquitur
cannot be applied to
demonstrate that there was negligence on the part of the hospital’s
staff which caused or contributed
to HIE. The reason is that the
defence has been able to demonstrate that the foetus suffered a
stroke which may or may not inevitably
have resulted in HIE
irrespective of the most competent medical intervention.
49.
However the preliminary question remains
whether any inference can be drawn of negligence on the part of the
medical staff. If answered
in the plaintiff’s favour the
remaining issue will be whether that was a cause of or contributed to
HIE.
GROUNDS
OF NEGLIGENCE
50.
The starting point is that there is no
evidence of any congenital or other prenatal abnormality suffered by
either the plaintiff
or the foetus.
51.
Since the defendant conceded that the child
sustained the injuries while the mother was in labour it follows that
the insult to
the foetus must have occurred while the mother was
being treated in the labour ward.
52.
The plaintiff relied on several grounds of
negligence on the part of the medical staff. For present purposes it
is sufficient to
deal with two, albeit that they appear to be
interrelated.
The
first is that the medical staff failed to properly monitor or review
the mother and foetus when there was a duty to do so. The
other is
that the medical staff was negligent in that too high a dose of
syntocinon was administered.
53.
The two grounds of negligence intersect if
the medical staff had a duty to properly monitor or review for foetal
distress when syntocinon,
a scheduled drug with its admittedly
dangerous effects, was administered to induce labour. I intend to
confine the enquiry to that
aspect.
54.
However before doing so it is necessary to
deal with Mr Mkhabela submission that the plaintiff did not plead a
failure to monitor
or review as a ground of negligence. In my view,
however broadly or inelegantly the grounds may have been pleaded it
was evident
to the defendant from receipt of the plaintiff’s
expert reports that this was a ground relied upon. The defendant
cross examined
the plaintiff’s experts extensively on this
issue and its own experts covered this in their reports as did the
duty staff
during their evidence in chief. Accordingly the defendant
cannot now be heard to say that it was caught unawares or that it did
not deal with this ground fully during the trial. At no stage did it
object to the reception of evidence which related to this
ground.
55.
In view of the plaintiff’s limitation
of the period from which the negligent conduct is said to have
commenced it is only
a necessary to start with the last important
hospital note prior to 23h15.
THE
HOSPITAL NOTES
56.
At
22h45 the Plaintiff was admitted to the labour ward. Although no
physical or vaginal examination was performed it was recorded
that
the Plaintiff’s contractions were “
moderate”
and that the “
NST
”
[2]
was “
reactive
”
which would indicate that the foetus was not experiencing any stress
at that point in time.
57.
The Plaintiff was then reviewed at 23h15 on
the 24th of May 2008 and it was recorded in the birth file that the
plaintiff’s
cervix was 7 cm dilated. This was plotted to the
right of the transfer line on the partogram.
A
grade II meconium stained liquor was also noted. Liquor is the
amniotic fluid surrounding a foetus and “
MSLII
”
meant that the liquor was moderately stained.
Furthermore
the presenting part of the foetus was still 3/5ths above the pelvic
brim and the plaintiff was noted as experiencing
mild to moderate
contractions.
58.
In regard to the foetus it was noted that a
heart rate was present and the CTG was said to be “
reactive
”.
The height of fundus was recorded as “
34/40
”,
34 being a measurement in centimetres. It was also noted that the
gestation period was into its 38th week.
The
plan of action advocated by the doctor at this time was to allow the
mother to progress in labour.
59.
The next significant note is contained in
the partogram at 01h00 on the following morning. It recorded that
there was still moderately
meconium stained liquor.
60.
After that and at 02h00 it was recorded
that the plaintiff was extremely restless, that there was foetal
movement, and that the
CTG was positive. It was however noted that
labour was progressing slowly.
It
was at this stage that the Dr Moagi prescribed aterax and syntocinon.
It
has already mentioned that the note that had been overwritten now
read that the mother was to be reviewed in 4 hours’ time
and
that a caesarean section was to be performed if there was no
progress. Originally the note directed a 2 hour review.
At this
stage I am satisfied, having regard to the various pamphlets and the
evidence led on the proper procedures to be applied
when syntocinon
is administered, that the note should not have been altered and that
a review should not have been delayed beyond
the two hours. Dr Moagi
gave evidence and could provide no acceptable explanation that would
not have compromised him if in fact
he had directed that the patient
only be reviewed 4 hours later.
This
is strong corroboration to support the probability that the time was
altered subsequently to explain why there had been no
review of the
mother’s and foetus’ condition despite the administration
of syntocinon, even in the altered dosage that
was recorded and even
if Dr Moagi’s evidence is accepted as to what the altered
dosage meant is accepted.
61.
At 02h30 the following note was made;
“
Pt
has been seen by the doctor @ 02h00 and has been made 5 cm dilated”.
However
the partogram had earlier recorded the cervical dilatation at both
23h00 and at 02h00 to be 7cm.
These
discrepancies between the partogram and other hospital records
indicate that, at the least, portions of the former were manufactured
after the event.
In
any event as pointed out by Prof Smith plotting of the cervical
dilatation, whether at 5 and 7 cms, still falls to the right
of the
action line and indicates that there was no progress in the patient’s
cervical dilatation for a protracted period
of time.
At
this stage the foetal heart rate was recorded as 136 beats per minute
Once
again there is an anomaly. It appears that syntocinon and aterax (a
sedative) were only administered at 02h30,
not
at 02h00
or the earlier time
recorded on the partogram.
62.
The doctor’s note at 02h00 required
syntocinon to be administered in a dosage of “5 IU / ℓ “
in Ringer Lactate
commencing at a rate of 60 drops per minute and
increasing steadily to 120 then 180 and then 240 drops per minute. As
mentioned
earlier this was also an overwrite of the original note
which required only ‘
2IU ’
).
“
IU / ℓ
”
is a reference to International Units per litre.
63.
There are no further notes or other records
made from 02h30 until the birth of Z at 05h20.
Most
disturbing is that the partogram is supposed to regularly record in
graphic form the course of labour and provides for alert
and action
lines to prompt intervention if the curve deviates from the norm. It
is clear from the expert testimony presented by
the plaintiff that
the partogram was incomplete. Of particular relevance is that ;
a.
the plaintiff’s contractions were
entered only until 04h00;
b.
the maternal pulse rate was entered only
until 03h00;
c.
the foetal heart rate was entered only
until 03h30;
d.
the cervical dilatation was plotted only
until 02h00;
e.
information regarding liquor, moulding,
caput, effacement, station and application were plotted only until
02h00;
f.
there were no entries of a foetal heart
rate baseline recording between 20h00 and 23h00 and again between
00h30 and 01h30.
64.
Aside from the failure to record essential
information required on the partogram there are glaring anomalies
when a comparison is
done between what was recorded and the notes
contained in other hospital records. For instance, labour was noted
to have begun
at 22h00 but on the “
Admission
in Labour form”
contractions
commenced at 11h00 on the morning of 24 May.
I
have already mentioned that an examination of the original partogram
reveals that the contractions per 10 minutes were materially
tampered
with in order to indicate that contractions had significantly
increased. Sister Songica could not explain with any degree
of
conviction how this came about, nor why the marks she made did not
coincide with the time lines reflected on the partogram when
regard
is had to other objective evidence.
65.
I am satisfied that the partogram was
significantly tampered with and that some of the marks were plotted
well after the event since
if they had been plotted contemporaneously
there could not be any error as to time. It is difficult to
comprehend how such
a glaring confusion as to time could have arisen
if contemporary recordings had been made as required. The
irresistible inference
is that the partogram was tampered with and
that there was either a complete lapse in the proper monitoring and
review of the plaintiff
or if a partial lapse then when the duty
staff realised that the patient and foetus were in distress they
sought to ensure that
the records would not implicate them. Those are
the only two possible scenarios.
66.
The onset of the second stage of labour was
at 05h15. The evidence is that the second stage of labour
commences when a patient’s
cervix is fully dilated, which is at
10cm. Z was delivered shortly after at 05h20.
67.
The final stage of labour occurred at
05h25. Accordingly the total duration of active labour was recorded
as 7 hours 25 minutes.
However this is blatantly incorrect, since at
the latest it commenced at 18h00 which meant a duration of some 11½
hours.
68.
The “
Neonatal
Discharge Summary
” recorded that
there was asphyxia at time of birth and also that there had been a
single seizure. The note clearly indicated
that there were no other
seizures. Anti-convulsion medication was administered. The assessment
was that the baby had HIE. Various
examinations, medication and
courses of treatment were undertaken at the hospital and the mother
and child were eventually discharged
from hospital on 4 June.
69.
It is unnecessary to deal with the follow
up procedures and the sequelae of the child’s HIE as they are
admitted. The hospital
diagnosis was that Z sustained a moderate
hypoxic-ischemic encephalopathy insult.
NEGLIGENCE
70.
I am satisfied that even without drawing
inferences from the failure to produce the CTG traces, the
defendant’s nursing staff
failed in their duty to monitor the
mother and foetus, either properly or at all, after syntocinon was
administered. Moreover if
the doctor had overwritten his initial note
to record that a review was to be undertaken in 4 hours then that in
itself was negligent
having regard to the quantity of syntocinon he
had prescribed and their administration over a period with increasing
dosages of
the drug.
71.
Returning to the duties of the nursing
staff, it is not disputed that a failure to undertake regular
monitoring of the mother and
the foetus when labour was protracted
and syntocinon had been prescribed is negligent. It is therefore
unnecessary to review the
obligations and duties of nursing staff
whether prescribed or otherwise.
The
issue of negligence turns at that stage on whether the nursing staff
or duty doctor had complied with the duty of care they
owed to
properly monitor the progress of the labour.
72.
Sister Songica claimed that she was in
regular attendance at the plaintiff‘s bedside, had properly
monitored the progress
of mother and foetus and that any errors or
omissions contained in the partogram were due to her nor having an
opportunity to record
them contemporaneously due to pressure of work.
73.
Sister Songica was a very unconvincing
witness. She kept changing her version when confronted with the
glaring anomalies contained
in the partogram when compared to
the other hospital records produced. Perhaps the most telling is the
clear tampering with
the chart recording contractions per 10 minute.
Not only does it not make sense bearing in mind the fact that
contractions did
not increase to any degree until syntocinon was
administered, but it does not accord with all the other relevant
contemporaneous
notes
74.
Dr Mtsi was called by the defendant to
provide evidence of compliance by the nursing staff with the
hospital’s protocols to
show that there had been no negligence.
However when shown the evidence that had been revealed during
cross-examination she conceded
that there were glaring inaccuracies
and errors. She also conceded that the dosage of syntocinon was wrong
and admitted that the
partogram is woefully inadequate. None of these
features to which she admitted had been contained in her expert
summary and she
was unable to proffer an explanation for the
omissions.
75.
It is not disputed that syntocinon is
per
se
a dangerous drug. The protocol
itself states that it should be administered with care and constant
monitoring.
76.
Sister Songica provided the only
vive
voce
evidence regarding the alleged
proper monitoring of the plaintiff. In my view Mr van der Walt was
correct when contending that her
evidence is a mass of
contradictions, He identified the following to which there was no
real answer from the defence in argument:
a.
She testified that she was the person who
had filled in the partogram. It then appeared that she could
not have been the sister
who had completed some of the blocks on the
partogram. The latter appears to be correct in that Dr Moagi
confirmed that he
completed some of the blocks on the partogram. This
would have been along the 02h00 timeline;
b.
Sister Songica subsequently said that the
last five signatures at the bottom of partogram were hers.
Later this was retracted;
c.
She then claimed that she was only
responsible from the time syntocinon had been administered at 02h00
(although her handwriting
appears earlier on and on the partogram
syntocinon is reflected as having been administered prior to 02h00).
This nonetheless contradicts
another hospital record which reflects
that the administration of Syntocinon commenced later at 02:30;
d.
She claimed that she was not involved with
the plaintiff’s care after 04h00. Later she testified
that she was involved
and again changed her mind about whether the
signature at the bottom of the timeline was hers;
e.
When questioned about the administration of
syntocinon being entered in the wrong time slot on the partogram, she
endeavoured to
explain the time blocks as being at hourly intervals
and not of 30 minutes. When confronted with the document
and shown
why that could not be so she reverted to the correct
times. When it is once again shown to her that this would mean
that
the times did not correlate, she tried to change her version yet
again;
f.
She testified that she had monitored
properly, but did not have a chance to complete the partogram due to
having to give her attention
to other patients.
She
stated that it would take her a full minute to record the maternal
heart rate and also a full minute to monitor the FHR on the
CTG.
When
it was pointed out to her that it would take her two seconds to draw
a simple cross, she had no real logical explanation as
to why she did
not fill in the partogram at the time she claimed to have
observed the CTG tracer;
g.
When she was confronted with the period of
time, from 04h00, when there absolutely no completion of any part of
the partogram, she
again could not provide a logical answer as to
why, if she did monitor, she did not plot her observations with a
cross or dot,
which would have taken only a matter of seconds.
77.
I am satisfied that Sister Songica was a
dishonest witness and was covering up both in her evidence and by
altering the partogram,
the failure on her part and on the part of
those she supervised to properly monitor the mother and foetus. Since
the defendant
accepts that there was foetal distress it is evident
from Prof Smith’s testimony that this would have shown on the
CTG and
the staff should have taken remedial action.
78.
In my view the plaintiff has demonstrated
that the defendant was negligent in failing to properly monitor
(including review) the
progress of labour at least from the time that
syntocinon was administered. This was the clear import of Prof
Smith’s testimony.
79.
The final question is whether the failure
to monitor would have averted HIE or whether it would have occurred
in any event.
HIE
CAUSED BY NEGLIGENCE OFSTAFF
80.
The defendant sought to contend that the
partial prolonged HIE was possibly triggered by the arterial stroke
recorded in the medical
notes. If that is so then it is irrelevant
whether the staff was negligent or not. The argument goes that no
amount of monitoring
could have averted the onset of the stroke and
its
sequelae
.
81.
The defendant called Dr Weinstein to
support this possibility. In my view counsel’s submission
attempts to put a gloss on
the evidence of Prof Smith and Dr Lippert
and fails to take into account the concessions made by Dr Weinstein.
Firstly Dr Weinstein
accepted Dr van Ransburg’s opinion to the
effect that it was the intrapartem HIE that triggered the arterial
stroke. Accordingly
the stroke was not an independent event but
rather a consequence. This was also borne out by the fact that there
was only one episode
recorded of a stroke.
82.
In other words on the probabilities Z’s
condition was at the least caused by a stroke which had been
triggered by the depletion
of oxygen and glucose to the cerebral
region which resulted in brain damage and this occurred during child
birth. I should add
for completeness that it was common cause that
starvation of oxygen and glucose would have occurred either because
of the mother’s
contractions or because the umbilical cord was
strangling the child.
83.
I am therefore satisfied that foetal
distress would have been averted and Z would not have sustained HIE
had the defendant’s
staff properly monitored the plaintiff
during labour and after syntocinon had been administered.
COSTS
84.
The plaintiff sought the usual cost orders and in addition claimed
the costs of counsel preparing the heads of argument, the
costs of
the experts called including their travel costs as they are all based
in Stellenbosch.
85.
I am satisfied that the preparation of the heads of argument was
justified. The trial was lengthy with two key elements of the
delict
contested; namely what injury was actually sustained and whether it
was due to the negligence of the hospital’s staff.
The
defendant only conceded causation during argument. It was salutary to
submit heads in the circumstances as both party’s
sets were of
great assistance.
I
am also satisfied that the issues were complex and warranted the
engagement of two counsel.
86.
The opinion evidence of all the experts was necessary, save for Prof
Viljoen. His report and evidence did not assist as he had
undertaken
a superficial investigation into the plaintiff’s histology and
the nominal evidence regarding the child’s
father was
unsubstantiated hearsay.
87.
Finally; the plaintiff’s legal representatives elected to
choose the team of experts. This is one of a number of medical
negligence cases where the same team of experts is used around the
country by the same lawyers.
88.
It is evident that Prof Smith is possibly the leading authority in a
very specialised field and can also provide a broader level
of expert
knowledge as a number of specialist disciplines need to be traversed.
I consider that he is essential to the legal team.
However the other
experts are drawn from around him and there is nothing to suggest
that there are not suitably qualified experts
in these other fields
who live in Gauteng or that the cost implications would be greater
despite the Stellenbosch team having to
be flown up.
89.
The use of experts who are at same university as Prof Smith is
obviously convenient for the plaintiff. However the experts do
not
have the uniqueness within their disciplines to the same degree as
warrants setting Prof Smith apart for the reasons given
earlier.
90.
Accordingly the plaintiff may well have been able to find equally
competent experts locally. Only convenience resulted in their
appointment.
ORDER
91.
I accordingly granted an order that;
1.
The negligence of the staff of
the Chris Hani-Baragwanath Hospital on 24 and 25 May 2008
caused the brain damage suffered
by the minor child, Zamokuhle Khoza;
2.
The defendant is ordered to pay
100 % of the agreed or proven damages of the plaintiff acting in
her representative capacity
as a result of such brain damage;
3.
The defendant is to pay the
costs of the plaintiff (such costs order to exclude the costs orders
already made) which shall include;
a.
The costs of two counsel and
counsel’s fees in respect of the preparation of heads of
argument;
b.
the costs attendant upon the
obtaining of the medico-legal reports of the following expert
witnesses:
i.
Prof Smith;
ii.
Dr Langenegger;
iii.
Dr van Rensburg;
iv.
Dr Lippert;
v.
Prof Nolte; and
vi.
Prof Lotz.
c.
The preparation, reservation and
appearance fees of Prof Smith, Prof Lotz, Dr Langenegger and Dr
Lippert;
d.
The costs of Prof Smith shall
include the reasonable costs of two return flights by air from Cape
Town to Johannesburg and his reasonable
and necessary accommodation
costs.
SPILG,
J
DATES
OF HEARING: 28 April, 2 May, 5-8 May, 12-15 May,19 and 20 May 2014
DATE
OF ORDER: 2 February 2015
DATE
OF JUDGMENT: 6 February 2015
DATE
OF REVISION: 9 February 2015
LEFGAL
REPRESENTATIVES:
FOR PLAINTIFF: Adv N van
der Walt
Wim
Krynau Attorneys Inc.
FOR
DEFENDANT: Adv
R B
Mkhabela
State
Attorney
1.
[1]
Intra-partum
brain injury is an insult to the brain of the foetus which occurs
during labour. See also Prof Smith’s medico-legal
at p63 para
67.4 (which was not disputed).
[2]
‘
NST’
is the acronym for the Non-stress Test which is a means of
monitoring the foetal heart rate and pattern.