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[2015] ZAGPJHC 223
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Matlakala v MEC for Health, Gauteng Provincial Government (11/11642) [2015] ZAGPJHC 223 (2 October 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 11/11642
DATE: 02 OCTOBER 2015
In the matter between:
KELEBOGILE MATLAKALA
Obo [
K……..]
..............................................................................................................................
Plaintiff
And
MEC FOR HEALTH, GAUTENG
PROVINCIAL
GOVERNMENT
............................................................................................
Defendant
J U D G M E N T
KEIGHTLEY, AJ:
[1] The plaintiff in this matter,
Kelebogile Matlakala (“Ms Matlakala”) sues on behalf of
her minor son, [K…….].
Her action is against the MEC
for Health in the Gauteng Province (“the MEC”), and
arises out of the alleged negligence
of doctors and nursing staff
employed at the Chiawelo Clinic and the Chris Hani- Baragwanath
Hospital who attended to Ms Matlakala
when she gave birth to [K……..]
in 2004. Ms Matlakala alleges that [K……] suffered
severe brain damage,
and associated conditions, as a result of the
negligence of the hospital staff. She seeks compensation from the
MEC in the form
of an award of both general and special damages.
[2] [K………] is now
almost 14 years old. The damages claim has been pending since 2011.
Ordinarily, I would
have preferred to have finalised the matter and
delivered my judgment far sooner. However, as matters turned out, it
was not possible
to finalise the trial in the initial period
allocated for the hearing, and the trial became part heard. After
all the evidence
had been led, there was a further delay as the
parties undertook settlement negotiations. I was advised in the week
of 21 September
2015 that no settlement had been reached, and I
proceeded to prepare my judgment in the matter.
[3] The merits of the claim were dealt
with by way of a stated case in terms of Rule 33 of the Uniform Rules
of Court.
[4] The material undisputed facts, as
set out in the statement of case, are as follows:
[4.1] On 29 November 2004 at
approximately 12H00 Ms Matlakala, who was pregnant at the time, went
into labour. She went to the
Chiawelo Clinic for assistance.
[4.2] She was examined by staff at the
clinic and informed that her cervix had dilated 1-2cm, and that she
should remain at the
clinic.
[4.3] Up to this point Ms Matlakala had
experienced a normal pregnancy with no complications or illnesses.
She had attended regular
checkups at the Chiawelo Clinic.
[4.4] On the evening of the same day Ms
Matlakala was again checked by nursing staff at the clinic. She was
informed that she was
not dilating sufficiently and would have to be
transferred to Chris Hani-Baragwanath Hospital for further management
of her labour.
[4.5] Ms Matlakala was transferred to
the Hospital at approximately 07H00 on 30 November 2004, and arrived
at approximately 08H00.
[4.6] She was examined by a doctor who
advised her that she required a caesarean section as she had still
not dilated further than
1-2cm.
[4.7] Ms Matlakala was sedated and
received pain injections. She remained in bed in the maternity ward
until 23H00 on 2 December
2004, when a caesarean section was
performed on her.
[4.8] It is common cause that the
labour was a prolonged labour lasting over 70 hours, and that the
caesarean section was required
due to cephalo-pelvic disproportion.
[4.9] It is common cause that the need
for a caesarean section had been diagnosed on 30 November 2004 when
Ms Matlakala was admitted
to Chris Hani-Baragwanath Hospital and
examined by a doctor.
[4.10] [K……] was born by
caesarean section at 23H00 on 2 December 2004 with a recorded birth
weight of 3.3kg and Apgar
scores of 5 at one minute, 6 at five
minutes and 6 at ten minutes.
[4.11] Immediately after [K……..]
was born he was bagged and intubated.
[4.12] Thirty minutes after birth a
paediatrician suctioned meconium from [K……..] ’s
pharynx and continued bagging
him.
[4.13] A diagnoses of meconium stained
liquor with possible meconium aspiration syndrome and possible
pulmonary hypertension was
made, and the baby was admitted to the
intensive care unit.
[4.14] On 3 December 2004 a chest x-ray
showed a right pneumothorax and changes in the lungs fields
consistent with meconium aspiration
syndrome.
[4.15] On 4 December 2004 x-rays showed
a left sided pneumothorax that required draining.
[4.16] On 5 December 2004 [K……..]
suffered cardiac arrest and needed to be resuscitated.
[4.17] On 5 December 2004 a MRI scan of
his brain showed findings consistent with immediate perinatal /
intrapartum / immediate
postnatal hypoxic brain damage also
consistent with a conclusion that he had suffered a stroke.
[4.18] [K……..] now
suffers from spastic dystonic cerebral palsy.
[4.19] The joint minutes of the experts
were accepted as common cause, save for certain aspects, which I will
refer to shortly.
[5] In terms of the stated case, as far
as the merits are concerned, I am required to determine the issues of
negligence and causation.
[6] In essence, Ms Matlakala’s
case is that the clinic and hospital staff acted negligently in
permitting her to undergo a
prolonged labour for an unacceptable
length of time. The prolonged labour led to foetal distress, causing
the foetus to pass meconium,
which was then introduced into the
amniotic fluid while still in utero. At birth, the attending medical
staff acted negligently
in bagging [K……] without first
clearing his mouth and airways of amniotic fluid containing meconium.
The effect
of the bagging was to force meconium into [K……’]s
lungs. This resulted in meconium aspiration syndrome (“MAS”),
and [K…….]’s subsequent cardiorespiratory arrest.
The MAS and cardiorespiratory arrest in turn led to the
presumed
peri-natal ischaemic strokes (“PPIS”) suffered by [K…….],
which is the cause of his spastic
dystonic cerebral palsy.
[7] The crux of the dispute between the
parties arises from the following difference of opinion expressed by
the medical experts
for each of the parties in their joint minute:
“Drs Gericke and Lefakane (for Ms
Matlakala) are of the opinion that a cascade of events initiated by
fetal distress led to
meconium passage in utero resulting in meconium
aspiration syndrome, subsequent cardio-respiratory arrest and these
in turn led
to bilateral PPIS involving both middle cerebral
arteries. Prof Cooper (for the MEC) is of the opinion that meconium
aspiration
syndrome, if this was the cause of the lung disease, was
not necessarily preventable in this case and that recent literature
is
not supportive of the link between perinatal asphyxia and PPIS.
He is of the opinion that, as in most cases of PPIS, the etiology
in
this case is uncertain.”
[8] Ms Matlakala’s experts’
opinion is in line with my summary of her case. Their view is that
the foetal distress
caused a “cascade of events”
culminating in the PPIS and brain damage. Prof Cooper, for the MEC,
on the other hand
disputes that the MAS was preventable in [K…….]’s
case. In addition, he points to recent academic literature
placing
doubt on perinatal asphyxia (lack of oxygen before, during or
immediately after birth) being a cause of PPIS, and he posits
that
the actual cause of [K……..]’s PPIS cannot be
identified.
[9] Two experts testified on behalf of
Ms Matlakala at the trial. Prof Davis, who is a specialist
obstetrician and gynaecologist,
and Prof Gericke, a specialist
paediatrician. One expert, Prof Cooper, testified for the MEC. He
is also a specialist paediatrician.
[10] It is not necessary to set out a
full summary of the evidence of each witness. As I will indicate in
my analysis of the evidence
on the material issues, there is much
common ground between them, and where there is a difference of
opinion, it is easily identifiable.
[11] The first material issue to
consider is whether there was negligence on the part of the clinic
and/or hospital staff. There
are two aspects to this issue. First,
was there negligence in permitting Ms Matlakala to undergo a
prolonged labour of approximately
70 hours. The second aspect is
whether the staff on attendance at the birth acted negligently in
bagging [K…….]
without first clearing his air passages.
[12] As regards the aspect of Ms
Matlakala’s long labour, it was common cause between the
parties that the pre-birth hospital
records could not be located.
Consequently, there was no evidence of the details of the actual
medical care that Ms Matlakala
received during her labour, and the
decisions made by the attending staff. However, there are general
guidelines regulating safe
labour practices in hospitals in South
Africa, and evidence was presented to the court in this regard.
[13] Prof Davis addressed the question
of the acceptable time lapse between a diagnosis of the need for a
caesarean section during
labour, and carrying out the operation. He
testified that the international standard is 30 minutes. However,
the accepted guideline
in South African state hospitals is 1 hour.
In other words, a caesarean should be performed within 1 hour of the
need for the
procedure being diagnosed in a labouring patient.
[14] As far as the total length of
labour is concerned, according to accepted guidelines, this should
not exceed 14 hours. Once
a labour progresses beyond this period,
the baby may go into foetal distress, causing hypoxia. This raises
the risk of the baby
becoming acidotic, i.e. there is increased
acidity in the blood and other tissue. It also stimulates bowel
movement by the baby
in utero, with meconium being introduced into
the amniotic fluid. Babies who are born in these circumstances are
often in poor
condition at birth.
[15] Prof Cooper did not dispute that
the guidelines required a caesarean to be performed within one hour.
Under cross-examination
he accepted that after a 70-hour labour, it
was objectively likely that the baby was suffering from foetal
distress at the time
of his birth.
[16] Ms Matlakala’s 70-hour
period of labour was well outside of the accepted guidelines
applicable in state hospitals. On
the facts set out in the stated
case, the need for a caesarean was identified on her admission to the
hospital on the morning of
30 November 2004. The procedure was only
performed more than 2 ½ days later. There is no explanation
for this delay.
The only reasonable inference to draw in these
circumstances is that the delay was caused by negligence on the part
of the hospital
staff in failing to ensure that the procedure was
performed timeously, and in permitting her labour to proceed for an
unacceptable
period of time.
[17] The second aspect of negligence
relates to the conduct of the hospital staff at the birth. It is
common cause that [K………]
required resuscitation
at birth. The medical notes record that when the paediatrician
arrived after birth he found medical staff
bagging the baby. In
other words, they were using a hand-operated apparatus to squeeze air
through his airways into his lungs.
[18] Prof Davis testified that when a
baby is born its mouth will be full of amniotic fluid. A health,
active baby will cough out
the fluid when it makes its first cry.
However, a baby that requires resuscitation because it is not
breathing will not be able
to clear the amniotic fluid from its
mouth. If there is meconium in the fluid this introduces an
additional danger. Meconium
is acidic and it should not be
swallowed. Where there is meconium staining visible in the amniotic
fluid at birth and the baby
requires resuscitation it is necessary to
first suck the meconium from the mouth and airways. If this is not
done, the bagging
will have the effect of forcing the meconium into
the lungs. If this occurs, the meconium gets trapped in the lungs,
ultimately
causing MAS.
[19] Prof Davis testified further that
it is a requirement in state hospitals to have a person skilled in
resuscitation at every
caesarean birth. This need not necessarily be
a paediatrician, but it should be someone who is competent in
resuscitation techniques.
A skilled person would not resuscitate a
non-vigorous baby using the bagging technique without first checking
the airways and
clearing any meconium in circumstances where there is
meconium staining in the amniotic fluid. To do so would represent
sub-standard
care.
[20] Under cross-examination Prof
Cooper for the MEC agreed with Prof Davis’ opinion that a
skilled person should have been
present at [K…….]’s
birth. He also accepted that from the medical notes it appeared that
no-one had cleared
[K……..]’s airways of meconium
before bagging him. It was only after the paediatrician arrived and
took over
that meconium was cleared from his pharynx.
[21] Prof Cooper did not immediately
concede that the effect of bagging [K…….] without
clearing the airways would
have forced meconium into his lungs. His
initial view under cross-examination was that this was not
necessarily the case. However,
when pressed, he ultimately agreed
that it was likely that [K…….]’s MAS was caused
by him being bagged without
his airways being cleared of meconium.
Furthermore, he agreed that this constituted negligence on the part
of the medical staff
present at the birth. He also agreed that
[K……..] was likely to have been suffering foetal
distress at the time
of his birth. His view was that in cases of
foetal distress, an expert should be present at the delivery. Under
cross-examination
he accepted that it would be negligent not to have
a skilled resuscitation expert on hand at a delivery in those
circumstances.
[22] In the circumstances, I find that
there is sufficient evidence demonstrating negligence on the part of
the hospital staff in
the manner in which they resuscitated [K…….].
There was also negligence in the failure to ensure that the
paediatrician,
or another competent person, was present at the time
of the birth. The paediatrician arrived too late to prevent [K……..]
from being bagged without the meconium first having been cleared from
his airways. It is common cause that there was meconium
staining in
the amniotic fluid, and proper steps ought to have been taken to
prevent or reduce the risk of the meconium entering
[K…….]’s
lungs. This was not done.
[23] Accordingly, I find that Ms
Makalaka has satisfied the negligence requirement of her claim.
[24] I turn to consider the issue of
causation.
[25] There was some initial dispute as
to whether it could be concluded with any certainty that [K…….]
was diagnosed
with MAS in the days following his birth, or whether
pneumonia was a possible diagnosis. Ms Matlalaka’s experts
were of
the opinion that there was a MAS diagnosis. In his evidence
in chief Prof Cooper’s view was that although it can never be
stated with certainty, the probable diagnosis was MAS. As I have
already indicated, he also conceded under cross-examination that
it
was likely that the MAS was caused by the medical staff proceeding to
bag [K…….] without first clearing his airways.
[26] In the circumstances, I proceed on
the basis that on the probabilities, [K……..] developed
MAS after his birth,
and that this was caused by the resuscitation
method used by the medical staff on hand at the delivery.
[27] The main dispute between the
parties on the issue of causation is whether it can be concluded that
the MAS was the probable
cause of the PPIS, or strokes suffered by
[K……..] that have left him with spastic dystonic
cerebral palsy.
[28] As I noted earlier, both experts
who testified for Ms Matlalaka concluded that the most probable cause
of the PPIS and resulting
spastic dystonic cerebral palsy was the
cascade of events flowing from [K……..’s] foetal
distress, asphyxia,
MAS and cardiorespiratory trauma flowing from the
circumstances of his birth. Prof Cooper’s main point of
departure from
this view was based on recent literature that, in his
opinion, does not establish a link between perinatal asphyxia and
PPIS.
In his view, the literature also does not identify cardiac
arrest as a risk factor for PPIS. Prof Cooper’s view, based on
the literature and his own expert opinion, was that the causes of
PPIS are poorly understood, and that it is often not possible
to
identify a determinative cause.
[29] Prof Cooper expressed the view in
his oral testimony that it was possible, but not probable, that the
hypoxia and cardiorespiratory
arrest caused the strokes. He
explained his view by stating that because the causes of PPIS are not
well understood, the actual
causes of the PPIS in [K…….]’s
case could not be determined conclusively.
[30] However, in cross-examination, he
conceded that [K……] was severely ill following his
birth, and that a sick baby
is at a higher risk of PPIS than a
healthy baby. He conceded that if steps had been taken to ensure
[K……..]’s
health, he would have been at a lower
risk of developing PPIS.
[31] In my view, it is not necessary to
resolve the academic disputes in the literature in order to reach a
conclusion on the issue
of causation. I accept that the causes of
PPIS are not well understood. I also accept that it is always
possible that [K……]’s
strokes were caused by
factors completely unrelated to the circumstances of his birth. It
is not possible to determine with any
certainty what caused them.
However, these are civil proceedings. Civil proceedings are all
about probabilities, not absolutes.
Even the MEC’s expert,
Prof Cooper, accepts that the asphyxia and cardiac arrest were
possible causes of the PPIS. He also
accepts that [K…….]
was at greater risk of PPIS because of his poor state of health. In
my view, the probabilities
in this case overwhelmingly come down in
favour of the view of Ms Matlakala’s expert witnesses. The
most probable cause
of the PPIS was the “cascade of events”,
described earlier, flowing from the initial foetal distress. This
caused
the introduction of meconium into the amniotic fluid, and the
hypoxia. [K……..]’s condition was compromised
by
the MAS he developed as a result of the resuscitation attempts at
this birth, and his cardiorespiratory problems. In these
circumstances, in my view it is more probable that the PPIS was a
culmination of these traumatic events rather than it being a
completely isolated and unrelated event.
[32] In the circumstances I find that
Ms Matlakala has succeeded in establishing that [K……..]’s
spastic dystonic
cerebral palsy was caused by the negligence of the
hospital and medical staff who attended Ms Matlakala during her
labour and at
the birth of [K…….].
[33] Therefore, on the merits, I find
in favour of Ms Matlakala. It is common cause that the MEC is liable
for the negligent conduct
of staff members involved in the provision
of health care in the clinic and hospital in which Ms Matlakala was
treated. There
is no question of contributory negligence in this
case, and the MEC must be held to be solely liable.
[34] On the issue of quantum, counsel
for Ms Matlakala submits that an amount of R1, 5000 00. 00 in respect
of general damages is
appropriate. The expert reports submitted in
support of the claim indicate that [K……..] is totally
uncommunicative
and unalert. He does not make eye contact with
anyone and cannot communicate by means of facial expressions. He has
never learned
to sit, stand or walk. He is regarded as ineducable.
He will never be able to walk. He has been assessed as having the
lowest
level of gross motor function classification, and all areas of
motor function are affected. He produces sounds, not words and his
higher mental functions are severely disabled with no purposeful
function. He has no social activity. He needs constant care
for
event the most basic functions. His condition is irreversible.
[35] This is a case involving
substantial levels of pain, suffering and disablement, with a
devastating loss of the amenities of
life. In my view, an amount of
R1,5 million for general damages is appropriate in a case of this
nature.
[36] As regards special damages in the
form of future loss of earnings, Ms Matlakala’s actuary, Mr
Jacobson, has estimated
an amount of R1, 607 244.00, including a 20%
contingency. The defendant did not make any contrary submissions in
this regard.
In the circumstances, I accept the amount as calculated
by Mr Jacobson.
[37] The major difference between the
plaintiff and defendant is in relation to the costs of caregivers and
residential care. Here
there is a difference between the parties in
the amount of R3, 202 850. 00. Mr Jacobson indicates that the figure
reached by him
is based on 3 caregivers at a cost of R8 350 per month
over a period of 13 months per annum until [K…….] turns
30.
This is to make provision for relief caregivers and an annual
bonus. Mr Kramer’s calculation on behalf of the MEC is based
on 2 caregivers at 12 months per annum. He makes no provision for
relief caregivers.
[38] It seems that both parties accept
that [K……] requires the assistance of 2 caregivers at a
time. The question
is how best to provide for relief caregivers
while the permanent caregivers are on leave, and for an annual bonus
for the permanent
caregivers. In my view, this will be adequately
provided for by way of a calculation of an amount based on 2
caregivers, at the
rate indicated by Mr Jacobson, for 14 months per
annum each. This calculation should be made up until the age of 30
years. Thereafter,
Ms Matlakala will be entitled to the amount
calculated by Mr Jacobson for residential care for [K……].
[39] As far as the other disputed
aspects between the calculations by Mr Jacobson and Mr Kramer are
concerned, I find as follows:
[39.1] I accept the amounts calculated
by Mr Jacobson based on Prof Erksen’s report, as set out in
paragraph 2 of Mr Jacobson’s
report dated 23 June 2015.
[39.2] I accept the amounts calculated
by Mr Jacobson based on Mrs Aires and Dr Mosisi’s report, as
set out in paragraph 4
of Mr Jacobson’s report dated 23 June
2015.
[39.3] The remainder of the itemized
differences between the parties in paragraphs 3, 5 and 7 of Dr
Jacobson’s report dated
23 June 2015 relate to various smaller
items in respect of which it seems the parties cannot agree. Without
the benefit of having
heard specific submissions from either of the
parties in this regard, the most equitable solution I am able to
reach is that these
differences should be split between the parties.
[40] Save for the above, Ms Matlakala
is entitled to the amounts calculated by Mr Jacobson as set out in
appendix 1 attached to
his report of 23 June 2015.
[41] I accordingly make the following
order:
1. The defendant shall pay to the
plaintiff, in her representative capacity as mother and natural
guardian of [K…….]
[M…….] (“[K……]”),
the following amounts:
1.2 R1, 5 million for general damages;
1.3 R1, 607 244.00 for future loss of
earnings;
1.4 In respect of the cost of care for
[K…….], an amount calculated on the basis of two
caregivers, at the rate identified
by Mr Jacobson in his report of 23
June 2015, for 14 months per annum for the period until [K……]
turns 30 years old,
and, in addition, the amount calculated by Mr
Jacobson in the aforesaid report for [K……’s]
residential care
for the period from the age of 30;
1.5 An amount calculated on the basis
of the total of the remainder of the medical and non-medical costs
itemised by Mr Jacobson
in appendix 1 of his report of 23 June 2015,
save that in respect of the differences between plaintiff and
defendant indicated
by the amounts identified in bold and underlined
in paragraphs 3, 5 and 7 of page 2 of Mr Jacobson’s report
(“the identified
amounts”), Mr Jacobson’s
calculation in favour of the plaintiff must be reduced by half of
each of the identified amounts.
2. Interest on the aforesaid amounts at
the rate prescribed in terms of
section 2A
of the
Prescribed Rate of
Interest Act 22 of 1975
from the date of judgment.
3. Du Plessis Attorneys are directed to
cause a deed of trust, to be named the [“K…….]
Trust” to be registered
by the Master of the High Court
incorporating the provisions normally to be found in an inter vivos
trust within 3 (three) months
of the date of this Order, or such
longer period as the Master may on application direct, with the
following additional provisions:
3.1 that there will be, if practically
possible, three trustees consisting of the plaintiff, an attorney and
a chartered accountant;
3.2 that the trustees appointed or
their successors in title shall have the powers of assumption;
3.3 the trustees shall be exempt from
furnishing security;
3.4 the trustees shall hold and
administer the trust fund for the benefit of [K……..];
3.5 the Trustees shall apply the nett
income of the Trust fund for the maintenance and benefit of [K……..]
and, if
at any time it is not adequate for the purpose, the capital
thereof;
3.6 the Trust shall terminate on the
death of [K…….], alternatively in accordance with the
Trust Deed.
4. The defendant is ordered to pay the
plaintiff’s party and party costs of suit.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Dates Heard: 12 & 30 June 2015
Date of Judgment: 2 October 2015
Counsel for the Applicants: Adv D
Brown
Instructed by: Du Plessis Attorneys
Counsel for Respondent:Adv URD
Mansingh
Instructed by: State Attorney,
Johannesburg