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[2016] ZAGPJHC 295
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N obo N v Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government (2012/35886) [2016] ZAGPJHC 295 (26 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION – JOHANNESBURG
CASE
NO: 2012/35886
In the
matter between:
N. X.
obo S.
S. N.
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH AND SOCIAL DEVELOPMENT OF
THE
GAUTENG PROVINCIAL GOVERNMENT
Defendant
JUDGMENT
MAILULA
J:
[1] The
Plaintiff sues the Defendant in her representative capacity as the
mother and natural guardian of the minor child S. S.
N. (“S.”),
for damages as a result of alleged negligence of the medical/nursing
staff of Zola Clinic and/or Chris Hani
Baragwanath Hospital.
[2] At
the commencement of the hearing of the matter the parties applied for
separation of the issues of liability and quantum in
terms of Rule
33(4) of the Uniform Rules of Court. An order was accordingly
granted. The question of the quantum of damages was
postponed sine
die. The matter proceeds on the issue of liability only.
[3]
The Plaintiff avers that at all relevant times the Defendant:
“
was
under a legal duty of care to ensure the rendering of medical care,
treatment and advice to Plaintiff with such skill, care
and diligence
as could reasonably be expected of medical practitioners and nursing
staff in similar circumstances, obliging the
Defendant to ensure that
proper, sufficient and reasonable health services are provided to
members of the public” and that
“the aforesaid legal duty
of care extended to [the minor child] S. (initially as an unborn
child and subsequent to his delivery
as a baby).
[4]
Further, that the Defendant breached his duty of care in that the
minor child S. developed complications in that he suffered
bilirubin-induced brain damage, alternatively known as kernicterus,
as a result of which he is suffering from cerebral palsy, mental
retardation and epilepsy whilst under the care, management and
treatment of the Defendant, his employees and/or his authorised
representatives,. She alleges that the minor child S. suffers from
the condition aforesaid as a result of the Defendant’s,
her
employees’ and/or her representatives’ negligence. She
avers that:
“
The
Defendant was negligent in one, more or all of the following
respects:
7.1.1 he
failed to permanently, alternatively, temporarily employ the services
of suitably qualified and experienced medical practitioner
who would
be available and able to examine, manage and/or give appropriate
advice in respect of S.’s neo-natal care;
7.1.2 He
failed to permanently, alternatively, temporarily employ the services
of suitably qualified and experienced nursing staff,
who would be
able to assess, monitor and/or manage S.’s development and
condition;
7.1.3 he
failed to ensure that Zola Clinic and/or Chris Hani Baragwanath
Hospital was suitably, adequately and/or properly equipped
to allow
for the proper treatment of S.’s condition if and when
required;
7.1.4 he
failed to take any and/or all reasonably required stepsto ensure the
proper, timeous and professional assessment of S.’s
jaundice
and their monitoring and management of his condition;
7.1.5 he
failed to implement such steps as could and would reasonably be
required to prevent the occurrence and/or the severity
of the
complication;
7.1.6 he
failed to avoid the complication when by the exercise of reasonable
care and diligence, he could and should have done so.
7.2 The
Defendant’s aforesaid employees and/or authorized
representatives were negligent in one or more or all of the following
respects, in that he/she/they:
7.2.1
failed to obtain important obstetric history relating to the
Plaintiff’s first child who suffered from neonatal jaundice
and/or they disregarded the history and/or they failed to act
appropriately on said history;
7.2.2
failed to acquire important medical history of the Plaintiff’s
first child who was born at the Zola Clinic in 2008 and
who passed
away four days after birth as result of jaundice and/or they
disregarded the history and/or they failed to act appropriately
on
said history;
7.2.3
failed to refer S. to a higher level of care based on the Plaintiff’s
obstetric history;
7.2.4
failed to identify S. as being a high-risk foetus/baby based on
previous obstetric history after delivery;
7.2.5
discharged S. from hospital less than 12 hours after he was delivered
and not taking cognizance of the fact that the Plaintiff’s
first baby passed on as a result of early (pathological) jaundice;
7.2.6
failed to admit S. to the clinic for a longer period in order to
adequately and properly manage the possibility of the development
of
early jaundice;
7.2.7
failed to act and administer treatment to S. where the jaundice was
clinically observable upon his discharge on 24
th
of February 2009;
7.2.8
failed to maintain standards of care with regard to the approach and
management of a baby with jaundice when neglecting to
admit S. during
his visit to Zola Clinic on the 27
th
of February 2009;
7.2.9
failed to conduct serum bilirubin blood tests to determine whether S.
was suffering from jaundice and if so, what the severity
thereof was;
7.2.10
failed to timeously conduct a blood test and to correct dehydration
and acidosis which resulted in a further risk for the
development of
bilirubin-induced encephalopathy;
7.2.11
failed to prompt the following interventions and/or neglecting to
timeously administer the following interventions:
7.2.11.1
Immediate and effective phototherapy;
7.2.11.2
Correcting dehydration and acid-base disturbances;
7.2.11.3
Performing an exchange transfusion with urgency and within a
reasonable period after admission;
7.2.11.4
The administering of intravenous antibodies.
7.2.12
failed to provide and/or render the requisite reasonable neo-natal
medical, surgical and nursing care with such professional
skill and
diligence as could reasonably be expected of medical practitioners in
the particular circumstances;
7.2.13
failed to prevent S. from suffering a bilirubin-induced incident,
causing him to sustain severe brain damage, as a result
of which he
is suffering from cerebral palsy, mental retardation, epilepsy and
hearing loss when, by the exercise of reasonable
skill, care and
diligence, it could and should have been prevented.”
[5] The
defendant denies that he/his employees/his authorized were negligent
as alleged or at all. In response to the Plaintiff’s
request to
indicate in precise and narrow terms exactly what the Defendant’s
version is in respect of the issue of liability,
and which
allegations of negligence the Defendant denies and which allegations
the Defendant admits, the latter formulated her
defence as follows:
5.1
The minor child was discharged on the 13 March 2009 in a satisfactory
condition;
5.2
The minor child was admitted again at Chris Hani Baragwanath hospital
on the 16 July 2009
and diagnosed with
ACUTE GASTRO ENTERITIS
;
5.3
The Plaintiff reported that she was using “muthi wenyoni”
until the child was
four (4) months until she was advised by the
hospital to stop doing so;
5.4
It is the defendant’s case that both conditions for which the
minor child was admitted
for on the 27
th
February 2009
till 13
th
March 2015 [sic] and again on the 16 July 2009
have an adverse impact on the Neurological system and may result in
brain injury;
and
5.5
It will be Defendant’s case that on 13
th
March 2009 when the minor child was discharged he was neurological
[sic] intact and had not been diagnosed with cerebral palsy.
[6]
The parties are agreed that;
6.1
The Plaintiff is the biological mother of the minor child S.;
6.2
The minor child was born on the 23
rd
February 2009 at the Zola Clinic;
6.3
The minor child was delivered at 21:10 on the 23
rd
of
February 2009;
6.4
The Plaintiff and the minor child were discharged from Zola Clinic on
the 24
th
of February 2009;
6.5
in so far as the State Liability Act is concerned, the Defendant was
during 2009 the person responsible
in law in respect of any and
all contractual and delictual liability of the Department of Health
and Social Development of
the Gauteng Province;
6.6
During February 2009 both Zola Clinic (“the clinic”) and
the Chris Hani Baragwanath
Hospital (“the hospital”)fell
under the authority of, alternatively, was controlled, further
alternatively, was operated
by the Department of Health and Social
Development of the Gauteng Province;
6.7
In light of the fact that the Plaintiff has successfully applied for
condonation for her
non-compliance with the provisions of the
Institution of Legal Proceedings Against Certain Organs of State Act
No 40 of 2002
, the Defendant withdrew the special plea.
6.8
The hospital records were completed by the hospital staff, acting
within the scope of their
employment;
6.9
The minor child was diagnosed with jaundice at the hospital on the
27
th
February 2009.
[7] The
Court is seized with the questions of negligence and causality.
[8] The
Plaintiff testified that she was born on 27 January 1993. She
admitted that she had lied about her age to the staff at the
clinic
when her particulars were entered on the antenatal card at Zola
Clinic. She was at the time 15 years of age when she
fell
pregnant with and gave birth to her first born child S. on [....]
2008. The first born child passed away five
days later.
The cause of death was kernicterus. She fell pregnant with the
second born child S.. She attended antenatal care
at Zola clinic. S.
was born on [....] 2009 at the clinic. Both mother and child were
discharged the following day. She was
told to take the child
back to the clinic three days later. At the stage of the
discharge she noticed nothing untoward about
the child but a day
later she noticed the yellowing of the skin on the forehead and on
the nose. She also noticed that the child
was not feeding well. On
the morning of 27
th
February she did return to the clinic. The child was weighed. It
appears that it had lost som weight already. The weight at birth
was
recorded as 3000g and she said that the child weighed less than three
days later. She reported to the staff that she thought
the child has
jaundice. It was confirmed that the child was suffering from
jaundice. She was advised to keep the child in
the sun and that the
condition would improve. She went back home. It appears that
the Plaintiff’s mother was worried
about the minor child’s
condition. The Plaintiff had reported to her that the child’s
weight was two comma something.
She advised the Plaintiff to take the
child to hospital, which she did. After going through the
admission process the child
S. was then admitted to hospital at about
14h30 on the same day. The following day when she went back to
hospital she found
that the child was in high-care. He was detained
in hospital for almost three weeks later. She has since given birth
to another
child. The third born child also presented with jaundice
and she immediately took it to hospital. The child is well.
[9] Prof
Jan Willem Lotz is a neuro-radiologist. His expertise is not in
dispute. He stated that he did an MRI scan on the
minor child.
He identified some abnormality with the child’s brain as
depicted in the images taken. He explained that the
brain damage
suffered by S. was bilirubin induced.
[10] Prof
Johan Smith, a neonatologist gave evidence on behalf of the
plaintiff. In brief his evidence was to the effect that
the
plaintiff lost the first baby at neonatal stage as a result of k
ernicterus. This is jaundice related. This should have alerted
the
staff at Zola clinic to pay more attention to the second born child’
condition. Having regard to the history it would
have been salutary
to send the Plaintiff and child to the hospital for blood test
instead of just sending them home. The blood
test would have
indicated the ABO incompatibility and therefore the possibility of
developing jaundice. Preventative measures would
have then put in
place. Even keeping them at the clinic a bit longer for
observation would have been welladvised in the circumstances
of the
present case. The history put her second pregnancy at high
risk. When the child returned to the clinic on 27 February
2009 and
it was confirmed that the child has jaundice it was not proper for
the nursing staff to send her back home with the illogical
advice to
keep the child in the sun. When the child was later taken to
hospital the treating doctor failed to timeously administer
treatment
to address hypernatremia and metabolic acidosis. The exchange
transfusion was only performed more than seven hours later.
The
reasonable period to perform same given the severity of the child’s
condition would have been four hours. In his opinion
the child was
given substandard management and treatment.
[11] Dr
van Toorn is a paediatric neurologist examined the minor child. He
confirms that S. has cerebral palsy. There is evidence
of athetosis-
slow writhing movements, dystonia as well as involuntary movements of
the mouth and face. He present with a mild
hearing loss on the left
ear . he has impaired upward gaze and the dental enamel on the cusps
of S.’s primary/deciduous teeth
appear severely eroded. The
child’s cannot sit or roll over. He is wheelchair bound. When
pulled to a sitting position
he has head lag. He is unable to lift
his head from pro e position. He speaks with difficulty. Dr Van
Toorn agrees that the
MRI scan shows that the cerebral palsy is a
result of a kernicterus. He is of the opinion that the child should
have been monitored
as high risk. The blood test in casu, were
indicated for ABO incompatibility. There was a need to keep the child
under observation
for a longer period. Discharging the child 9 hors
after delivery was illadvised. The staff at Zola clinic gave
ill conceived
advice which resulted in further delay in treating his
condition. He is of the opinion that the treatment was
substandard
and had the child been given proper treatment the
kernicterus coul and would have been avoided.
[12] Prof
Mothoadire Patience Mawela agrees that the minor child did suffer
brain damage. She was initially of the view that this
could have been
either jaundice related or could have been caused by hypernatremic
dehydration. The hospital records show that
the child was admitted at
age 3days and was diagnosed with jaundice. Later at age 4months he
was admitted with a history of diarrhea
and related dehydration. She
agrees that the minor child qualified as high risk for jaundice and
ought to have monitored and treated
as such. The advice given to
Plaintiff to keep the child in the sun was not in terms of protocol.
She is however aware that sometimes
the mothers are given such advice
at the clinics. She concedes that the minor child’s brain
damage was bilirubin induced.
Brain damage can occur even where the
bilirubin levels are lower than what the child presented with,
namely, 671. She was of the
view that the medical staff at the
hospital did introduce the intervention measures within a reasonable
time. It was pointed out
to her that the exchange transfusion was
performed more than seven hours later and she conceded that there was
a time gap. There
is no evidence that phototherapy was done but she
assumed that it was. She conceded that there should be no delay in
implementing
treatment as severe harm can result.
[13] It
was submitted on behalf of the defendant that both Professors Smith
and Mawela agree that there is no evidence that neurotoxicity
occurs
at a specific bilirubin concentration, and that the minor child, upon
admission, exhibited signs that signified adverse
neurological
impact. According to Prof Mawela some neonates suffer neurological
damage at levels as low as 300 umol/L while others
would survive
levels as high as 500 umol/L. S. presented with levels of
bilirubin at 671umol/L and having regard to the clinical
symptoms
exhibited at the time these evince that he had already suffered brain
damage in the form of kernicterus that is irreversible.
In the
circumstances, the minor child S. had already been in the morning of
27 February and that any intervention or steps taken
at the hospital
could only be damage control measures where kernicterus had already
set in.
[14] The
plaintiff’s evidence shows that that S. presented with the
signs
of brain damage a day
after he was discharged from the clinic. On 25 February 2009 she
noticed that S. was had become yellow on
the nose and the forehead
and that he was not feeding well. The nurses on 27 February 2009
confirmed that he was suffering from
jaundice.
[15]
Further, that having regard to the Bhutani table the minor
child S. manifested clinical signs that fell under each of
the three
columns which is indicative that he had already suffered brain damage
at the stage he experienced poor sucking and decreased
muscle tone,
and definitely at the stage he exhibited lethargy, hypotonia and
decreased muscle tone.
[16] The
clinical records from Zola Clinic reflect that the delivery was
normal. There were no complications. It is recorded that
the delivery
was spontaneous. The baby cried well at birth. The APGAR score was
nine out of ten in the first minute but was ten
out of ten within
five and ten minutes, respectively. Upon neurological examination he
was found to be normal. The minor child
was discharged on 24 February
2009. He was in a satisfactory condition. He was sucking well and his
colour was pink. He was immunised
and given some eye treatment.
Chloromax ointment was administered. Nothing abnormal was detected.
Clearly the jaundice was not
visible according to the examination
including the examination of the minor child’s eyes and skin,
so the argument goes.
[17] It
was argued that the clinic’s nursing staff followed protocol in
respect
of the
Plaintiff’s pregnancy and that they did not act negligently in
deciding to discharge the minor child S. on 24 February
2009.
[18]
Further, that from the history given by the plaintiff and the
clinical signs the child manifested, even before he was taken
to the
clinic, it appears that the bilirubin levels were high enough to have
caused bilirubin induced brain damage. When
he was admitted to
hospital later that day, 27 February 2009, the same clinical were
present and that the interventions by the
hospital medical and
nursing staff could not reverse the Kernicterus but could only reduce
the levels of bilirubin and consequently
loss of life. The
Plaintiff was negligent in that she noticed the onset of jaundice for
two days before taking the child
for medical assistance, and that the
sole cause of or the major contributor to the kernicterus suffered by
S.. In light of the
fact that the kernicterus had had already
occurred the staff at the clinic and the hospital cannot be held
liable even if it could
be found that they failed to uphold the
standard of care as expected of them., as there would be no causal
link between the negligence
of the medical staff, which is denied,
and the brain damage suffered by the minor child S. and the resultant
cerebral palsy.
[19]
there can be no question that the child S. suffered bilirubin induced
brain damage resulting in cerebral palsy. The Plaintiff’s
evidence as to what transpired on discharge and when she took the
child back to the clinic at age three days stands uncontroverted.
There is no reason why same should not be accepted. The fact that she
lied about her age does not mean that she lied about the
advice she
was given. She could not have thumb-sucked this. As Prof Mawela
indicated she is aware that such is sometimes given
at clinics.
Her evidence shows that, given the history of the first pregnancy it
was important that the second child’s
development be monitored
at high level, which the staff at the clinic failed to do. They
should have kept her under observation
for longer. If they did not
have the facilities they should have referred her to hospital. The
need for ABO incompatibility test
was indicated in the present case.
The staff at the clinic did nothing about it. Further when the child
presented with jaundice
on the 27 February 2009 the staff failed to
take appropriate action with the devastating results. When the child
was admitted to
hospital there was a delay in implementing the
intervention measures. As Prof Smith has opined the treatment given
was substandard.
The submission that the Plaintiff was the party who
was negligent is in my view without merit.
[20] It
is clear that the devastating brain damage could and should have
avoided by taking the necessary measures alluded to above.
In the
result, I am of the view that judgment ought to be entered in favour
of the plaintiff.
[21] I
find no reason why costs should not follow the event. It was argued
that the Defendant should be ordered to pay at least
the costs of two
days on the attorney and client costs because the concession that the
brain damage is bilirubin induced came late
in the day. The plaintiff
would still have had to lead evidence to show negligence as well as
causation. The Defendant denied advising
the Plaintiff was not
advised to put the child in the sun and denied breaching protocol or
acting negligently at any stage. In
the premises I am not persuaded
that it would be appropriate to make a punitive costs order.
[22]
Accordingly, judgment is entered in favour of the Plaintiff.
22.1
The Defendant is liable to the Plaintiff for damages in the amount
agreed upon or proved; plus
22.2
Costs of suit.
_____________________________
ML MAILULA
JUDGE OF THE HIGH COURT
Date
of Hearing: 04 May 2015 to 14 May 2015; 21 August 2015.
Date
of Judgment: 26 October 2016
Appearances:
For
Plaintiff: Advocate M Coetzer
Instructed
by: Wim Krynauw Incorporated
For
Defendant: Advocate G Malindi SC with Advocate N Makopo
Instructed
by: The State Attorney, Johannesburg