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[2017] ZAGPJHC 101
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P N.O. v Member of the Executive Council for Health and Social Development (Gauteng) (34461/14) [2017] ZAGPJHC 101 (30 March 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 34461/14
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
In the
matter between:
P.: G.
N.O.
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH
AND SOCIAL DEVELOPMENT
(GAUTENG)
Defendant
J
U D G M E N T
FISHER
J
:
[1]
The
plaintiff claims, on behalf of her child, N., now aged 6, damages
arising out of injury to the child’s brain which occurred
some
days after birth. The injury occurred as a result of the development
of high levels of bilirubin in the blood that led to
a condition
called kernicterus – which caused cerebral palsy.
[2] The
plaintiff also claimed an amount for her own damages in respect of
past hospital and medical expenses and general damages
for emotional
pain and shock. This claim was not persisted with.
[3] The
defendant denies liability and, in the alternative, seeks an
apportionment of damages.
[4] This
quantum and merits have been separated in terms of rule 33(4). This
part of the case involves only the determination of
the merits.
[5] The
salient evidence before me reveals the following:
1.
N.
was born at Leratong Hospital, a State controlled hospital in
Krugersdorp, on [….] at 17h25. The birth was full term and
without any complications and N. appeared well at birth.
Breastfeeding was established.
2.
The
plaintiff and N. were discharged at 13h25 on 02 October 2010 on day 1
of life (a 24 hr period
post
partum
being considered medically as day 1 of life).
3.
The
hospital records show that on the day of discharge both baby and
mother presented as healthy.
[6]
The plaintiff testified that, on day 2 of life, all was well. She
brought the child to the home she shared with her mother (i.e.
the
baby’s grandmother) she testified that the child’s
condition was not then noticed by herself or anyone else to
be other
than normal. Most importantly, the child did not, according to the
plaintiff, exhibit any yellowing of the
skin
and/ or eyes.
[7] On
days 3 and 4 of life the child’s condition was, according to
the plaintiff, unchanged. She states that the child was
then
breastfeeding in a way that she regarded as normal. It should be
noted that the plaintiff gave birth to her first child approximately
12 years before the birth of N. and thus had some experience in this
regard, albeit some time before N.’s birh.
[8]
According to her evidence it was only on day 5 (05 October that
she noticed that N. was not “sucking properly”.
She was
concerned about this.
[
9]
The plaintiff thus took N. to a private general practitioner on the
evening of day 5 (05 October 2010), Dr Moosa. Dr Moosa examined
N.
and, according to the plaintiff, found no cause for immediate
concern. Importantly, he did not, according to the plaintiff,
note
any jaundice. Dr Moosa told the plaintiff to express her breastmilk
and bottlefeed N. with this expressed milk.
[
10]
N. did not improve over the night of day 5 and into the next morning.
[11] On
the morning of day 6 of life (06 October 2010) the plaintiff
took N. to the Rietvlie Clinic in Krugersdorp, a State
run
institution, as she remained concerned about N.’s condition.
[
12]
The nurse who examined N. at the clinic was concerned because N.
presented with jaundice and was reported by the plaintiff to
have
been sucking poorly.
[
13]
A report was written at the clinic in order to facilitate the
admission of N. to Leratong Hospital. The plaintiff was told that
she
should take N. to the hospital in order to secure her treatment there
and present the report to attending staff. This report
from the
clinic was placed in evidence. It recorded the nurse’s concerns
and specifically the jaundice, the lack of sucking,
and that the
umbilicus was infected.
[
14]
The plaintiff went directly to the hospital as advised and as
instructed she presented the report from the clinic to the personnel
at the hospital.
[
15]
The plaintiff arrived at the hospital before 12h00 on 06 October 2010
and N. was admitted at 12h20.
[
16]
It
appears from the records that the child’s condition was treated
as an emergency on arrival in that the child’s bilirubin
count
was found to be dangerously high shortly after her admission –
a blood test revealing a count of 715
µmol/l
which
the experts all agreed is dangerously high (the normal count being
approximately 274
µmol/l
and below)
[
17]
It was agreed by all the expert witnesses that the definitve
treatment for the child, given the high billiruben count and her
serious condition, was an exchange blood transfusion.
[
18]
It was accepted by all experts that the requirements for the
transfusion required the ordering of the blood and that this could
take some time as it could involve sourcing a donor and would require
matching and transportation from the National Blood Services
in
Aukland Park to the hospital.
[19] The
indications on the hospital record appear to be that the blood was
ordered almost immediately after admission and that
the child was put
under phototherapy and hydrated whilst waiting to have the
transfusion. This, all agreed, was the indicated treatment
at the
time and that no undue delay in treatment had occurred by this stage.
[
20]
It was
accepted
by the experts that the treatment of the child from admission at the
hospital to the commencement of the transfusion was
acceptable, if
not optimal.
[
21]
The blood must have been received by 21h00 on 06 October 2010 as at
that time the transfusion was first attempted.
[
22]
There are indications that there were numerous attempts on the part
of the attending clinician to put up an arterial line. This
is a line
into an artery which allows for the exchange transfusion.
[
23]
The neonatologists were all in agreement that the setting up of an
arterial line in a neonate is notoriously difficult. It was
agreed
between them that the most elementary approach when conducting an
exchange transfusion was to put up an umbilical line,
which is a line
that goes directly into the umbilical cord of the child.
[24] It
was the evidence of the neonatologist experts it would have been
substantially improbable for any doctor to have resorted
to the
arterial line, if the umbilical line was available to him/her.
[
25]
The likelihood is that the umbilicus was septic and thus was eschewed
by the attending clinician. That there was an infection
is suggested
by the letter from the clinic.
[
26]
The evidence of Dr Mogashoa and Prof Christianson called on behalf of
the plaintiff was that the attending doctor
was, in all
probability, in a serious dilemma: he could risk introducing
infection into the childs blood by inserting the transfusion
line
into the septic umbilicus or continue the difficult task of putting
up an arterial line.
[
27]
It emerges from the records that the latter course was tried by the
attending clinician for some hours with no success. This
resulted in
a delay in administering the transfusion from 21h00 on day 6 to 11h30
on day 7 which included the delay involved in
having to order new
blood – as the blood obtained would have gone “stale”
.
[28] The
transfusion was eventually achieved
via
resort to the
umbilical line. It was started at 11h30 on 07 October 2010 and was
completed by 13h45 on that date.
[29] A
broad spectrum antibiotic, “Claforan” was administered
before the transfusion. It seems probable that this was
because of
the infection in the umbilicus.
[
30]
After the transfusion, the child’s bilirubin count had reduced
to within a normal range.
[31] The
negligence contended for by the plaintiff can be distilled in to the
following;
1.
Failing
to inform the plaintiff that the child must be seen for a check-up by
a trained medical professional on day 3 of life
and /or;
2.
Failing
to treat the child properly from the time that she was presented for
treatment at the Rietvlie Clinic to the time that she
was given the
indicated exchange transfusion at the hospital, and more specifically
that the transfusion was not given timeously.
[32]
The Defendant’s defence is, in essence, a bare denial of
negligence and liability. In the alternative, it contends for
contributory negligence on the part of the plaintiff on the basis
that she did not seek appropriate and timeous treatment for the
child
under the circumstances.
[33] I
will dispose first with the second ground in that it appeared at the
end of the case to be the least contentious. In relation
to this
ground, the enquiry is whether the standard of care that was given to
N. when she was admitted at hospital on 06 October
2010 was adequate.
[34] The
causation element must also be considered in this context. Even if it
is proved that there was negligence in the manner
that N. was treated
at the hospital, the plaintiff would still have to establish that
there was a causative link between such negligence
and the harm that
was suffered by the baby.
[35] The
plaintiff testified herself and called 2 expert witnesses Dr Lefakane
a paediatrician and Dr Diar a paediatrician and neonatologist.
The
Defendant called 3 witnesses, Dr. Cooper, a Neurologist, Dr.
Mogashoa, a Paediatric Neurologist, and Professor Christianson,
a
Paediatrician and Geneticist.
[36] The
experts were in agreement that the cause of the damage to N.’s
brain was dyskinetic cerebral palsy secondary to bilirubin
encephalopathy or kernicterus.
[37]
There is no doubt that the disability suffered is of a very serious
nature. It has resulted in a high level of gross motor
function
impairment and global delay in the development of the child.
[38] Dr
Diar, on behalf of the plaintiff, agreed with Dr Mogashoa and Prof
Cooper that there was in all probability significant
irreversible
damage done to N.’s brain before she was taken to hospital by
the plaintiff on day 6 of life.
[39] It
was the consensus of the experts that it was impossible to determine
how the damage had progressed from the date of admission
and
particularly during the delay in the administering of the transfusion
or to what extent this delay would have exacerbated the
disability.
It was further the consensus that the level of the bilirubin was so
high on admission, that the likelihood was that
a major part of the
damage to the brain had been suffered by the time of arrival at the
hospital. It was also the general consensus
that the damage done
would have been substantially irreversible by treatment at this
stage. Indeed, Dr Mogashoa, who was a most
impressive witness, was of
the view that the efforts of the clinicians treating the child would,
by the stage of admission, have
focused on saving the life of the
child as the priority rather than alleviating any progression of the
damage. It is accepted by
the experts that by the stage of admission
the child was critically ill and had already suffered significant
brain damage.
[40] Mr
Brown, who represented the plaintiff, rightly conceded that, after
the hearing of all the evidence, and with regard to the
substantial
level of agreement between them as to the cause of the damage or put
differently the steps that could have been taken
to avoid the
condition suffered by the child that the likely cause of the cerebral
palsy was the fact that the child was not seen
by a medically trained
person before it was too late to avoid the devastating brain damage
sustained by the child. The experts
were in substantial agreement
that had the child been seen by a qualified medical practitioner on
or before day 3 of life the damage
to N.’s brain would, in all
likelihood, have been prevented.
[41] In
light of the evidence that has been presented and with reference to
the hospital records I cannot find that there was any
negligence in
the treatment administered to the child from the time she was
presented at the Rietvlei Clinic to her discharge from
hospital. The
evidence of the plaintiff’s expert paediatrician was to the
effect that bilirubin tests were done in the private
hospital in
which he was employed, on day 1 and day 3 of birth, and sometimes
even on day 2, in order to attempt observe a trend.
It was conceded
by him that this was an optimal situation and that State facilities
would, most likely, not extend themselves to
this kind of monitoring.
[42]
Accordingly, the second ground of negligence is rejected. I might add
that I was impressed and heartened by the manner in which
the child
and the plaintiff were managed from the time that the child was taken
to the Rietvlie clinic to her discharge from the
Leratong hospital.
The nurse who saw her at the clinic, immediately diagnosed her
condition, was astute to the danger of the symptoms
presented, and
took steps to get the child treated as a matter of urgency. The
staff and doctors at the hospital did the
best that they could, under
trying, circumstances to treat N. in the best way possible.
[43] This
case then turns on the obligations of the State medical facilities
who attend upon the delivery of babies and the immediate
care of
mothers and babies
post partum
to provide information and
direction to mothers to the effect that the babies should be examined
on or before day 3 of life by
a qualified health care practitioner.
[44] The
plaintiff’s evidence was to the effect that she was not told
that the child should be seen by a medically trained
person on day 3
of the child’s life.
[45] The
defendant’s case does not, as I understand it, go as far as to
suggest was not that it was not necessary for the
plaintiff to have
been told this. Instead it contends that there are indications on the
hospital records that she had indeed been
educated, at least, as to
breast feeding and hygiene and that the likelihood was that this
would have included her being told that
she present the child for a
check-up on day 3 of life. Reliance was also placed by the
defendant on the clinic report which
indicted that the child was
presented there “
for the 3 day follow up
”.
[46]
There is currently in place a routine management and information
system which applies nationally and which caters to the presentation
of infants for inoculation and development charting after birth. In
this matter, a chart known as “
The Road to Health
”
was introduced into evidence in relation to N.’s monitoring,
vaccinations, and development. I am told that charts
such as these
are commonly in use in all State hospitals and clinics. They appear
to be part of the national health care protocol
but apply, at least,
in the State facilities concerned in this action. The chart contains
the emblem of the Department of Health
and thus appears to have an
official status. The chart is to be kept by the parent or
caregiver of the child and the following
prominent admonishment is to
be found thereon “
IMPORTANT: always bring this chart when
you visit any health clinic, doctor or hospital and present the chart
on school entry
”. The chart is, on the face of it,
designed to be used as a way of creating and signifying a programme
for the management
of infant health and development. The chart is
constructed in such a way that it allows for information to be filled
in by the
attending clinician or relevant member of the
hospital/clinic staff as a general and accessible record of the
child’s developmental
and relevant features of health. It also
records the child’s vaccinations. Most importantly, it
provides a direction
to the parent or caregiver of the child to bring
the child in for examination and vaccination at certain determined
intervals.
In this regard there is provision made on the chart for
the attending medical practitioner to note thereon in manuscript when
the
child should next be seen at the clinic or other medical
facility. This is obviously vital to preserve continuity in relation
the
monitoring of the child.
[47] It
was accepted by the experts that the first 3 days of life are
regarded generally as being crucial in monitoring an infant
with
reference to the condition that occurred in this case and generally.
Optimally, the mother and child would remain in
hospital for
this period or would be visited at home within this period. However,
it is accepted that over-crowding and limited
resources in State run
facilities makes this impossible from a general perspective. For the
most part, when mothers and infants
present as healthy at birth they
are swiftly discharged. In this instance, discharge took place within
24 hours of birth.
[48] In
this case the chart indicated to the plaintiff that she should make
her first a clinic visit only after “
6 weeks
”. Had
she been told clearly and had it been noted on the chart that she
should visit a clinic or hospital on day 3 of life,
I must assume
that she would have followed this direction. The need for vaccination
and adequate childcare is clear. It protects
the individual child and
the broader public interest. It seems that it would not be unduly
onerous to the State for a parent/ caregiver
of a child who is
discharged before day 3 of life to be directed that she/he should
have the child assessed at a clinic, hospital,
or other equivalent
service on day 3 of life. That a service to so monitor neonates
should optimally be available was accepted
by all experts in this
matter. It seems that such a system is already, informally at least,
accommodated within the system. The
chart relied on by the parent of
the child should denote a 3 day follow up for early discharge babies.
[49] On
this point generally, in their paper, “
Kernicterus in
Otherwise Healthy, Breastfed Term Newborns”
(Paediatrics
1995 ; 96 (4): 730-733) which was commended to me by Prof.
Christianson, - M Jeffrey Maisels (MB,BCh) and
Thomas B.
Newman (MD,MPH) state the following (at p 733) with reference to the
prevention of kernicterus in early discharge neonates:
“
To
address this issue, the American Academy of Paediatrics recommends
that ‘follow-up should be provided to all neonates discharged
less than 48 hours of birth by a health care professional in an
office, clinic, or at home within 2 to 3 days of discharge”
The
learned authors go on to state further (at p 773):
“
Experience
suggests that asking mothers to observe infants for the
development of jaundice is not satisfactory. Despite
such
instructions, it is difficult for many parents to recognize
significant jaundice.”
[50]
There was no direct evidence led to contradict the plaintiff’s
evidence that she was not told to seek the exmination
of N. on or
before day 3 of life. Her evidence that she was not given any
education as to dangerous signs to look out for, such
as jaundice,
was also not contradicted by any direct evidence. I accept that she
was not given this advice and education. South
Africa is a
progressive part of a global community which has the priviledge of
contributing to and benefiting from global developments
in medicine.
It seems that monitoring of infants in the crucial days after birth
is an important part of being in accord with these
global
developments and to my mind it is not disproportionately onerous for
the State to be required put in place the mechanisms
to achieve this.
[51] This
brings me to the defendant’s claim that I should find that
there was contributory negligence on the part of the
plaintiff in
relation to her failure to monitor the child for jaundice and other
signs that something was wrong and take appropriate
steps.
[52] It
is clear that the plaintiff took steps to seek medical help soon
after she realized the child was not sucking properly at
the breast.
The lack of ability to suck was accepted by all the experts as being
a classic sign of early but significant brain
damage. The
plaintiff took the child to a general practitioner only to be told
that there was nothing seriously wrong with
the child and that she
should resort to bottle feeding. That Dr Moosa did not recognize that
the child was jaundiced was strange.
All the experts agreed that, by
that stage (day 5) the jaundice should have been appararent to a
doctor. Dr Mogashoa testified
however that she was told by the
plaintiff that when she took the baby home people who saw the baby
did comment on the child being
“
yellow
”. The
plaintiff denies this. I must take into account on this score the
evidence that Dr Moosa did not recognize the child
as showing signs
of being severly jaundiced.
[53] I
must accept that the probabilities support the version that the
plaintiff was not told that the child should be seen by an
appropriate medical practitioner at or before 3 days of life or, at
least, educated as to possible symptoms exhibited by the child
which
could be dangerous. I thus cannot find that she was culpable in
missing the signs of jaundice in the child or failing to
comprehend
the seriousness of the condition of the child. I take into account
also that, nothwithstanding being told by Dr Moosa
that there was
nothing seriously wrong with the child, she disregarded this patently
incorrect advice, and took the child to the
clinic early the
following morning.
[54] I
accordingly find that the defendant was negligent in the
circumstances of this case in failing to put in place structures
which would, as a matter of procedure, inform the plaintiff that she
should have the child assesed by an appropriately qualified
medical
practitioner by day 3 of life and that this failure caused the damage
in issue.
I thus
make the following order:
1.
The question of
liability is determined in favour of the first plaintiff in respect
of the claim made on behalf of her minor child,
N. P..
2.
The costs of this
separated issue are awarded to the first plaintiff to the extent of
her claim made on behalf of the minor child
N. P..
_______________________________
D
FISHER
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION
Date
of Hearing:
27
February – 03 March 2017
Judgment
Delivered:
30
March 2017
APPEARANCES:
For
the Plaintiff:
Adv
Brown instructed by Sepamla Attorneys
For
the Defendant :
Adv
Zulu instructed by the State Attorney