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[2018] ZAGPJHC 77
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M OBO M v Member of the Executive Council for Health of the Gauteng Provincial Government (2014/32504) [2018] ZAGPJHC 77 (20 April 2018)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/32504
In the matter between:
M, A
obo
L
M
Plaintiff
and
THE MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH
OF THE GAUTENG PROVINCIAL
GOVERNMENT
Defendant
SUMMARY
Delict – claim for damages – medical negligence –
clinic and hospital medical staff – causation –
onus
of proof – evidence of single witness not controverted by
defendant – plaintiff succeeding in making out a
prima facie
case against defendant’s employees –
Delict – duty of care owed to plaintiff and her unborn baby –
defendant and nursing staff failing to keep patient’s
hospital/medical records – contravention of
sections 13
to
17
of the
National Health Act 61 of 2003
as well as guidelines for good
practice – ethnical guidelines of Health Professions Council of
South Africa (HPCSA) –
and guide for maternity care in South
Africa and the Rules of the South African Nursing Council in terms of
the Nursing Act 50
of 1978 – crucial importance of patients’
hospital/medical records particularly in civil litigation.
J U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1] The plaintiff has instituted action against the Member of the
Executive Council for Health of the Gauteng Provincial Government
(“
the defendant
”) in her representative capacity
as the mother and the guardian of the minor child L M (“
L
”).
[2] For present purposes, paragraphs 4, 5, 7 and 8 only of the
particulars of claim are relevant. These allege as follows:
“
4.
4.1 On the 17
th
of May 2010, Plaintiff
went to Mohlakeng Clinic for the birth of her child after which she
was transferred by ambulance to Leratong
Hospital, with her then
unborn son, L.
4.2 Plaintiff endured several hours of labour in circumstances
where a Caesarean section was indicated.
4.3 On the 17
th
of May 2010, L was born
by normal vaginal delivery.
4.4 As a result of the prolonged labour and failure to timeously
perform a Caesarean section to deliver L, L was diagnosed as
suffering
from cerebral palsy, due to asphyxia during Plaintiff’s
labour and/or during L’s delivery and/or birth.
5. As a result of Plaintiff’s prolonged labour and the
failure to timeously perform a Caesarean section to deliver L, L
suffered
a hypoxic-ischaemic incident due to perinatal asphyxia,
causing him to sustain severe brain damage, as a result of which he
is
suffering from cerebral palsy, mental retardation and epilepsy
(‘the complication’).
6.
6.1 The complication occurred as a result of the negligence of the
Defendant, alternatively, as a result of the negligence of the
Defendant’s employees and/or authorized representatives,
further alternatively, as a result of the combined and cumulative
negligence of the Defendant, his aforesaid employees and/or agents.
6.2 The aforesaid negligence constitutes a breach of the legal
duty which rested on the Defendant, his employees and/or his
authorized
representatives.
7.
7.1 The Defendant was negligent in one, more or all of the
following aspects:
7.1.1 he failed to permanently, alternatively, temporarily employ
the services of a suitably qualified and experienced medical
practitioner
who would be available and able to examine, manage
and/or give appropriate advice in respect of a patient’s labour
(particularly
the Plaintiff) and to perform a Caesarean section if
and when required at the aforesaid hospital;
7.1.2 he failed to ensure that at least one medical
practitioner as referred to in paragraph 7.1.1 above was in
attendance
at all material times;
7.1.3 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 the Plaintiff’s
labour;
7.1.4 he failed to ensure that Mohlakeng Clinic and/or Leratong
Hospital was suitably, adequately and/or properly equipped to enable
timeous and proper performance of a Caesarean section if and when
required;
7.1.5 he failed to take any and/or all reasonably required steps
to ensure proper, timeous and professional assessment of patients,
their monitoring and management of labour and assistance at birth
process;
7.1.6 he failed to implement such steps as could and would
reasonably be required to prevent the occurrence of the complication;
7.1.7 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 properly and/or sufficiently assess and examine
the Plaintiff upon her admission;
7.2.2 failed to monitor Plaintiff’s labour and foetal
well-being appropriately, with sufficient regularity, or at all;
7.2.3 failed to note or appreciate, either sufficiently, timeously
or at all, the Plaintiff’s labour was not progressing
appropriately
or as required in the circumstances;
7.2.4 failed to request assessment and/or examination of Plaintiff
by a qualified medical practitioner upon her admission to the
Mohlakeng Clinic and/or Leratong Hospital;
7.2.5 failed to perform or
request performance of accurate and/or proper cardio-topographic
tracings (‘CTG tracings
’)
of the foetal heart
rate and maternal contractions and/or failed to recognize that the
foetal heart rate on the cardio-topograph
was completely
unsatisfactory;
7.2.6 failed to monitor the foetal heart rate appropriately,
timeously or with sufficient frequency and/or at all and/or failed to
detect that L was in foetal distress;
7.2.7 failed to note and/or appreciate the significance of the
lack of appropriate and/or timeous progress of Plaintiff’s
labour;
7.2.8 failed to monitor, either appropriately, timeously, with
sufficient frequency and/or at all, Plaintiff’s labour and/or
failed to heed Plaintiff’s requests for urgent medical
assistance and/or ignored such requests;
7.2.9 failed to perform a proper and accurate partogram;
7.2.10 failed to summon, timeously or at all, for purposes of
assessment, advice and/or appropriate action, the assistance of a
specialist gynaecologist, alternatively, a suitably qualified medical
practitioner, further alternatively, any other medical practitioners
in circumstances where it was necessary and/or indicated to do so;
7.2.11 failed to perform or request to be performed, timeously or
at all, a Caesarean section on Plaintiff in circumstances where
it
was necessary and/or indicated to do so;
7.2.12 failed to advise Plaintiff, timeously or at all, that
prolonged labour and/or a failure to perform a Caesarean section
timeously,
could jeopardize the health of Plaintiff’s unborn
child;
7.2.13 failed to inform Plaintiff, timeously or at all, of any
and all circumstances which would and could prevent the nursing
staff and/or the attendant medical practitioner from rendering
reasonable medical, nursing and/or midwifery services with such
professional skill and diligence and could reasonably be expected of
medical practitioners, nursing staff and/or midwives;
7.2.14 failed to obtain a comprehensive and/or complete and/or
sufficient obstetric history from Plaintiff;
7.2.15 failed to provide and/or render the requisite reasonable
medical, surgical, nursing and midwifery services with such
professional
skill and diligence as could reasonably be expected of
medical practitioners, nurses and/or midwives in the particular
circumstances;
7.2.16 failed to ensure that the emergency Caesarean section was
performed without delay;
7.2.17 failed to prevent the delay in delivering L and the
consequences thereof when, by the exercise of reasonable skill, care
and diligence, such consequences could and should have been
prevented;
7.2.18 failed to provide and/or render adequate and/or appropriate
neo-natal resuscitation immediately after birth of L;
7.2.19 failed to prevent L from suffering an hypoxic-ischaemic
incident, causing him to sustain severe brain damage, as a result
of
which he is suffering from cerebral palsy, mental retardation, and
epilepsy when, by the exercise of reasonable skill, care
and
diligence, it could and should have been prevented.
8. As a result of the aforesaid breach of legal duty referred to
above, L:
8.1 suffered foetal distress and perinatal birth asphyxia, with
result brain damage, cerebral palsy, mental retardation and epilepsy;
8.2 experience pain, suffering and discomfort, and will continue
to experience pain, suffering and discomfort in future as a result
of:
8.2.1 cerebral palsy;
8.2.2 mental retardation;
8.2.3 epilepsy;
8.2.4 marked development delay and speech deficits;
8.2.5 behavioural problems;
8.3 underwent hospital, medical and related treatment, and will
undergo such treatment in future, the details of which are set out
hereunder;
8.4 required and will require various modalities of therapy,
special adaptive aids and devices, specialized schooling, permanent
and continuous care, the details of which are set out hereunder;
8.5 experiences a loss of amenities of life and will experience
such a loss in future, as would be experienced by a person of the
same age and status as L, who suffered the same complication as was
suffered by him, particularly the inability to function independently
and to enjoy the freedom of independent and unrestricted mobility,
and the permanent lack of meaningful privacy, social interaction
and
communication, parenthood, and living and growing old with a loved
one;
8.6 experienced a permanent and total disability and will
experience same in future;
8.7 will experience a loss of earnings, alternatively, earning
capacity, in future as a result of permanent and total inability to
generate any meaningful income;
8.8 will in future suffer psychological problems;
8.9 will require the services and protection afforded by a
Trustee, to protect any and all funds awarded for his future care and
treatment;
8.10 is permanently disfigured
as a result of the cerebral palsy.
”
[3] The defendant filed a special plea and pleaded to the above
allegations. In the light of the developments discussed later below,
it is unnecessary to deal with the contents of the pleas.
THE
ESSENCE OF PLAINTIFF’S CASE
[4] For the sake of brevity, the essence of the plaintiff’s
claim is based on alleged negligence on the part of the medical
and/or nursing staff based at the Mohlakeng clinic (“
the
clinic
”) and the Leratong Hospital (“
the
hospital
”) resulting in L sustaining brain injury during
the intrapartum period – the period from the start of labour
until
the birth of L – and as a result whereof L has developed
cerebral palsy.
SEPARATION
OF ISSUES
[5] At the pre-trial conference held by the parties on 4 December
2017, it was agreed to separate the issue of liability from the
determination of plaintiff’s claim of quantum of damages, and
that this trial should proceed only on the issue of liability.
At the commencement of the trial, I duly granted an order for the
separation of the issues in terms of the provisions of Uniform
Rule
33(4) of the Uniform Rules of Court. As a consequence, the
trial proceeded on the issue of liability only, whilst the
quantum of
damages was postponed
sine die
.
[6] In an endeavour to prove her case, the plaintiff testified
extensively on what occurred to her on the 17/5/2010. The plaintiff
also called as a witness, Dr Linda Ruth Murray, a senior obstetrician
and gynaecologist (‘Dr Murray”). However, prior
to
dealing with the evidence the of these two witnesses, I should record
the following: at the close of the plaintiff’s case,
the
defendant closed its case without presenting any oral evidence.
SOME
COMMON CAUSE FACTS
[7] It is common cause that the defendant has abandoned both its
special pleas and they will accordingly require no consideration
by
this Court. The plaintiff’s
locus standi
to
institute these proceedings on behalf of the L, is also not in
dispute and will no longer be considered. The defendant
has
also admitted that, at all relevant times hereto the clinic and the
hospital fell under the authority of alternatively, was
controlled by
further alternatively, was operated by the Department of Health of
the Gauteng Provincial Division. It is further
common cause
that the defendant, through its employees, had a legal duty to treat
the plaintiff and the unborn child with such
skill, care and
diligence as could reasonably be expected of medical practitioners
and nursing staff under similar circumstances
and, further, that the
staff at the clinic and hospital were acting within the cause and
scope of their employment with the defendant.
It is further
common cause between the parties that there are no antenatal or
labour-related medical records available in this
matter. There
are accordingly no medical records available pertaining to the
plaintiff’s pregnancy and to what transpired
during her labour
and the delivery of L. In fact, the first document that had
reference to the birth of L emanates from a
“
Progress Note
”
that was completed, at about 21h25 on 17 May 2010, some 35 minutes
after the birth of L. In the light of the non-availability
of
the relevant medical records, the plaintiff’s version of
events, as is shown later below, will be the only version of
what
transpired on 17 May 2010 that can serve as a factual premise on
which any findings in this matter can be made. As shown
later
also below, the parties, having considered the oral evidence of Dr
Murray, as well as the contents of the several joint minutes
which
have been placed before the court by agreement between the parties as
the evidence of the respective expert witnesses, are
in agreement
that: in the event that the plaintiff’s evidence is
accepted, the appropriate order would be that the
defendant is liable
for plaintiff’s agreed or proven damages in her representative
capacity; alternatively, in the
event that the plaintiff’s
evidence is rejected, the appropriate order would be that the
plaintiff’s claim be dismissed.
It also appears to me,
from the above agreement between the parties that the defendant
accepts, in the light of the evidence of
Dr Murray and the various
agreements reached between the expert witnesses, that the
intra-partum obstetric care that was rendered
to the plaintiff by the
defendant’s employees was substandard and that they therefore
were negligent, and that such negligence
was the cause of the brain
injury sustained by L, provided, of course, that the plaintiff’s
version of what occurred on the
day in question is acceptable to this
Court. I deal later hereunder with the agreements between the
various expert witnesses.
THE
PLAINTIFF’S EVIDENCE
[8] The plaintiff testified. In the circumstances of the case, it is
truly unnecessary to recall in greater detail all her evidence.
She
resided in Mohlakeng Township, Randfontein. She initially testified
in English but after the court intervened, she was assigned
an
interpreter. At the time of her evidence, the plaintiff was 29 years
old. Her highest school qualification is Grade 11, with
no other
training or further education. The pregnancy under discussion was her
first at about 21 years old. Prior to the incident,
the plaintiff
suspected that she was pregnant. This was later confirmed at the
Mohlakeng Clinic. Antenatal (before birth) care
was initiated and she
was issued with a green card in which the necessary entries were
recorded on each visit. The plaintiff complied
with all the clinic’s
requirements/instructions until she was about eight months pregnant.
At no stage was she informed by
the clinic’s nursing staff that
there was anything untoward with the progress of her pregnancy or any
concerns about the
health of her baby. As a result of the agreements
between the parties, there is only one remaining issue in dispute
between the
parties. This issue is a factual one and revolves around
the simple question as to whether or not the plaintiff’s
evidence
regarding the events that transpired on 17 May 2010 could be
accepted by this Court.
[9] In addition to the above, on or about 1 February 2010, the
plaintiff testified that she attended her last appointment with
a
private medical practitioner, Dr N Kazadi. The purpose of the
visit and the previous ones was to monitor the pregnancy
and to
determine the gender of the baby. Although the gender could not
be determined, Dr Kazadi assured the plaintiff that
the baby was
progressing well, and that her due date was in the vicinity of the
first week of May 2010.
[10] On 17 May 2010, at about 14h00 the plaintiff was at home.
She specifically mentioned that she recalled the time (14h00)
because
the school children were walking pass her home from school on a daily
basis at that time. The children attended a nearby
school. For
what is worth, this aspect of the time becomes relevant in the
judgment later. The plaintiff suspected
that her waters have
broken after she went to the toilet to urinate, and observed a
yellowish discharge. The plaintiff called her
mother who came and
saw. The mother confirmed the event. The plaintiff and her
mother proceeded to walk to the nearby Mohlakeng
clinic, a walk of
about 15/20 minutes. On the way there, they met the plaintiff’s
boyfriend.
AT THE
MOHLAKENG CLINIC
[11] The plaintiff testified that she arrived at the clinic at about
15h00. She was attended to by the nursing staff. She produced
her
green antenatal card and provided certain information on request. All
this was written down in what appeared to be a register.
[12] The plaintiff was given a gown to wear and to lie on a bed.
The attending midwife placed a black belt horizontally across
her
stomach. The belt was attached to a screen behind the plaintiff. The
belt was then removed and the midwife conducted an internal
examination. The plaintiff was told that her baby was still far
and plaintiff was told to go and wait in another room (apparently
a
waiting room) where her mother and boyfriend were. She
complied.
[13] The plaintiff said that at some stage during the wait she went
to the toilet where she also vomited. She called the midwife
who
played down her concerns, and said that it was normal to vomit, and
in any event, the baby was still far away. The plaintiff
continued to experience pain. Later that afternoon, whilst
lying on the bed, the plaintiff felt as if her baby was “
coming
out
”. She called the midwife again. The latter
came and repeated that the baby was still far, and that the plaintiff
should desist from making noise because she was scaring other people
in the clinic.
[14] The plaintiff testified that later, at about 18h30 she again
called for assistance from the nursing staff. The midwife
responded that the plaintiff was unnecessarily noisy, and that the
staff were watching television during a popular program called
Rhythm
City. The plaintiff said that she continued to be uncomfortable
with pain. At about 19h30, apparently when the Rhythm
City program
came to an end, the midwife came to the plaintiff and asked her to
lower her voice. The midwife put on a glove
and conducted a
vaginal examination. When the midwife pulled out her finger, the
glove came out with what the plaintiff described
as “
number
2
” on it. The midwife looked shocked. It was
the first time that the plaintiff observed “
number 2
”
that day. The midwife called her colleague, a midwife as well.
There was a discussion between the midwives. The plaintiff
was
informed that she could not have her baby delivered at the clinic as
they did not have the requisite “
equipment
”.
An ambulance was called urgently. The plaintiff was informed that she
should not push as it could result in losing
her baby. A drip
was put on the plaintiff. This assessment of the plaintiff was only
the second one that day after an initial
assessment earlier at the
clinic at about 15h00. There were no other assessments or
reviews or monitoring of the foetus between
her arrival at the
clinic, and the assessment shortly before she was transferred to the
hospital.
[15] She said that she did not wait long for the arrival of the
ambulance at the clinic. There, prior to her transfer, the
midwife completed certain forms which were handed to the ambulance
driver for the attention of the staff at the hospital.
The
ambulance arrived at the hospital after a journey lasting some 20 to
25 minutes.
AT THE
LERATONG HOSPITAL
[16] On arrival at the hospital, the plaintiff was taken directly to
the maternity ward. She was asked to go to the toilet first
to pass
urine as, according to her she was “
full
” with
water because of the drip she had on. She tried to urinate
without success. However, on her way back to
the ward, she
managed to urinate. She was laid on a bed and assisted by the
one midwife who held her hand behind the plaintiff’s
head, and
pushed forward. The midwife used a “
razor
”
to “
cut her vagina
”, and the baby was delivered at
about 20h50.
[17] The plaintiff testified that she was shown the baby after birth
to confirm his gender. The plaintiff observed that her
baby, L,
was green with “
number 2
”, and that he did not
cry. He was “
beaten
” twice on his buttocks
to make him cry without any success. The plaintiff overheard a
discussion between the midwives
with the news that L had died
whereupon a doctor was called for help. The doctor arrived
shortly thereafter and asked the
midwives why they said that L was
dead if there was still a heartbeat. The doctor physically ran
with L to the Intensive
Care Unit (“
ICU
”) where he
was put on oxygen.
[18] The plaintiff testified that she saw L on the morning of 18 May
2010. He was still in ICU, placed in a “
glass
”,
and on a drip, and was receiving oxygen. The plaintiff was told
that L had fitted overnight. She was unable
to breastfeed L at
the time. The plaintiff said that she was discharged from
hospital on 18 May 2010, while L remained in
the ICU for several days
until he was discharged after about 11 days. On his discharge,
the plaintiff testified that she
was informed by the doctor that L
was going to be “
different
” with no accompanying
explanation therefor. The plaintiff was also told that L’s
muscles would be stiff as a
result of which he had to be kept in some
light. The stiffness of the muscles, she was told, was because
L did not receive
sufficient oxygen to his brain upon birth.
The plaintiff’s parting shot in evidence-in-chief was that she
remembered
all the above events and details well because it happened
to her.
THE
CROSS-EXAMINATION OF PLAINTIFF
[19] The plaintiff was cross-examined closely. At the end of the
cross-examination, there truly emerged nothing eventful and of
significance tempering with the plaintiff’s core-version in
regard to the events of 17 May 2010. She essentially stuck
to
her core-version as to what happened to her at both the clinic and
later at the hospital.
[20] The plaintiff remained adamant that she was attended to by two
nursing staff at the clinic, and that there were no other pregnant
mothers who required their attention. The TV set from which the
nursing staff were watching the Rhythm City episode was situated
diagonally opposite the room in which the plaintiff was accommodated.
[21] In regard to what may be of relative relevance in the
determination of the issue in dispute, the plaintiff was confronted
with the contents of her affidavit in support of a condonation
application in terms of the provisions of section 3(2) of the
Institution
of Legal Proceedings against Certain Organs of State Act
40 of 2002 (“
the Institution of Legal Proceedings Act
”).
In that affidavit, the plaintiff, in particular paragraphs 21, 22,
23, 24, 25 and 26 omitted to specify exact times
of the various
incidents described by her at the clinic and at the hospital on 17
May 2010. This, as opposed to specific
times she recalled in
her oral evidence. The plaintiff agreed with the omissions
alleged. In the end, it was put to the plaintiff,
in my view not with
any overt conviction, that she was fabricating her evidence in regard
to the times. The plaintiff denied
this proposition. The
plaintiff testified that in regard to the reason for her transfer to
the hospital, no specific “
equipment or equipments
”
were mentioned to her.
THE
EVIDENCE OF DR MURRAY
[22] As mentioned above, Dr Murray testified as a witness for the
plaintiff. She was sitting in court throughout the testimony
of
the plaintiff. In the light of the agreements reached, and in
particular the contents of the various joint minutes of
the experts,
it is again truly unnecessary to traverse in detail the evidence of
Dr Murray. The observation that, not only
did she explain in
medical terms the evidence of the plaintiff, but also corroborated in
large measure the version of the plaintiff,
is well-grounded.
Dr Murray compiled a joint minute with her counterpart, Dr P C Koll
(“
Dr Koll
”). It is preferable to first deal
with the contents of all the joint minutes, prior to engaging in a
full assessment
of the plaintiff’s evidence.
THE
VARIOUS JOINT MINUTES
[23] The plaintiff’s radiologists, Prof J Lotz (“
Prof
Lotz
”) and counterpart, Dr T Westgarth-Taylor (“
Dr
Westgarth-Taylor
”) compiled a joint minute. In it the
radiologists agreed, amongst others, that the injury is
hypoxic-ischemic (brain damage
in a new born infant as a result of
inadequate oxygen supply) in nature, and that it shows a pattern of
acute and profound (central)
hypoxic-ischemic injury; that the
findings of the Magnetic Resonance Imaging (“
MRI
”)
study suggest that genetic disorders as a cause of L’s brain
damage is unlikely; and that the MRI findings suggest
that
inflammatory or infective causes are unlikely as causes of L’s
brain damage.
[24]
The neonatologist-paediatricians, Drs D Pearce for the plaintiff and
V R Mogashoa, for the defendant, respectively, in an attempt
to
assist the court in respect of causation and/or origin of and the
timing of L’s diagnosis and neurological disability,
agreed
that: L suffers from a mixed cerebral palsy (predominantly
dystonic) and gross motor functional classification scale
V,
indicative of physical impairments severely restricting movement,
that L is capable of very limited independent mobility, and
his
core-morbidities include severe intellectual disability, lower limb
contractures, kyphosis, and severe global development delay;
and that
the MIR, performed on 10 February 2014 reveals, diagnostic features
of an acute profound hypoxic-ischemic injury, and
that there are no
MIR features to suggest intracranial, congenital infections,
congenital anomalies, metabolic disorders, inflammatory
conditions or
haemorrhage. They further agreed that, the timing of the insult is
most likely intra-partum
(occurring during labour or child birth) (emphasis added), and that
having regard to the ACOG2014, and based on available records,
intra-partum hypoxia (loosely translated: a deficiency of
oxygen in the tissues during birth),
is the most probable
cause of the neonatal encephalopathy
(any of the various diseases that affect the functioning of the
brain) (emphasis added) in L. Significantly, these experts
agreed that it is important that records of labour are kept/found in
order to understand what event led to the acute/profound insult
in a
new born baby. The experts also agreed that on the available history
and records,
an antenatal insult can be excluded, as far as
possible
(emphasis added).
[25] There was no significant agreement between the respective
obstetricians, Drs Murray and Koll. The latter express the view
that
he prefers to base his expert opinion on recorded facts. He also
expressed in his own medico-legal report that he is unable
to assist
the court in the present matter. This attitude quite correctly
too, emphasises the need for health institutions
such as the clinic
and the hospital in this matter to compile, keep and store safely
patients’ medical records, until claims
of this nature have
been finalised. In the light hereof, I prefer to deal with Dr
Murray’s expert and uncontroverted
opinions in the evaluation
of the plaintiff’s evidence and the applicable legal
principles.
SOME
APPLICABLE LEGAL PRINCIPLES
[26] First, some applicable legal principles. The plaintiff was the
only witness in regard to what occurred to her on 17 May 2010,
as
well as her interaction with the nursing staff. On the other
hand, the defendant tendered no oral evidence at all.
Section
16 of the Civil Proceedings Evidence Act 25 of 1965 (“
the
CPEA
”), which came into operation on 2 May 2005, provides
as follows:
“
Judgment may be given in any civil proceedings on the
evidence of any single competent and credible witness.
”
[27] In regard to criminal proceedings, the equivalent of section 16
of the CPEA is section 208 of the Criminal Procedure Act 51
of 1977
(“
the CPA
”). For example, in
S v Sauls
1981 (3) SA 172
(A) at 180, it was said that there is no
rule-of-thumb test or formula to apply when it comes to the
consideration of the credibility
of a single witness. The trial court
should weigh the evidence of the single witness and should consider
its merits and demerits
and having done so, should decide whether it
is satisfied that the truth has been told despite shortcomings or
defects or contradictions
in the evidence. See also
S v
Webber
1971 (3) SA 754
(A); and
S v Jackson
1998 (1) SACR
470
(SCA) at 476 to 477, where the application of the traditional
cautionary rule in criminal trials was somewhat watered down.
Although the
onus
of proof in criminal proceedings is
completely different from that in civil proceedings, such as in the
instant matter, the principles
there in regard to the evidence of a
single witness in civil proceedings, are arguably still good law.
[28] In the present matter, plaintiff’s counsel relied
extensively on
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) for
the submission that findings of credibility should not be adjudicated
in isolation but required to be considered in the
light of proven
facts and the probabilities of the matter under discussion. In
that judgment, the Supreme Court of Appeal
at paragraph [5] said:
“
Whilst a Court of appeal is generally reluctant to disturb
findings which depend on credibility it is trite that it will do so
where
such findings are plainly wrong (R v Dhlumayo and Another
1948
(2) SA 677
(A) at 706). This is especially so where the reasons
given for the finding are seriously flawed … It is
equally
true that findings of credibility cannot be judged in
isolation, but require to be considered in the light of proven facts
and
probabilities of the matter under discussion.
”
See also paragraph [10] of the same judgment for the proposition that
a single witness ought not be satisfactorily in all material
respects, and that the proper test is not whether a witness is
truthful or indeed reliable in all that he/she says, but whether
on a
balance of probabilities the essential features of the story which
he/she tells are true. See also
Bruk v Williams
[1997]
JOL 1684
(C) at pages 31 and 32.
[29] In regard specifically to the
onus
of proof in civil
proceedings, our law is also well-settled by now. No undue
repetition is necessary. In short, he/she
who alleges/asserts,
as in this case, must prove. Some seventy-two years ago, and in
Pillay v Krishna and Another
1946 (A) 946, the Court said,
inter alia
, that:
“
Commenting on this passage Solomon CJ, said in Spain’s
case, at p 79: … In this statement of the law by Kotze
JP, the Natal Provincial Division in its judgment in this case
concurred, and I think we should also accept it, except in so far
as
it refers to the onus being placed on the defendant. For the
onus to prove his case always lies on the plaintiff:
if, in the
circumstances stated by Kotze JP, no evidence is given by the
defendant, provisional sentence will be granted:
on the other
hand, if evidence is called by the defendant, it will be for the
Court to determine whether, in the circumstances,
a sufficiently
clear case has been made out by the plaintiff to justify the granting
of provisional sentence.
”
See also
Webster v Mitchell
1948 (1) SA 1186?
(W) in regard to
the incidence of a
prima facie
case and the balance of
probabilities in the case of temporary interdicts. In the
instant matter, unlike than in the
Pillay v Krishna and Another
case,
supra
, it is common cause that the defendant proffered
no oral evidence, and therefore there are no opposing versions.
This makes
the approach or technique in resolving two mutually
irreconcilable contended for by the plaintiff in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et Cie and
Others
2003 (1) SA 11
(SCA) at paragraph [5], not strictly
applicable, although the principles therein enunciated remain
instructive.
EVALUATION
OF THE PLAINTIFF’S EVIDENCE
[30] In the instant matter, the only criticism levelled against the
evidence of the plaintiff, in both cross-examination, and in
the
defendant’s heads of argument, and indeed, worthy of
consideration, was the following: whilst in evidence-in-chief,
the plaintiff provided full details of the exact or approximate times
of the incidents of the fateful day i.e. 17 May 2010, she
however,
did not do so in the previous affidavit in support of condonation as
mentioned above. In this regard, the plaintiff,
in
cross-examination, was confronted with the contents of the said
affidavit which she deposed to in December 2007 in support of
the
condonation mentioned under the Institution of Legal Proceedings Act.
[31] In that condonation affidavit, the plaintiff did not specify
times of the occurrences on 17 May 2010, as opposed to the detailed
times in her oral evidence. It is my considered view that the
criticism levelled against the plaintiff in this regard and in other
respects, was not justified at all in the circumstances of this
matter, for a number of reasons. For starters, and if I may
borrow again from the guidelines in criminal proceedings, not all
contradictions affect a witness’s credibility. In
S v
Mkohle
1990 (1) SACR 95
(A) at 98e-g, Nestadt JA said:
“
Contradictions per se do not lead to the rejection of a
witness’s evidence. As Nicholas J, as he then was,
observed
in S v Oosthuizen
1982 (3) SA 571
(T) at 576B-C, they may
simply be indicative of an error. And (at 576G-H) it is stated
that not every error made by a witness
affects his credibility; in
each case the trier of fact has to make an evaluation; taking
into account such matters as the
nature of the contradictions, their
number and importance, and their bearing on other parts of the
witness’s evidence.
”
In applying these principles to the facts of the instant matter, it
is clear that there were no material and/or internal contradictions
in her evidence. Secondly, the purposes and processes in
condonation applications, especially under the Institution of Legal
Proceedings Act, are different from those in a civil trial. Thirdly,
there was nothing inherently improbable about the plaintiff’s
version as a whole. The plaintiff, a layperson in both medicine
and the law, and clearly unsophisticated, tried as best as
she could
to relate what happened to her even at the risk of breaking down
emotionally in the witness stand. Other than suggesting
that
the plaintiff was fabricating her evidence, there was no other
specific version put to her in cross-examination to show the
contrary. In
President of the RSA v South African Rugby
Football Union
2000 (1) SA 1
(CC) at paragraph [61] the Court
said:
“
The institution of cross-examination not only constitutes a
right, it also imposes certain obligations. As a general rule it is
essential, when it is intended to suggest that a witness is not
speaking the truth on a particular point, to direct the witness’s
attention to the fact by questions put in cross-examination showing
that the imputation is intended to be made and to afford the
witness
an opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character
…
”
Lastly, on this aspect, the plaintiff’s version of what
occurred on 17 May 2010, was not countered by any other evidence,
and
stood as the only version. The alleged contradiction or
contradictions do not affect the core version of the plaintiff.
[32] In rendering her version, the plaintiff impressed as a truthful,
credible and reliable witness throughout. It was her first
pregnancy
at the age of about 21. She merely became a victim of unexpected
circumstances over which she had no control at all.
[33] In addition to the above, the plaintiff’s version was
corroborated extensively by the expert opinion of Dr Murray over
and
above the contents of Dr Murray’s joint minute with her
counterpart, Dr Koll. Such portions of Dr Murray’s
evidence also remained unchallenged.
THE
CORROBORATION OF PLAINTIFF’S EVIDENCE
[34] A few examples only of the corroboration will suffice. The
plaintiff’s evidence in regard to the issuing to her
of the
green antenatal card, as well as its purpose, by the clinic, was
objectively confirmed by the evidence of Dr Murray; the
evidence of
the plaintiff about her visits to a private medical practitioner, Dr
Kazadi, was confirmed by the print-out of the
ultra-sound sonar.
That was prior to 17 May 2010; the plaintiff’s evidence that a
midwife placed a black belt horizontally
across her stomach which was
attached to a screen, was confirmed by the evidence of Dr Murray, and
that this is a reference to
a CTG-machine that is to monitor the
foetal heart-rate; the plaintiff’s evidence regarding the
presence of “
number 2
” on examination at the
clinic, following a vaginal examination, was confirmed by the
evidence of Dr Murray that this refers
to the presence of meconium
(the first stools of a new born baby); the plaintiff’s evidence
that the midwife appeared “
shocked
” when she
observed the meconium, was confirmed by Dr Murray to the effect that
thick meconium is associated with the foetal
distress; the evidence
of the plaintiff that the second assessment occurred about 19h00 (17
May 2010), was confirmed objectively
by the fact that this
assessment, resulting in the urgent summonsing of the ambulance, as
well as the unchallenged evidence that
the travel distance between
the clinic, and the hospital, was about a 20 to 25 minutes’
drive, occurred prior to her documented
arrival time at the hospital
at 19h45, the evidence of the plaintiff that she was asked on arrival
at the hospital to first visit
the toilet to urinate because she was
“
full
” with water, was confirmed objectively by
the evidence of Dr Murray that such is standard practice where a
patient was on
a drip since the baby cannot be delivered if the
mother’s bladder is full; the plaintiff evidence that a “
razor
”
was used to “
cut her vagina
” was confirmed by Dr
Murray who testified that there is indeed such a medical procedure,
namely an episiotomy (a surgical
cut made at the opening of the
vagina during child birth); the plaintiff’s evidence that
her baby, Luynda, was “
green with number 2
”, when
he was shown to her, and that he was not crying after birth, was
again confirmed by the entries recorded in a “
Progress
Note
”, at 21h45 on 17 May 2010.
[35] In my view there are other features of the plaintiff’s
uncontroverted evidence which show aggravating and humiliating
conduct on the part of the nursing staff, at both the clinic and
later at the hospital. I refer here to the evidence that
the
nursing staff when asked for assistance, repeatedly told the
plaintiff that “
the baby was far
”; that the
plaintiff should desist from making noise; and that the nursing staff
were engaged in watching a television episode,
“
Rhythm
City
”, instead of carefully monitoring the pregnancy. The
high-water mark of the unacceptable and unprofessional conduct came
when the nursing staff at the clinic, suddenly and after extended
visit by the plaintiff, told her that she should not have her
baby
delivered there due to the lack of unexplained equipment. The
trauma for the plaintiff did not end there. At the
hospital,
and following a discussion between the midwives, and after delivery
of the baby through the vagina, the plaintiff was
told that her baby
had died, when this was not the case. Indeed, Dr Murray
testified regarding the “
perinatal death data sheet
”,
that the sheet is completed only in the event of foetal or neonatal
death, and that someone commenced to fill in the sheet,
but did not
complete it, almost as if the author initially presumed that the baby
had died. To make it worse for the plaintiff,
upon the
discharge of her baby, L, she was told that L was going to be
“
different
”, and that the cause thereof was that L
did not receive sufficient oxygen to the brain when he was born.
The latter
fact was confirmed objectively by the expert evidence
regarding the mechanism of the baby’s injury, namely an
hypoxic-ischemic
brain injury. Indeed, there are numerous instances
where the evidence of the plaintiff was corroborated fully by the
evidence of
Dr Murray. It is concerning to me that the
diagnosis, treatment, assessment and monitoring the progress of the
plaintiff’s
pregnancy until delivery, was substandard, and
plainly in violation of her constitutional rights, notably, the right
to dignity
(section 10 of the Constitution), and the right to health
care (section 27 of the Constitution) etc.
THE
ABSENCE OF HOSPITAL RECORDS
[36] Prior to concluding on the disputed issue namely, whether the
evidence of the plaintiff was acceptable and satisfactory to
establish any negligence on the part of the medical staff of the
defendant, I must first deal with one other issue forming the
series
of undesirable conduct on the part of the defendant’s staff
members. That is the absence of the relevant and
applicable
medical/hospital records of the plaintiff’s pregnancy and the
later delivery of her baby, L, at both the institutions
involved
here.
[37] It can hardly be in dispute that such records are crucial and
completely indispensable in the adjudication of cases such as
the
instant one. This deficiency of necessity results in certain
consequences. I can put it no higher. In this regard,
certain
provisions of the National Health Act 51 of 2003 (“
the
Health Act
”) are rather instructive. To start with,
the purpose of the Health Act provides,
inter alia
, that it
is:
“
To provide a framework for a structured uniform health
system within the Republic, taking into account the obligations
imposed by
the Constitution and other laws on the national,
provincial and local governments with regard to health services …
”
The preamble provides amongst others, that:
“
The State must, in compliance with section 7(2) of the
Constitution, respect, protect, promote and fulfil the rights
enshrined in
the Bill of Rights, which is a cornerstone of democracy
in South Africa; in terms of section 27(2) of the Constitution
the
State must take reasonable legislative and other measures within
its available resources to achieve the progressive realisation
of the
right of the people of South Africa to have access to health care
services, including reproductive health care; section
27(3) of
the Constitution provides that no one may be refused emergency
medical treatment; in terms of section 28(1)(c) of the
Constitution,
every child has the right to basic health care services; and, in
terms of section 24(a) of the Constitution, everyone
has the right to
an environment that is not harmful to their health or well-being.
”
[38] More pertinent to the instant matter, are the provisions of
sections 13 and 17(1) of the Health Act. The former provides
that:
“
Subject to National Archives of South Africa Act 1996 (Act
43 of 1996), and the Promotion of Access to Information Act (2 of
2000),
the person in charge of a health establishment must ensure
that the health record containing such information as may be
prescribed
is created and maintained at that health establish for
every user of health services.
”
On
the other hand, section 17(1) of the Health Act provides that 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 the storage facility in
which, or system by which,
records are kept
(emphasis added).
[39] There can be no doubt that, when regard is had to section 1 of
the Health Act, namely the definitions clause, that:
the
Mohlakeng Clinic and the Leratong Hospital fall within the purview of
health establishments; that they render health services;
and that the
plaintiff in this case was a user of the health services at the
relevant time.
[40] From the above provisions, it is more than plain that: the
defendant and its employees at both the clinic and the hospital
(doctors, midwives, nurses, registrars and interns) not only had the
duty to ensure that the plaintiff received proper medical
treatment,
but also thereafter to create, maintain, keep and store her medical
records. The records are crucial documents, and
the absence thereof
invariably make the adjudication of ensuing litigation extremely
difficult, as occurred in this matter. The
defendant and its
employees had both a constitutional and statutory obligation to, and
must have made and kept meticulous clinical
and hospital notes and
records relating to the plaintiff’s treatment. The
applicable provisions of the Health Act are
peremptory. In
addition, the above provisions also make it clear that not only must
medical records be kept, but also that
adequate controls of access
thereto must be put in place. It is equally apparent that the
Legislature has taken a very serious
view of the failure to keep
patients’ medical records, as well as on the disappearance,
falsification or tempering with such
records. See in this regard
Khoza v MEC for Health and Social Development, Gauteng
[2015]
2 All SA 598
(GSJ) at paragraph [35], and
Ntsele v MEC for Health,
Gauteng Provincial Government
[2013] 2 All SA 356
(GSJ).
[41] In regard to medical doctors specifically, they require
registration with the Health Professions Council of South Africa
(“
HPCSA
”), which was established by the Health
Professions Act 56 of 1974, as amended. It is interesting that
medical practitioners
are obliged to keep patients’ medical
records in terms of the Health Professions Council’s Ethical
Professional Guidelines.
Clause 9 of the Guidelines (updated up to
September 2016), provides,
inter alia
, that:
“
Health records should be stored in a safe place and if they
are in electronic format, safeguarded by passwords.
Practitioners
should satisfy themselves that they understand the
HPSA’s guidelines with regard to the retention of patient
records on computer
compact discs. Health records should be
stored for a period of not less than six (6) years as from the date
they became dormant.
In the case of minors and those patients
who are mentally incompetent, health care practitioners should keep
the records for a
longer period. For minors under the age of 18
years health records should be kept until the minor’s 21
st
birthday because legally minors have up to three years after they
reach the age of 18 years to bring a claim. This would
apply
equally for obstetric records … Notwithstanding the
provisions … above, the health records kept in a
provincial
hospital or clinic shall only be destroyed if such destruction is
authorised by the Deputy Director-General concerned
…
”
[42] The above Guidelines of the HPCSA for medical practitioners are
equally instructive for purposes of the instant matter.
The
Guidelines apply additionally to the medical doctor who treated the
plaintiff and the plaintiff’s baby at the Leratong
Hospital on
17 May 2010. The guidelines also emphasise the importance and
crucial nature of patients’ records, in particular
in the case
of minor children, such as occurred in the present matter. In
the case of the midwives and nursing staff who
attended to the
plaintiff, their conduct would additionally be subject to the Guide
for Maternity Care in South Africa, and the
Rules of the South
African Nursing Council issued under the Nursing Act 50 of 1978.
(See in this regard
N N and Member of the Executive Council for
Health, Eastern Cape
(unreported case no 2571/2013).)
Indeed, several of the expert witnesses involved in this matter have
expressed utter frustration
of not having available the hospital
records, and therefore not being able to assist the court. In
my view, the frustration
was well-grounded, particularly where no
acceptable and plausible explanation was advanced for the absence of
such records.
CONCLUSION
[43] I must conclude on the issue for determination before me. In
paragraph nine (9) of the plaintiff’s written heads of
argument, it is submitted that:
“
The court is not called upon to make any findings in
respect of negligence and causation.
” (
cf defendant’s
heads of argument)
Having reviewed the entire matter now, I do not agree entirely.
I need to say more, which I do immediately hereunder.
[44] I have already dealt with, and evaluated the evidence of the
plaintiff. I accepted her evidence, which was corroborated
sufficiently, as satisfactory in all material respects. It was
uncontroverted. The evidence, without the necessity of drawing any
adverse inferences against the defendant, or even applying the
maxim
res ipsa loquitor
, established a rather strong
prima facie
case of negligence on the part of the employees of the defendant at
both the clinic and at the hospital, for a number of reasons.
See in this regard
Goliath v MEC for Health, Eastern Cape
2011
(2) SA 97
(SCA) [10]. The evidence of the plaintiff as assessed
in totality, and objectively, also proved that the negligence caused
the insult and injury which occurred to the plaintiff’s baby on
17 May 2010.
[45] The classical case in which the test for negligence for
liability was articulated, as pointed out in the defendant’s
heads of argument, is
Kruger v Coetzee
1966 (2) SA 428
(A). At
page 430E, the Court in that case said:
“
For the purposes of liability culpa arises if –
(a)
a diligence
paterfamilias in the position of the defendant –
(i)
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss;
and
(ii)
would take
reasonable steps to guard against such occurrence; and
(b)
the defendant
failed to take such steps.
”
There is also no doubt that the plaintiff bears the
onus
to
prove negligence on a balance of probabilities, as was enunciated in,
inter alia
,
Monteoli v Woolworths (Pty) Ltd
2000 (4) SA
735
(W) at paragraphs [25] to [29], where it was said,
inter alia
,
that the
onus
of proving negligence on a balance of
probabilities rests with the plaintiff, that sometimes, however, a
plaintiff is not in a
position to produce evidence on a particular
aspect, that less evidence will suffice to establish a
prima facie
case where the matter is peculiarly in the knowledge of the
defendant, and that in such situations, the law places an evidentiary
burden upon the defendant to show what steps were taken to comply
with the standards to be expected, and finally, that the
onus
nevertheless remains with the plaintiff. See also
Minister
of Safety and Security v Mhofe
[2007] 4 All SA 697
(SCA) at
paragraph [9].
[46] In regard to causation, in
Minister of Safety and Security
and Another v Carmichele
2004 (3) SA (SCA), the Court at
paragraph [55] said:
“
Causation has two elements. The first is that the factual
issue which has to be established on a balance of probabilities by a
plaintiff
… and the answer has to be sought by using the
‘but-for-test’ …:
‘
In
order to apply this test one must make a hypothetical enquiry as to
what probably would have happened but for the wrongful conduct
of the
defendant. This enquiry may involve the mental elimination of
the wrongful conduct and the substitution of a hypothetical
course of
lawful and posing of the question as to whether upon such an
hypothesis plaintiff’s loss would have ensued or not.
If
it would in any event have ensued, the wrongful conduct was not a
cause of the plaintiff’s loss; aliter, if it would not
so have
ensued.’
”
See also paragraph [72] of the same judgment, and
Sonny and
Another v Premier, Province of KwaZulu-Natal and Another
[2010] 1
All SA 169
(KZP).
[47] I have already found earlier in the judgment that the plaintiff
has succeeded, on a balance of probabilities, to prove negligence
on
the part of the defendant’s employees. To emphasise, the
negligence is based on,
inter alia
, the fact that: the
plaintiff’s pregnancy was plainly not adequately assessed,
monitored and treated timeously at both
the clinic and the hospital;
the plaintiff suffered hours of labour in circumstances where a
caesarean section delivery was indicated;
the nursing sisters at both
the clinic and the hospital rendered medical care, midwifery
treatment and monitoring to the plaintiff
and the foetus in respect
of her labour and delivery of her baby, L, in a negligent, and
non-caring manner, and in breach of their
duty of care owed to the
plaintiff. The negligence described, was causatively related to
the birth of the child, L, by vagina,
which resulted in the injury,
as set out in the particulars of claim. The defendant must be
held liable for the plaintiff’s
proven or agreed damages.
COSTS
[48] I deal briefly with the issue of costs, which is a discretionary
matter. The costs should follow the result. No credible
reason
has been advanced why this should not be the case. In fact, whilst
preparing the judgment, I developed a rather strong inclination
to
award costs on a punitive scale. This, largely due to the
manner in which the defendant’s case was presented, and
the
humiliation and pain and shock which must have been inflicted on the
plaintiff, particularly when she was informed that her
baby had died,
when it was not so. She was also told in unspecified terms that
her baby, L, would be “
different
”. I have,
however, decided against my costs inclination.
ORDER
[49] In the result the following order is made:
1. The defendant shall pay 100% (one hundred percent) of the
plaintiff’s agreed or proven damages in her representative
capacity for and on behalf of her minor child, L M (“
L
”),
which damages flow from the neurological injury sustained by L during
labour and delivery at the Mohlakeng Clinic and
Leratong Hospital on
or about 17 May 2010 and the resultant cerebral palsy (and is
sequelae
) which he suffers from.
2. The defendant shall pay the plaintiff’s taxed or agreed
party and party costs of suit on the High Court scale, such costs
to
include (but not necessarily be limited to) the following:
2.1 the costs attendant upon the obtaining of the medico-legal
reports and/or addendum reports and/or joint minutes, if any, of
the
following expert witnesses:
2.1.1 Professor Smith (Neonatologist);
2.1.2 Dr Murray-Vollmer (Obstetrician and Gynaecologist);
2.1.3 Professor Lotz (Radiologist);
2.1.4 Dr Pearce (Paediatric Neurologist); and
2.1.5 Burger Radiologists (MRI scan on 10 February 2014).
2.2 the qualifying and appearance fees and preparation costs in
respect of Dr Murray;
2.3 the reasonable and necessary air transport and accommodation
costs and expenses in respect of Dr Murray; and
2.4 the reasonable fees of counsel in respect of the preparation of
heads of argument.
3. The defendant shall pay interest on the plaintiff’s taxed or
agreed costs of suit at the prescribed statutory rate calculated
from
31 (thirty one) days after agreement in respect thereof, or from the
date of affixing of the taxing master’s allocatur,
to date of
payment.
________________________________________
D S S MOSHIDI
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF
ADV M COETZER
INSTRUCTED BY
WIM KRYNAUW ATTORNEYS
COUNSEL FOR THE DEFENDANT ADV N
MAKOPO
ASSISTED BY
ADV T MOSENYEHI
INSTRUCTED BY
THE STATE ATTORNEY
DATE OF HEARING
8 FEBRUARY 2018
DATE OF JUDGMENT
20 April 2018