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[2020] ZAGPJHC 12
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E G obo S G v Member of the Executive Council for Health, Gauteng Provincial Government (13524/2018) [2020] ZAGPJHC 12 (28 January 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13524/2018
In
the matter between:
E
G obo S
G PLAINTIFF
AND
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, GAUTENG PROVINCIAL
GOVERNMENT DEFENDANT
JUDGMENT
TWALA
J
[1]
The plaintiff sued the defendant out of this Court in her capacity as
mother and natural guardian of her minor son, S G (“S”)
for damages arising out of the negligence of the hospital and its
staff during the birth of S on the 8
th
of August 2014 at the Yusuf Dadoo Hospital (“the hospital”).
[2]
At the commencement of the hearing the defendant brought an
application in terms of Rule 33(4) of the Rules of Court for the
separation of the merits of the matter from its quantum. It argued
that it did not have sufficient time to prepare for the issue
of
quantum which the plaintiff claims to be R29 million and that it was
not possible to determine same at the allocated time of
the trial.
[3]
The application was vehemently opposed by the plaintiff on the basis
that the defendant has had ample time to prepare for the
trial of the
matter and that the separation of the issues will result in the delay
in the finalisation of the matter. This, so
was it argued, will
prejudice the plaintiff since S requires urgent medical attention as
a result of the injuries he sustained.
[4]
It is not unreasonable for the defendant to seek a separation of the
issues in cases of this nature for it involves a substantial
amount
of money. The defendant is dependent on the public purse and it
should at all times exercise proper caution and care when
it is
confronted with claims of this nature. It is my respectful view
therefore that there is nothing untoward in the defendant
applying
for separation of the issues in this case. There is no prejudice that
would be saddled with the plaintiff should the separation
be ordered.
Further, there is no merit in the argument that S requires urgent
medical attention for he is currently receiving same
at the
institutions run by the defendant. I therefore granted the
order that the merits be dealt with and that quantum be
postponed for
determination to a later date.
[5]
Further, the defendant brought an application to withdraw the joint
minute of Dr Cooper and Dr Kara since it was no longer going
to call
Dr Cooper as an expert witness. Although the plaintiff opposed the
application, I granted the application since the defendant
duly gave
its notice so to withdraw the joint minute before the commencement of
the proceedings.
[6]
It is on record that S was referred to a myriad of medical experts
who compiled a number of medical legal reports and settled
joint
minutes amongst themselves. Further, the experts agree in their
testimony that the plaintiff received substandard care when
she was
admitted at the hospital during the course of her labour. The
parties agreed that the joint minute of the radiologist
be admitted
in evidence. What remains contentious between the parties is whether
such substandard care is the direct cause of S’s
brain injury.
Put differently, the bone of contention is whether the substandard
care received by the plaintiff at the hospital
on the 7
th
and 8
th
August 2014 is the causal link to the injury sustained by S and the
damages he suffered as a result.
[7]
It is to be noted that because of time constrains the plaintiff was
not the first to testify in her case but some of the expert
witnesses. However, to bring matters into the proper context, I
propose to start with the evidence of the plaintiff and thereafter
proceed with that of the other witnesses.
[8]
Ms E G (“Ms G”) who is 26 years of age, testified that
she last received her periods on the 7
th
of November 2013 and she undertook a pregnancy test on the 2
nd
of December 2013 which tested positive. She did not immediately
attend the clinic for she was afraid, what would be the reaction
of
her parents. She attended the Itsoseng Clinic for the first time on
the 18
th
of March 2014 when it was confirmed that she was 16 weeks pregnant.
She was assessed by the nursing staff at the clinic and found
to be
healthy with no complications or sickness at the time and was given
some vitamin tablets for pregnant women and a return
date which was
in April 2014. She continued to attend the clinic on a monthly basis
in compliance with the dates given to her and
at all times the nurses
examined and assessed her and advised her that everything was fine
with her pregnancy. She was never given
any medication at the clinic
during the period March 2014 to July 2014 except for the vitamin
tablets normally given to pregnant
women.
[9]
On the morning of the 7
th
August 2014 she woke up feeling pains on her lower abdomen. She asked
her neighbour about these intermittent pains and was advised
that she
should attend to hospital for she might be experiencing labour pains.
She arrived at the hospital around 10H00 and was
directed to the
maternity section. She came across a steel or burglar gate where she
found a cleaner who instructed her to sit
outside just in front of
the gate as the cleaner was on the other side of the burglar gate.
She could not sit still as she was
struggling with pain but kept on
moving up and down trying to alleviate the pain. After some time had
passed, a nursing sister
came and ushered or called her and the other
two (2) pregnant ladies through the burglar gate. It was around 16H00
when they were
called into a room where they sat until another
nursing sister came and asked what was wrong with her. The nursing
sister looked
at her clinic card and told her that she was not due to
deliver the baby yet and must go home. She refused to go home since
she
was experiencing excruciating pains at the time. Another nursing
sister came in and started to massage her stomach and instructed
her
to breathe in and out and promised to call someone who will assist
her. The time was now around 17H00 since supper was being
served.
[10]
Another nursing sister came in and told her to take off her clothes
and lay on the bed where after she placed a belt on her
stomach which
printed some strip of paper after it failed the first time. Nothing
was done on her thereafter as she was instructed
to sit on a chair
after the belt was removed. She could not remember if her blood
pressure was taken then but the sister did not
insert her fingers in
her vagina nor did she take her urine sample at the time. She
continued to move around to alleviate the pain
in her lower abdomen.
It was after 22H00 when she was taken to a room where she was put on
a bed and the nursing sister assessed
her by inserting her (the
sister) fingers into her vagina. The sister then said to another that
someone is going to give birth
tonight. As the pains continued,
she kept on moving up and down and when she felt bilious, she went to
the bathroom. On her
way to the bathroom, her water broke –
thus she screamed for help and a sister came and took her to the
delivery room where
a bed was prepared and the sister assisted by
pressing her stomach whilst she was pushing. The nursing sister then
put a silver
dish/basin between her legs and left the room.
[11]
She kept on pushing as she was directed by the nursing sister until
the baby fell out and hit the silver dish/basin which in
turn hit the
bed and made a noise. This attracted the attention of the sister who
then came in and cut the umbilical cord and took
the baby. The sister
came back to clean her and thereafter took her to where the baby was
in an incubator. She was instructed to
sleep in the room where she
delivered the baby and that in the morning she should go and breast
feed the baby. On the morning of
the 8
th
August 2014 she met a doctor as she went to breast feed the baby and
the doctor told her that the baby was brain damaged for he
did not
get enough oxygen.
[12]
She testified further that she has never taken drugs nor smoked or
drank intoxicating liquor in her life. She kept a healthy
lifestyle
and ate properly during the pregnancy. She rested and slept enough
and did not take any medication for any illness during
the pregnancy
nor was she given any medication in the labour ward on her admission
on the 7
th
of August 2014. She and the baby were kept in hospital until the baby
was discharged at the end of August 2014.
[13]
She testified under cross examination that she attended all her
check-up dates at the clinic. She reiterated that it was about
17H00
when a belt was put on her stomach. It was the only time a belt
was put on her stomach and fingers were also inserted
once in her
vagina at about 22H00. She denied having been assessed by a doctor
and not a male doctor for that matter. She denied
having been given
medication at the hospital nor was she told that she was being
treated for hypertension. She insisted that her
water broke when she
was on her way to the bathroom and that nobody assisted her at the
time. It is a female doctor who told her
the baby is brain damaged
and that it did not get enough oxygen. She denied that anybody raised
issues about her being underweight
during the pregnancy nor that the
baby was not growing well. She did not know her weight before she
fell pregnant. She was never
told that the baby was wasted nor that
the baby’s skin was peeling. It was her first baby and it
looked fine to her at birth.
The baby is currently attending clinic
and receives medication and therapy from a nearby hospital. However,
the baby consults privately
for the medication which is not available
at the clinic and the hospitals that are in rural areas.
[14]
Sister Lesley Fletcher who retired in 2018 testified that she has
been a nurse and especially as a mid-wife working in the
maternity
ward for 40 years. She has been teaching nursing care in the
maternity ward in Leratong Hospital and later joined the
private
health care centre. She wrote policies and procedures for the
maternity unit and has recently submitted a dissertation
to the
University of the Witwatersrand on “
The Quality of Nursing
Care in the Maternity Ward”.
She has prepared a
report on the quality of nursing care in this case and on the 4
th
of April 2019 she prepared and signed a joint minute with Sister
Smit. She did not interview the patient but prepared her report
and
based her opinion on the hospital records provided to her.
[15]
She testified that the antenatal history of the patient is important
to determine the health of the mother and the baby during
pregnancy.
It demonstrates whether the mother was suffering from any illness
during the pregnancy and how that illness was treated
by the
antenatal clinic. According to the antenatal clinic card, the
plaintiff was tested for HIV on her first visit to the
clinic and
again later during her visits which is normal and in accordance with
the guidelines as published for Clinics and Public
Health Facilities.
The antenatal history of the plaintiff showed that she did not
experience any complications or illness during
her pregnancy until
she was admitted in hospital at 17H30 on the 7
th
of August 2014 when, for the first time, she presented with a high
blood pressure of 144/106 and a plus 3 protein in her urine.
Although
the doctor was called and he prescribed medication for the blood
pressure of the plaintiff at the time, he did not come
to assess and
examine the plaintiff. A partogram should have been immediately put
on the plaintiff to monitor her condition and
the foetal heart rate.
This was not done and the plaintiff’s blood pressure was only
measured again at 20H49 when it was
recorded to have come down to
146/88. It was still on the high range and a doctor should have been
called to advise if they should
continue with the treatment, but this
was not done by the nursing staff. According to the guidelines,
the plaintiff’s
blood pressure was to be monitored 2 hourly and
the foetal heart rate every half an hour. High blood pressure and
protein in the
urine compromises the supply of blood to the placenta
and by extension to the foetus.
[16]
She testified further that the full term of pregnancy is 40 weeks and
the mother on average gains between 10 and 15 kilograms
in weight. In
the present case, the plaintiff was 3-4 cm dilated at 17H30 when she
presented with hypertension and plus 3 protein
in the urine. She was
therefore at the active phase of labour. The doctor promised to come
and assess the plaintiff when he was
called at 17H30 but only came at
23H20. The partogram which is an essential tool to monitor the
progress of labour, the mother’s
condition and the foetal heart
rate, was only put on the plaintiff at 23H20 when she was 8 cm
dilated. The cardio-techno-graph
(CTG) should have been used
continuously from the time the plaintiff presented with hypertension
to monitor the foetal heart rate
and its reaction to the
contractions. The CTG at 21h49 showed that the foetus was in distress
since the heart rate had late decelerations
and it came under the
baseline of 150 beats per minute which was indicative that the foetus
had hypoxia – meaning the supply
of oxygen in the blood was
diminished. The nurses should have called the doctor to examine the
plaintiff at that stage. Action
should have been taken with uterine
resuscitation to improve the oxygen supply to the foetus by making
the mother to lay on her
left side. Vaginal examination was to be
done with the fingers to avoid cord strangulation of the foetus. She
opined that the healthcare
given to the plaintiff on that day was not
in accordance with the guidelines for the maternity ward and was
therefore substandard.
If action was taken to deliver the baby at
22h00 when the CTG showed that the foetus was distressed, the baby
would have been saved
and the outcome would have been different from
what it is today.
[17]
When it was put to her under cross examination that witnesses for the
defendant will testify that the baby was postdate, she
testified that
she was not aware of that because there was no record that the baby
had a particular colour and the first assessment
of newly born was
not completed. She did not have some of the documents which now form
part of the bundle of documents before the
Court. The guidelines are
necessary to follow but she has not compared them to world standards.
She agreed that the situation in
public hospitals in the Republic is
not ideal but the nurses should have continued monitoring the
plaintiff even if there was only
one CTG available. They should have
used other means like the statoscope to check the foetal heart rate
and insert their fingers
into the vagina to check the dilation. It
was not right for the doctor, even if he had 90 patients to attend
to, to take more than
4 hours to attend to the plaintiff who had a
high risk pregnancy. She insisted that if they performed a caesarean
section immediately
they realised at 22H00 that the foetus was
distressed, they would have delivered the baby at 23H00 and the
possible result would
have been a healthy baby. She was not aware
that the baby was growth restricted but if it was, then more
monitoring was required
since it was predisposed to the risk of
distress.
[18]
Dr Yatish Kara, a paediatrician, testified that he has been in
private practice for 22 years and had his primary interest in
neonatal care although he practices in all fields of paediatrics,
new-born, intensive care up to developmental paediatrics and
treats
children up to 17 or 18 years of age. He is a part-time consultant at
the University of KwaZulu Natal. He prepared a report
in this case
and a joint minute with Prof. Cooper. He interviewed the plaintiff,
examined the minor child and perused the hospital
records and the
medical legal reports of other experts.
[19]
From the hospital records, on admission the palpation was 29 weeks
whereas the antenatal card recorded 32 weeks measured 4
weeks
earlier. There was plus 3 protein in the urine and a blood pressure
of 144/106. This meant the mother had gestational proteinuric
hypertension (GPH) which factors should have raised concerns with the
midwife and that the baby has platooned from 32 weeks to
37 weeks.
This was a high risk pregnancy and needed to be vigilantly monitored.
Action was taken by contacting the doctor who prescribed
medication
for the hypertension and promised to come but only came to assess the
plaintiff 5 hours 20 minutes later at 23H20. Active
labour should
have commenced soon after admission and the partogram should have
been commenced then but it was only commenced at
23H20. The common
cause of growth restricted baby is placental insufficiency. However,
the placenta in this case was said to be
normal and had normal
weight. The baby was born in a very poor condition. There was no
proper assessment of the plaintiff at the
time of admission at 17H30
when she was diagnosed as being in the latent phase when she was in
fact in the active phase of labour.
[20]
There was no recording of the foetal heart rate before 21H50 when the
foetus distress was observed on the CTG. The presence
of meconium and
a CTG which is non-reassuring makes it likely that the foetus was
compromised. The baby was resuscitated immediately
after birth and
its apgar score was recorded as 3/10 and 5/10 in the first minutes of
life. It was diagnosed with overt neurological
syndrome in the first
hours or day of life. The presence of these factors, the results of
the MRI scan and the suspicion of birth
asphyxia and the type of
cerebral palsy that this child suffered, makes it probable that the
cerebral palsy was due to an intrapartum
hypoxic ischemic insult.
Foetal growth restriction makes intrapartum injury more likely
because the foetus is less equipped to
deal with the stresses of
labour. A growth restricted baby has low reserves of stored glucose
and labour being a hypoxic event,
ie, the uterine contractions
restrict blood supply to the foetus only for seconds, it cannot
tolerate the interruption of blood
supply and it runs a high risk of
brain injury. It is critical for the obstetric team to manage a
growth restricted foetus with
extra vigilance to prevent such injury
and this was not done in this case.
[21]
The baby’s birth weight was 2060g and that places the baby just
above the third percentile. It did not cry, reflexes,
grasp and
sucking were all absent. The doctor assisted with the resuscitation
of the baby in the ward and on admission it was diagnosed
with birth
asphyxia with hypoxic ischemic encephalopathy (HIE) within 24 hours
after it was born. A cranial ultrasound was done
and it was recorded
as normal which means that there is no evidence to support that the
injury occurred before labour. An injury
must have occurred a week or
more before birth if it were to show on the ultrasound or for the
ultrasound to be abnormal when done
after birth. Antenatal insults
account for 10% of hypoxic ischemic injury and often potentiated by
events in labour. If the injury
occurred before labour, it was made
worse, because the baby was growth restricted, during labour. Babies
with intrauterine growth
restriction are at high risk and predisposed
to distress when dealing with labour. The baby suffered multiple
seizure episodes
on its first day of life. This makes the
encephalopathy to be a grade 2 or grade 3 which means it is
moderately severe or severe.
This sets the tone as to when most
likely the injury occurred and in this case it probably occurred
during labour.
[22]
He testified further that there are two types of cerebral palsy that
are dominant in cases of intrapartum hypoxic injury being
spastic
quadriplegia and dyskinetic cerebral palsy. S has dyskinetic cerebral
palsy because the MRI scan shows hypoxic ischemic
insult which makes
it 80% probable that the injury occurred during labour. It was
recorded that he was admitted for meconium aspiration
and growth
retardation and that he had respiratory distress which may have been
due to acidosis. Acidosis occurs when the baby’s
blood becomes
acidic due to an accumulation of lactic acid which is formed from the
breakdown of glucose stored in the foetus.
Hypoxic ischemic injury
means that the tissues of the body are not receiving the blood and
oxygen supply and the body stops using
the stored glucose to make
energy so that the lungs, liver, kidneys, brain and the heart can
function. A by- product of this process
is the lactic acid, the
accumulation of which causes the baby to breathe rapidly. The
standard basic care for the new-born who
is born under compromised
circumstances is to test blood gas because it gives an indication of
the foetal acid base balance just
before delivery but this was not
done. The presence of metabolic acidosis in a baby born in a
compromised condition is highly predictive
of intrapartum hypoxia
ischemia. The respiratory distress of the baby may have been caused
by metabolic acidosis or the inhalation
of the meconium.
[23]
He testified that there was no record of the weight and the
measurement of the head circumference of the baby taken at birth
to
determine whether the baby was postdate or growth restricted. It is
recorded that he had convulsions within 24 hours and the
MRI scan
done after delivery shows a partial prolonged and acute profound
hypoxic ischemic insult. A partial prolonged insult is
an injury that
occurs over a long period of time and affects the human brain. An
acute profound insult occurs later on when the
initial compensation
fails and affects the centres vital for life (the white matter).
These injuries occur over a period of hours
and minutes. When hypoxic
ischemic occurs the body first compensate by diverting blood from the
non-core areas, then the heart
gets compromised and the foetal heart
rate becomes abnormal and then there is brain compensation and the
use of the energy that
is stored to keep going. When the compensation
fails, then there is a prolonged partial watershed injury, which when
it fails further,
then the acute profound compartment. When there is
lower levels of blood in the brain, it becomes a factor for lower
levels of
sugar. There are no other abnormal features which he found
to make him think that the brain was damaged for any other reason
other
than hypoxic ischemic injury and that is also confirmed by the
MRI. The cause of the cerebral palsy in S is a hypoxic ischemic
injury. As a result S is, in his opinion blind and perhaps deaf and
cannot receive or express information.
[24]
He admitted under cross examination that an injury may occur before
labour but that in the present case there is no evidence
to that
effect. This pregnancy was of high risk and it was not
recognised as such. The events at birth make it less likely
that an
antenatal insult was the cause of the brain injury. He insisted that
intrauterine growth restriction (IUGR) is not a cause
of HIE but is a
factor of hypoxia and puts the foetus at a higher risk to HIE. Skin
peeling is a feature of IUGR but not proof
of placenta insufficiency
and there is no evidence of placenta insufficiency in this case as
the placenta was recorded as normal
and of average weight. There was
no concern of the foetus on admission at 17H30 which makes it highly
unlikely that the injury
occurred before labour. He disagreed that
the partial prolonged insult started weeks before labour otherwise
the CTG tracing at
17H30 would have indicated foetal distress but the
foetal condition was normal. A lot of babies are born with skin
peeling but
that does not signify that its brain was compromised.
Even wasted babies are born with normal brain function.
[25]
He retorted that poor placental function or insufficiency may cause
partial profound brain damage weeks prior to labour but
stated that
it was unlikely in this case considering that the condition of the
foetus was normal on admission at 17H30 –
hence he opined that
it occurred during labour. If there was damage on the foetus 2 –
3 weeks before labour, the ultrasound
done after birth would have
picked it. He disagreed with the proposition that an acute profound
injury occurs only 45 minutes before
delivery and stated that it can
occur even 3 hours before delivery depending whether there is a
sentinel event. A partial prolonged
injury develops to an acute
profound injury – it is a continuum between the partial
prolonged and the acute profound injury.
[26]
Dr Kudakwashe Fanwel Chimusoro, a specialist obstetrician and
gynaecologist, testified that he prepared a medical legal report
in
this case based on the antenatal and hospital records and information
obtained from the plaintiff. He testified that the plaintiff
last had
her menstrual period in November 2013 – her expected delivery
date was end of August or early September 2014. Her
clinic record
noted that there was no family history, no diabetes, no disability
and no risk factors were highlighted. No abnormalities
were noted and
there was nothing of concern. She did not have any sexually
transmitted disease. The growth of the baby was plotted
above the 5
th
percentile on the clinic card and was growing on average. In the
whole, this was a healthy pregnancy and all the parameters were
in
keeping with the pregnancy at 32 weeks.
[27]
The plaintiff was diagnosed on admission with the blood pressure of
144/106 and protein plus 3 in her urine. This meant the
blood vessels
were taking strain and the plaintiff needed monitoring and attention
to avoid complications. The abdominal examination
showed that the
baby was not growing well since the palpation was 29 and the SF
height 32 when the gestational period was 37 weeks.
She was a high
risk pregnancy with GPH and if it was classified as moderately severe
or severe, then the baby should have been
taken out by caesarean
section if it was not big enough to withstand the stresses of labour.
If labour were allowed to proceed
in the normal course, then it was
supposed to be closely and electronically monitored. Once the
plaintiff was given medication
for the blood pressure, then it must
be monitored so that the blood pressure does not suddenly drop
because the baby’s heart
might stop. The guidelines prescribe
that if medication is prescribed for the blood pressure, then the
patient should be monitored
and the blood pressure be checked every 2
hours, and the foetal heart rate every 30 minutes. There is no record
of any monitoring
of the maternal status. These were 2 high risk
factors in the pregnancy and needed intense and close monitoring by
the senior midwife
and the doctor, but this was not done. At 20H49
the blood pressure was measured at 146/88. Although it was still on
the high side,
it was reasonable but there was no urine testing which
makes the assessment incomplete. There was no close monitoring of the
plaintiff
as required by the guidelines – hence the care was
substandard.
[28]
He testified further that intrauterine growth restriction (IUGR)
occurs due to placenta insufficiency which is when the placenta
cannot give the baby what it needs. A growth restricted baby is prone
to damage and or cannot cope with the stresses of labour.
It suffers
foetal distress as it is not getting oxygen or energy since the blood
supply to the uterus is disrupted. During labour
the foetal heart
rate is used to determine the condition of the foetus and the heart
beats should be 110 – 160 per minute.
A growth restricted baby
start slowing down the heart rate to conserve energy. However, IUGR
is not an absolute cause of cerebral
palsy but is only a factor for
foetal distress. To determine whether the baby was growth restricted,
the record of the head circumference,
its height and weight at birth
is required and this was not done. The weight of the baby was 2 060g
at birth and was above the
3
rd
percentile. Since the foetal heart rate was recorded as fine on
admission, then the strong likelihood is that the cerebral palsy
happened during labour. Something else was required to eventuate the
risk even if the baby was in the 3
rd
percentile. More monitoring was necessary for this kind of pregnancy
and it was not done.
[29]
He testified that the assessment that the plaintiff on admission was
at the latent phase of gestation was a misdiagnoses since
she was 3-4
centimetres dilated. The plaintiff was diagnosed with GPH and a
growth restricted baby – thus as she was at an
active phase of
labour, she needed continuous monitoring and this was not done. It is
surprising that the doctor only saw her at
23h20, having been
informed of her condition at 18H00. The baby did not suffer brain
damage before presentation at hospital on
the 7
th
of August 2014 since the foetal heart rate was recorded as normal at
17H30. If there was something wrong or the baby had suffered
some
injury before then, the foetal heart rate would have shown certain
signs and not make a normal recording.
[30]
The CTG scan at 21H49 was not pathological and the baby was therefore
still in a reasonable condition as it was accelerating
and
decelerating normally in response to the plaintiff’s uterus
contractions. Later, at 22H10 the CTG was pathological as
the foetal
heart rate took long to resume the 140 beats per minute as it started
to conserve the energy. The foetal heart
rate dropped to below
100 (70) per minute as it was now in distress. This causes the
profound injury due to a lack of and or insufficient
supply of blood
and oxygen to the baby. To survive, the baby directs the supply of
blood to the inner part of the brain which is
more important than the
outer brain. If the baby was taken out at 17H30, it would have been a
small baby but with no brain damage.
At 22H10 the hospital staff
should have intervened with an intrauterine resuscitation as there
were 3 decelerations and proceed
to speed up delivery by caesarean
section but they did not, instead they allowed labour to continue. No
action was taken to save
the baby nor was monitoring with a partogram
initiated at this stage and that is substandard care given to the
plaintiff.
[31]
Nothing was recorded between 22H10 until 23H20 when the doctor
arrived for the first time to assess the plaintiff and the CTG
results were again misinterpreted as normal whereas it was
non-reassuring. The partogram was only initiated at this stage and
there is only one entry in relation to the partogram. The artificial
rapturing of the membrane does not seem to have been done by
the
doctor as he did not record the meconium. There is no indication or
record that the staff was aware that the plaintiff would
deliver at
00H10. The baby was resuscitated at birth and the Apgar score was
recorded in the first 5 minutes as 3/10 and 5/10 but
this was an
assisted score since the doctor resuscitated the baby at birth. The
baby was not postdate and the peeling of skin was
not because of
growth restriction but lack of the blood supply and the fat that
comes with it.
[32]
He testified under cross examination that it is unlikely that the
baby suffered any injury before the plaintiff presented on
the 7
th
August 2014 since the foetal heart rate was recorded as normal on
admission. Skin peeling could have been caused by the incubator
or by
IUGR as the baby had no reserves to make the brown fat to protect its
skin. From an obstetrician’s perspective, the
injury could not
have happened before delivery. The CTG on admission was not
pathological and the baby was not showing any distress
– thus
the baby was in a reasonable condition. He agreed that the baby was
not growing well in the womb but that it was not
distressing as it
adjusted to its environment.
[33]
He conceded that the CTG scan is not 100% correct but stated that it
was a useful tool and guide which alerts the paediatric
team to
investigate further by doing other tests. However, there was inaction
in this case although the CTG scan showed that the
plaintiff had
protein plus 3 in its urine and a blood pressure of 144/106. Foetal
heart rate is key to determine whether there
was an injury before
labour. He disputed that the CTG scan is junk science with a 99%
false positive. The CTG scan has its limitations
but it is valuable
in high risk patience such as the plaintiff.
[34]
He testified that the hospital staff had the ability to pick up the
problem and offer assistance but failed to do so and that
was
substandard care given to the plaintiff. If the hospital did not have
the capacity, it was supposed to refer the plaintiff
to a hospital
which had the capacity. A patient with GPH and protein in her urine
needed constant monitoring at intervals of 2
hours, even if they did
not have the CTG scan, they should have used the statoscope to listen
to the foetal heart rate. He agreed
that the acute profound injury
happens fast but stated that the signs were there in this case and
the hospital staff did not take
the necessary action – hence
the injury was not avoidable. The hospital staff should have acted at
22H10 and there was a
fair chance that the baby could have been
saved.
[35]
He agreed that IUGR is sometimes caused by placenta insufficiency and
that IUGR babies need to be managed as high risk. Dr
Pheeha should
have been worried that the patient has platooned from 32 to 36 weeks.
The patient developed hypoxia later in labour
and it was caused by
the GPH as the blood pressure of the patient was not monitored in
terms of the guidelines at intervals of
2 hours since it interferes
with the transfer of oxygen from the placenta. The CTG results were
pathological at 22H00 since the
foetal heart rate would decelerate
and only return to normal after 3 minutes
[36]
The child was not given a chance since the caesarean section was not
done and or delivery was not induced timeously. Caesarean
section was
necessary since the delivery was not imminent and the foetus was in
distress. The injury was a grade II since the child
suffered some
seizures at birth. He testified that the blood pressure could stress
the baby but the stress of labour is the one
that tips the scale.
Placenta pathology was not done which could have given more
information on intrauterine infections and other
diseases. Cord
compression is excluded in this case for there were no signs like the
foetal heart rate. On the facts of this case
the cerebral palsy was
caused by foetal distress which was not managed at all during labour.
The hospital staff failed to adhere
to the guidelines and monitor the
plaintiff and its baby frequently and closely as required.
[37]
Dr John Christopher Archer, an obstetrician and gynaecologist of 35
years, testified that he prepared a medical legal report
and
confirmed signing a joint minute with Dr Chimussoro in this case. He
considered a number of articles and prepared an addendum
to his
report. He testified that this case is clearly a high risk pregnancy
which required constant monitoring. Further, he testified
that it is
inadequate to have one CTG machine when there are 13 patients in the
labour ward ready for deliveries. It is not ideal
to have 1 midwife
for a delivery since the record keeping becomes poor and the midwife
cannot be expected to use the statoscope
whilst the patient is
pushing at the same time.
[38]
The CTG is a screening but not a diagnostic tool which is used to
monitor the foetal condition. It is used to detect foetal
distress or
that a baby is in some kind of trouble. It has not been shown to
reduce cerebral palsy and has a false positive of
99.8%. The CTG is
reactive when the foetal heart rate is between 110-160 beats per
minute and it is classified as a grade II when
it shows abnormality
but not that gross as the brain of the baby is still intact. The CTG
only tells about the foetal heart rate
and not the brain of the
foetus. The baby is not in a reasonable condition when the CTG is
pathological and the foetal heart rate
is not responding. The CTG
would not pick up a foetus that suffered an intrauterine stroke. The
CTG at 21H50 is normal as a category
II and is not associated with
acidosis or brain injury. Although the foetus suffered large
decelerations it was a sign of increasing
hypoxia by something and
needed action but not necessarily immediate delivery. There was still
a need for a diagnostic process
to be done before any remedial action
could be taken.
[39]
He testified that an acute profound injury is so sudden and
catastrophic that it cannot be prevented by an intervention including
by a caesarean section delivery. He agreed with Dr Chimussoru that if
the baby was delivered at 22H00 the baby could have been
saved and it
was a missed opportunity by the hospital staff which resulted in the
care of the plaintiff being substandard. However,
he is unconvinced
that the substandard care given to the plaintiff was the cause of the
injury. IUGR and GPH are associated with
the increase in cerebral
palsy and foetal distress during labour. This was a small baby and
skin peeling confirmed that it was
stressed before labour. The baby
could get an injury affecting the brain but not apparent on admission
and only the stress of labour
will make the baby become hypoxic. The
baby was small and the mother had GPH making the pregnancy a high
risk necessitating close
monitoring and the creation of a birth plan
which the hospital staff failed to do. Skin peeling shows that the
baby was postdate
but the 37 weeks gestation contradicts that.
[40]
He continued to testify that there is a lot of literature supporting
the relationship between IUGR and cerebral palsy. If the
placenta is
not functioning optimally the foetus will not grow optimally and the
lower the birth weight of the baby the greater
the chance for brain
damage. Cord compression reduces blood flow to the foetus causing
hypoxia which in turn causes brain damage
resulting in cerebral
palsy. Because the baby was clearly sick on admission, it is possible
that the injury occurred before labour.
[41]
He testified under cross examination that he left clinical practice 3
years ago and that he has been involved in more than
150 similar
cases 5 of which were for the plaintiff with one wherein his
testimony was rejected by the court. From his reading
of the
antenatal card there seemed to be nothing wrong with the plaintiff
until the point of admission. He agreed that alarm bells
should have
sounded when she presented with high blood pressure and protein in
her urine. She was misdiagnosed on admission as
being in latent phase
when she was in fact in the active phase of labour. A partogram,
which gives full history of the labour,
should have been commenced at
this stage.
[42]
This was a high risk patient and the foetal heart rate should have
been monitored closely and every 30 minutes. Foetal heart
rate would
alert the staff of any abnormality so that they could act
accordingly. It was inappropriate and substandard care to
check the
blood pressure after 3 hours after having given the patient
medication for the blood pressure. It was not a resource
issue to
measure blood pressure at 20H49 and not to check on the foetal heart
rate but a dereliction of duty and incompetence on
the part of the
staff.
[43]
He agreed that IUGR is a risk factor for hypoxia and needs something
to happen for the risk to eventuate and labour is most
stressful. The
foetal heart rate reacts at many things and the CTG is there to alert
staff. He agreed that the baby had not
suffered a partial
prolonged injury on admission and that IUGR predisposes the baby to
injury. He agreed that MRI does not
time the injury, that the
plaintiff was in active phase on admission and that the hospital
staff missed about 9 opportunities to
assess the foetus and
intervene. Foetal heart rate was non-reassuring and action in the
form of intrauterine resuscitation should
have been taken at that
point at 22H00.
[44]
The CTG may look normal but cannot rule out any injury that occurred
just before labour. At 22H00 the nursing staff did
not know
when the plaintiff was going to deliver the baby and at worst she was
to deliver at 02H30. He further agreed that a partial
prolonged
injury is usually followed by the acute profound injury if there is
no intervention. When the partial prolonged occurs,
the foetal
mechanism to protect itself takes over and when it has lost all its
defences the acute profound injury occurs. Considering
the
circumstances of this case, the CTG will function normally when in
fact there was an injury before labour, but we do not know
when
exactly the injury happened.
[45]
He continued to testify that if cord compression did not occur then
the injury occurred intrapartum. He conceded that he overstepped
the
mark by putting things which are not supposed to be in his report and
saying the plaintiff must prove on a balance of probabilities
that
the injury occurred during labour. He agreed that 2 CTGs were
functional on the day the plaintiff was admitted. He conceded
that
the failure of the hospital staff to take action at 22H00 is
indefensible. He admitted as a speculative possibility that the
injury might have occurred before entering the labour ward.
[46]
He conceded that it is speculation to think that there is something
wrong with the placenta since no placenta pathology was
undertaken.
He agreed that the baby was coping within its environment and that
mismanagement caused the problem. He reiterated
that cord compression
can cause the injury before labour but cannot be traced after birth.
It is possible for the partial prolonged
injury to have occurred
before labour due to lack of blood supply to the foetus. It is ideal
to have 1 midwife per 2 patients and
to make proper notes since they
are important. Nothing was affected by the lack of resources in this
case.
[47]
Dr Makgwadi Stepen Pheeha, a grade 1 medical officer and general
practitioner, was on duty on the 7
th
of August 2014 and was responsible for the general female problems
and the maternity ward at Yusuf Dadoo Hospital. He testified
that it
was strange that the plaintiff was kept waiting to enter the
maternity ward from 10H00 until 16H00. Sister Kgengwe, a midwife,
was
the one who interviewed, assessed and examined patients on that day
and contacted the doctor if there were any problems. A
nurse checked
the vital signs of the plaintiff and called him to prescribe
medication for blood pressure. He did a walk about the
ward at about
20H00 to see if there were any red flags and there was none. The
blood pressure of the plaintiff was checked at 20H49
and it was found
to be going down and he decided to allow labour to progress.
[48]
He was informed of the abdominal examination which showed that
palpation was 29 and an SF height of 32 and interpreted it with
the
clinical card which suggested 36 weeks gestation – to mean that
the baby was small for the gestational age. This was
a growth
restricted baby. Such a small baby for gestational age is a concern
but not an emergency and he allowed labour to progress
because an
operation is a danger to the patient. He saw the plaintiff again at
23H20. The plaintiff presented with a mild blood
pressure and protein
in her urine. Only one sample of urine was tested at the time and
needed to do more urine tests before he
could consider removing the
baby by caesarean section – hence he decided to intervene by
prescribing medication.
[49]
He makes notes when he has time and the note at 23H20 related to what
happened at 22H30. The plaintiff was 7-8 cm dilated and
in the active
phase of labour. He did the artificial rapture of the membrane and
disputes that he did not see the plaintiff before
as he saw her twice
that day. He had 13 deliveries to manage on that day and only
one CTG machine was working. He had
90 patients to attend to
and the sisters were also assisting in terms of the protocol. Sister
Ramaboa was responsible for the plaintiff.
The CTG at 22H10 was
reactive and he considered the foetal heart rate variability at the
time and found nothing wrong – hence
he allowed labour to
progress. After entering the note at 23H20 he waited to observe the
labour and the plaintiff delivered within
an hour.
[50]
Under cross examination he testified that he remembers certain
details of the matter but he could not say where exactly he
was at
21H00 on that day and what he was doing. He agreed that a patient
with GPH is high risk but he could manage it and he allowed
labour to
progress as the baby was on its way. Although it was not recorded, he
saw the patient at 20H00 because she was in the
active phase of
labour and needed to be checked 2 hourly. He was concerned with the
palpation of 29 and SF height at 32 gestation
showing that the baby
did not grow properly but it did not warrant that he should take out
the baby. The CTG at 22H10 was reactive
and the baby was fine
although there were decelerations due to the contractions. He
disputed that he was part of the problem that
the baby was born with
cerebral palsy.
[51]
Dr Ugobor Osamwonyi, the Chief Executive Officer of the hospital,
testified on the ideal resources the hospital required and
what it
had at the time. He testified about the budgets over the years from
2013 and that on the 7
th
of August 2014 there were 3 CTG machines but 2 thereof were in for
repairs. He confirmed that he was in charge of the doctors and
that
only 1 doctor was allocated to maternity ward at night. He disagreed
with the proposition that 2 CTG machines were working
on the day. He
confirmed that on the 7
th
August 2014 there were no capacity issues since there was a doctor on
duty at the maternity ward.
[52]
Professor Arnold Louise Christianson, a paediatrician and specialist
medical geneticist, testified that he compiled a medical
legal report
in this case. He testified that the HIE scores of 6 on 10 August
2014, 4 on 11 August 2014 and 4 on 12 August 2014
are indicative of
HIE grade 1 which usually does not progress to cerebral palsy. HIE 1
is not associated with an abnormal long
term outcome and the baby in
this case has a hypoxic ischemic cerebral injury of partial prolonged
and acute profound type. The
baby had a neurological depression at
birth and according to his score on day 3 of 6/10 it means that he is
graded as HIE 1 which
is moderate. It confirms that the injury is not
intrapartum for it should have been worse within 72 hours if it was
intrapartum.
[53]
He testified that babies with IUGR are at a high risk of developing
HIE and cerebral palsy. The injury to the baby must have
occurred
before labour since it turned out to be HIE 1. The baby was born at
35 weeks 5 days weighing 2060g and that places him
under the 3
rd
centile when using the international birth chart. His head
circumference was 34 cm 3 days after birth which makes him a wasted
baby.
[54]
He testified under cross examination that he last did general
paediatrics in 1992. He conceded that the baby had upper limb
jittery
but stated that that does not necessarily mean that the baby had
seizures. Sometimes it does but babies respond differently
to
stimulus. He conceded that the apgar score of 3/10 and 5/10 was
an assisted score since the baby was resuscitated at birth.
He
further conceded that the baby had 3 seizures on the first day of
life but that it was treated therefor. He disputed that HIE1
have
seizures but accepted that the baby had episodes of seizures in its
first day of life. This is confirmed by literature
in these
types of injury including a grade II HIE. He disagreed with Dr Kara
and Dr Cooper that the seizures put the grading of
the HIE of this
baby as grade II. He conceded that the article he referenced to refer
to severely affected infants whereas the
baby in this case is not
severely affected.
[55]
It is a principle of our law that for the plaintiff to succeed with
its claim against the defendant it must establish on a
balance of
probabilities that its version is reliable and can be believed. As
indicated above, the experts agreed that the care
received by the
plaintiff on the 7
th
to the 8
th
of August 2014 at the hospital was substandard. What remains for
determination is whether the substandard care is the cause of
the
injury sustained by the S and the resultant damages.
[56]
Advocate Sibuyi SC, counsel for the defendant, submitted that the
hospital did not have the capacity or resources to handle
the number
of patience that presented on the day. The hospital was under staffed
and one doctor had to look after 90 patients.
There were 13
deliveries to be managed with only 1 CTG machine
available. However, Dr Pheeha, who was the doctor assigned
to the
maternity ward that night did not allude to capacity problems in the
hospital except that he was assigned to more than 1
ward on the day.
Further, this submission was negated by Dr Ugobor Osamwonyi, the CEO
of the hospital, who testified that there
were no resource or
capacity problems on the day and that one doctor was assigned to
strictly attend to the maternity ward.
[57]
It is apparent that there were 2 CTG machines that were working on
the day and that the hospital staff was not only obliged
to use the
CTG scan to monitor the foetal heart rate but could also use the
statoscope to listen to the foetal heart rate. Further,
it was agreed
by the experts that if the hospital did not have the capacity or
resources to handle a complicated labour, it was
obliged to refer the
patient to a hospital that was better equipped to do so. Dr Pheeha
also confirmed in his testimony that the
labour of the plaintiff was
nothing he could not handle – hence he did not find it
necessary to refer the plaintiff to another
institution which was of
a higher level than this hospital. I therefore hold the view that the
capacity or resources of the hospital
were not an issue on the day in
question.
[58]
I am unable to agree with the submission by counsel for the defendant
that the intrauterine growth restriction suffered by
the baby after
32 weeks was caused by the plaintiff either by not eating properly or
because she was using drugs or consuming intoxicating
liquor.
The uncontroverted evidence of the plaintiff is that she ate properly
during the pregnancy and has never consumed
intoxicating liquor or
taken drugs in her lifetime. This is also borne out by the antenatal
clinic record that she was not treated
for any sickness during her
attendances to the clinic except that she was given medication or
vitamin supplements which are normally
given to pregnant mothers.
[59]
It is on record that the experts agreed that when the plaintiff
presented and was diagnosed with gestational proteinuric hypertension
with plus 3 protein in her urine at 17H30 on the 7
th
of August 2014 and with 3-4 cm dilation, she was supposed to be
treated as a high risk pregnancy. Further, that since the palpitation
was 29 and the SF height was 32 gestational age on admission, it
meant that the baby was growth restricted and small. This
necessitated that, although the foetal heart rate was normal at the
time, it was supposed to be checked every 30 minutes and the
blood
pressure of the plaintiff every 2 hours.
[60]
However, the nursing staff did not follow the guidelines and monitor
the foetal heart rate and the blood pressure of the plaintiff.
The
blood pressure of the plaintiff was only checked at 20H49 and the
foetal heart rate at 21H49 when the CTG scan was misinterpreted
by Dr
Pheeha as reactive when it was in fact non-reassuring and
pathological and the baby was in distress or in trouble. The experts
further concurred that it was for the hospital staff at the time to
immediately take action by doing an intrauterine resuscitation
of the
foetus. Should the intrauterine resuscitation have failed, then they
were to decide to immediately take out the baby by
caesarean section
rather than to allow her labour to continue until she delivered
vaginally.
[61]
I am in agreement with Advocate McKelvey for the plaintiff that the
hospital staff missed about 13 opportunities within which
to take
remedial action and deliver the baby rather than to allow the
continuation of her labour. I am appalled by Dr Pheeha’s
testimony that he did not find anything wrong with the CTG of 21H49
when he interpreted same at 23H20. All the experts agree, except
Dr
Pheeha, that the 22H00 CTG was non reassuring calling for prompt
action from the hospital staff which was not done. Dr Pheeha
makes a
flimsy excuse that a caesarean section is a danger to the patient –
hence he did not find it necessary to put the
patient at that risk.
[62]
I am therefore in agreement with counsel for the plaintiff that Dr
Pheeha was part of the problem in this case. He failed to
take charge
of the situation when he received the report on the plaintiff at
17H30 that she has hypertension and plus 3 protein
in her urine.
Instead, he prescribed medication and failed to appreciate that he
was dealing with a high risk pregnancy which needed
continuous
monitoring but only came at 23H20 to examine the patient. Even then,
he misinterpreted the CTG scan that was non-reassuring
showing that
the baby was in distress and in trouble and assessed it as reactive –
hence he allowed labour to continue.
[63]
The experts agreed that hypertension of the mother causes the lack of
blood supply to the uterus and by extension to the foetus.
The MRI
scan revealed that the brain injury described as partial prolonged
and acute profound hypoxic ischaemic injury occurred
in a term baby’s
brain. The MRI demonstrated no features of congenital infection nor
the presence of cord compression or
placenta insufficiency. I do not
agree with Dr Archer’s proposition that the injury to the baby
might have been caused by
cord compression which cannot be traced
after birth. Nothing turns in the suggestion that the placenta was
not pathologically tested
and cannot be conclusively accepted that it
was normal under the circumstances. The uncontested evidence is that
the placenta was
normal and had normal weight.
[64]
Counsel for the defendant contended that the timing of the injury is
that it occurred before labour when the hypertension started
and
caused the partial prolonged injury. However, although Dr Archer
suggested this possibility, it flies in the face of the evidence
that
on admission at 17H30, the CTG revealed that the foetal heart rate
was normal. If the foetus had suffered any injury before
admission,
according to Dr Chimusoro, the CTG would have been pathological and
non-reassuring showing that the foetus was in distress.
Dr
Archer also conceded that if the partial prolonged injury did not
occur before labour, then it occurred intrapartum. Further,
it is on
record that if the injury occurred a week or two before labour, it
would have been detected by the ultrasound which was
done after the
birth of the baby.
[65]
I am unable to comprehend the rational of Dr Archer that the CTG
should not be believed for it has a 99.98% false positive.
He
rubbishes the CTG scan and calls it ‘Junk Science’.
However, this begs the question why is the CTG scan continually
in
use in hospitals if it was so unreliable. I accept the view of Dr
Chimusoro, which to some extent is the view of Dr Archer,
that the
CTG is not the final tool for monitoring but one needs to follow up
with other tests to ascertain the condition of the
patient. I
therefore conclude that Dr Archer rubbished the CTG scan as Junk
Science in an attempt to bolster the case for the defendant
so that
the action or inaction of its staff in response to the results of the
CTG should not be seen as negligence.
[66]
I am unable to agree with Dr Archer that placenta insufficiency or
cord compression could have been the cause of the lack of
blood and
oxygen supply to the foetus. The uncontroverted evidence before this
Court is that the placenta was noted as normal by
the hospital staff
and therefore the theory of placenta insufficiency falls to be
dismissed as speculation. Further, cord compression
was excluded by
the MRI scan which has been admitted in evidence by agreement.
[67]
In
Bee
v Road Accident Fund (093/2017) [2018] ZSCA 52 (29 March 2018
)
the
Supreme Court of Appeal per Seriti JA stated the following:
“
It is
trite that an expert witness is required to assist the court and not
to usurp the function of the court. Expert witnesses
are required to
lay a factual basis for their conclusions and explain their reasoning
to the court. The court must satisfy itself
as to the correctness of
the expert’s reasoning.
The facts on
which the expert witness expresses an opinion must be capable of
being reconciled with all other evidence in the case.
For an opinion
to be underpinned by proper reasoning, it must be based on correct
facts. Incorrect facts militates against proper
reasoning and the
correct analysis of the facts is paramount for proper reasoning,
failing which the court will not be able to
properly assess the
cogency of that opinion. An expert opinion which lacks proper
reasoning is not helpful to the court.
……
If
an expert witness cannot convince the court of the reliability of the
opinion and his report, the opinion will not be admitted.
The joint
report of experts is a document which encapsulates the opinions of
the experts and it does not lose the characteristic
of expert
opinion. The joint report must therefore be treated as expert
opinion. The fact that it is signed by two or more experts
does not
alter its characteristic of expert opinion. The principles applicable
to expert evidence or reports are also applicable
to joint report.
The joint report before the court is consequently part of evidential
material which the court must consider in
order to arrive at a just
decision. The court, in such instance, will be entitled to test the
reliability of the joint opinion,
and if the court finds the joint
opinion to be unreliable, the court will be entitled to reject the
joint opinion. The court is
entitled to reject the joint report or
agreed opinion if the court is of the view that the joint report or
opinion is based on
incorrect facts, incorrect assumptions or is
unconvincing.”
[68]
Dr Archer has ignored the facts of this case and tried at all costs
to bring in some other theory as a possible cause of the
injury to
the baby’s brain. The MRI scan has been admitted in evidence,
however, Dr Archer still suggest a theory of cord
compression as the
possible cause of the injury. He insist on placenta insufficiency as
the possible cause of the injury to the
baby when the placenta was
noted as normal and of a normal weight. His contention is that the
placenta was not properly or pathologically
tested and it can
therefore not be conclusively accepted that it was normal. I
therefore conclude that Dr Archer’s evidence
is not based on
the facts of this case and is purely speculative and falls to be
dismissed.
[69]
It is agreed amongst the experts, the partial prolonged injury occurs
when there is insufficient supply of blood and oxygen
to the foetus.
This will be followed by the acute profound injury if the
insufficiency of blood and oxygen supply to the uterus
and the foetus
continues resulting in the HIE injury to the brain.
It
is on record that IUGR does not by itself result in cerebral palsy
but it is a risk factor for intrapartum hypoxia and hypoxic
brain
injury if not properly managed. Further, that a growth restricted
baby does not per se become brain damaged but it is predisposed
to
the danger if not properly monitored as it is weak to withstand the
stresses of labour. Generally, babies with growth restriction
are
born without any complications. I accept the evidence of Drs Kara and
Chimusoro that for the growth restricted baby to suffer
an injury
there must be a sentinel event, which in this case is the labour. I
am of the view therefore that, the ineluctable conclusion
is that the
baby suffered the HIE in utero and during labour since the foetus was
in a reasonable and good condition on admission
at 17H30 on the 7
th
of August 2014.
[70]
In
Magqeya v MEC for Health, Eastern Cape (699/17)
[2018] ZASCA
141
(1 October 2018)
the Court stated the following:
“
Paragraph
39: As I have said, in my view, the radiology report supports the
contentions advanced on behalf of Ms Magqeya that what
had occurred
was an unmonitored and undetected gradual evolution of hypoxia,
followed by the acute, catastrophic hypoxic ischaemia.
The lack of
adequate monitoring and care constitutes in my view negligence. It
was common cause (conceded by Professor Buchamann)
that this neglect
was contrary to the professional guidelines and practice. Such a
‘failure’ of a professional person
to adhere to the
general level of skill and diligence possessed and exercised at the
same time by members of the branch of the
profession to which he or
she belongs would normally constitute negligence.
Paragraph 40:
This court has held that the nursing profession is a distinct
profession and nurses are expected to perform
their duties with the
requisite skill and diligence exercised by members of that
profession. The negligent lack of monitoring and
care for the
extraordinarily long periods, as set out above, resulted in the risk
of, inter alia, hypoxia developing unnoticed.
Was this, however,
adequate for factual causation to have been established on a
preponderance of probabilities? For the reasons
that follow, I am of
the view that the answer should be in the affirmative.”
[71]
It was submitted by counsel for the defendant that the acute profound
injury happened between 23H20 and 00H10, ie, less than
90 minutes
before the delivery of the baby – hence the hospital staff
could not take any intervening action and deliver a
healthy baby. It
was contended that a sentinel event has occurred in this case, a
sudden acute, unexpected profound event which
caused sudden great
damage.
[72]
I do not agree. The facts of this case are distinguishable from those
in Maqgeya referred to above where it was accepted that
no
intervention by the hospital staff could have saved the baby if the
acute profound injury occurred 90 minutes before delivery.
Firstly,
the hospital staff in this case did not know that the plaintiff was
due to deliver at 00H10. Secondly, the acute profound
injury is
accepted as continuum of the partial prolonged injury which could
have been detected earlier had adequate monitoring
and care been
exercised timeously.
[73]
It is apparent that the CTG was non-reassuring at 22H00 showing that
the baby was in distress but Dr Pheeha misinterpreted
the CTG as
being reactive and assuring and decided to allow labour to progress.
Had there been adequate and proper monitoring and
care from the time
of admission of the plaintiff, and had Dr Pheeha attended to the
plaintiff at 22H00 and interpreted the CTG
correctly at that time, he
would have initiated procedures to save the baby including delivery
by caesarean section. The baby would
have been saved and delivered
before 23H30 and the outcome would have been different.
[74]
As indicated above, the hospital staff misdiagnosed the plaintiff as
being in a latent phase of labour on admission when she
was in fact
in the active phase. Had the hospital staff assessed and diagnosed
the plaintiff correctly at the time, and since she
was diagnosed with
hypertension and plus 3 proteinuric, the partogram would have been
commenced and constant monitoring at intervals
of 2 hours for the
plaintiff and every 30 minutes checking the foetal heart rate as
prescribed by the guidelines would have been
implemented. Had
monitoring been implemented, the foetal distress would have been
timeously detected and the necessary interventions
implemented to
prevent the injury and or brain damage. It is my respectful view that
the actions or inaction of the hospital staff
in its care of the
plaintiff and its baby on the day was the direct cause of the brain
injury sustained by S resulting in cerebral
palsy.
[75]
In the circumstances, I make the following order:
1.
The
defendant is liable for 100% of the damages of the plaintiff as
proven or agreed in her representative capacity for and on behalf
of
her minor child, S, resulting from the negligence of the staff at the
Yusuf Dadoo Hospital resulting in the minor child suffering
from
cerebral palsy;
2.
The
defendant shall pay the costs of suit, including such costs to
include:
a)
The
costs attendant upon obtaining the medical legal reports, addendums
and joint minutes of the following experts:
I.
Professor
Andronikou;
II.
Dr
Chimusoro;
III.
Dr
Sekawabe;
IV.
Lesley
fletcher;
V.
Dr
Kara.
b)
The
qualifying, attendance, preparation, travelling fees, where
applicable, of the aforesaid witnesses.
c)
The
costs consequent upon the employment of counsel.
________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 15
th
– 25
th
April 2019
7
th
– 22
nd
October 2019
Date
of Judgment: 28
th
January 2020
For
the Plaintiff: Adv. C McKelvey
Instructed
by: Nonxuba Inc
Tel:
011 234 1194
For
the Defendant: Adv. W Sibuyi SC
Adv.
K Siqongana
Instructed
by: State Attorney
Tel:
011 330 7778