About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 39
|
|
Hoffmann v MEC for Department of Health, Eastern Cape and Another (1037/2007) [2011] ZAECPEHC 39 (9 September 2011)
31
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 1037/2007
Date heard: 23-26 March 2010 and
2-3 March 2011
Date delivered: 9 September 2011
IN THE MATTER BETWEEN:
OLENE HOFFMANN
…..........................................................................................
PLAINTIFF
vs
MEMBER OF THE
EXECUTIVE COUNCIL
DEPARMENT OF HEALTH,
EASTERN CAPE
…..........................
FIRST
DEFENDANT
MEDICAL SUPERINDENT,
DORA NGINZA
HOSPITAL, PORT
ELIZABETH
….............................................
SECOND
DEFENDANT
JUDGMENT
TSHIKI J:
A) INTRODUCTION
[1] In this case the
plaintiff herein is suing the defendants for medical negligence which
is alleged to have resulted in plaintiff
suffering from emotional
shock and trauma coupled with psychological dysfunction in the form
of post traumatic stress and depression.
As a consequence of
suffering from emotional psychological dysfunction aforesaid
plaintiff alleges that she has suffered both special
and general
damages all amounting to a sum of R333 080,00 for which the
defendants are held liable by the plaintiff jointly
and severally
together with costs of suit.
[2] Defendants have
denied liability to plaintiff as well as all the material allegations
by the plaintiff but have admitted that
there is a legal duty on the
medical personnel and medical practitioners employed by the
defendants at Dora Nginza hospital to
take reasonable care to:
[2.1] attempt to, where
possible, keep babies born at the hospital alive; and
[2.2] to give medical
assistance and care to mothers admitted to the hospital whilst giving
birth to their children.
B) EVIDENCE
[3] At the inception of
the trial of this case and at the request of both parties, I made an
order that in terms of rule 33 (4)
the issues of negligence and
quantum were separated and that the case should proceed on the
negligence issue only.
[4] During his address in
terms of rule 39 (5) Mr Mouton for the plaintiff handed up by consent
a bundle of documents marked as
exhibit A as well as another which
was marked as exhibit B. Exhibit A contains,
inter alia
, a
record of the plaintiff while she attended the West End clinic, as
well as a letter dated 15
th
July 2004 addressed to Dora
Nginza hospital which is marked exhibit A2. This letter was handed to
Dora Nginza hospital on 16
th
July 2004 when the plaintiff
was being observed at that hospital from the 16
th
July to
23
rd
July 2004 a period of seven days. It is, therefore,
no longer disputed that for this period reflected in exhibit A the
plaintiff
was admitted at Dora Nginza hospital as a patient. The
other portion of exhibit A contains the record of admission of the
plaintiff
at Dora Nginza from the 11
th
September 2004 and
it shows that she was admitted at 21h30.
[5] In his comment in
response to the plaintiff’s address by Mr Mouton, Mr Pretorius
for the defendants put in issue and therefore
denied that the
plaintiff was diabetic and, if she was diabetic this was not to the
knowledge of the defendants or their employees
at the time plaintiff
was admitted at Dora Nginza hospital on 16
th
July 2004. Mr
Pretorius further submitted as exhibit C a document from Dora Nginza
laboratory containing information about the
plaintiff. Mr Mouton
consented to the receipt by the Court of exhibit C.
B) EVIDENCE FOR PLAINTIFF
[6] The plaintiff then
called
viva voce
evidence of Nova Veronica Monteith. She is
employed by Nelson Mandela Metropolitan Municipality at the primary
health care unit
as an assistant director. She testified that she has
access to clinic records in Bundle A and that the West End clinic is
under
her management. She then explained and interpreted the
recordings and contents of exhibit A2.
[7] From the evidence of
this witness, it appears from the contents of exhibit A2 that there
is no recording which shows that the
plaintiff is a diabetic or that
she was a diabetic when she was examined at West End clinic. It is
only recorded that she comes
from a family with history of diabetics
in particular the plaintiff’s mother. There is no record of
illness on the part of
the plaintiff. It is, however, recorded that
plaintiff’s last birth was by way of caesarean section. The
witness testified
further that she is a qualified registered
professional nurse with midwifery.
[8] The evidence of this
witness was mainly to read the contents of exhibit A pertaining to
the plaintiff’s visits at West
End clinic on 15
th
July 2004. There is nothing further to comment on her evidence which
honestly was not even disputed during cross-examination.
[9] The next witness
called was Elizabeth Magdalene van Brises. She knows the plaintiff
with whom they attend the same church. She
was in company of the
plaintiff when the latter was admitted at Dora Nginza hospital on
11
th
September 2004 and the plaintiff’s husband and
her husband were also in their company when plaintiff was taken to
hospital
on 11
th
September 2004. They arrived at about
18h00-18h45. On arrival they proceeded to the labour section.
However, their husbands preferred
to take seats on the hospital
benches and did not enter the labour unit. On arrival at the
reception section plaintiff handed in
her hospital card after which
they were advised to take seats on the bench. She describes the
hospital card as a small blue card
which was submitted to a
receptionist who is a nurse. Apparently even at that stage, the
plaintiff was experiencing what the witness
refer to as “terrible
pain” to the extent that one of the nurses who apparently had
attended to her had to return to
plaintiff and informed her to go lie
on the bed. In fact the nurse took her to the bed which was at the
labour ward just at the
back of the receptionist. According to the
witness there are beds at the back of the receptionist area which are
meant for women
in labour to lie on so as to be observed until they
are ready to deliver. A nurse attended to her in privacy as it was
the only
two of them the curtain had been pulled so that no other
person could see what was happening. She could not see what was
happening
behind the curtain but was able to see the nurse going away
and came back with a “heart machine” for the baby.
[10] She testified
further that plaintiff was instructed by the nurse to monitor the
heart beat of the foetus and if it is slow
she would have to pat
herself on her side and then lie on her other side (turn around). At
that stage I ruled her evidence inadmissible
because she could not
give evidence on the interpretation of how the heart machine
functions. The witness further explained how
the movements of the
lines of the machine were progressing and that she would also hear a
“peep peep sound”. She says
all the time she was always
with the plaintiff. When plaintiff would pat or hit herself on her
side the witness would then proceed
to call the nurse. She continued
doing this but the last time she went to call the nurse was about
23h00. According to her the
machine would make a “toet toet”
sound and would show a horizontal line. She testified that at some
stage she swore
at the nurse and scolded her telling her that
plaintiff should not have to undergo the labour process because she
had to give birth
by caesarean section procedure. When she mentioned
this the nurse reacted immediately and came to examine the plaintiff
and also
checked on the heart monitor machine. She confirmed that it
was not the first time for the nurse to come and observe the
plaintiff.
The nurse told them she would phone and call the doctor.
The doctor came about an hour later.
[11] After the doctor had
examined the plaintiff he instructed the nurse to prepare the theatre
for the plaintiff’s caesarean
operation. The time then was
about 01h00 on 12
th
September 2004. The recordings in
exhibit A show that the plaintiff was operated at about 01h12 on the
12
th
September 2004. The record shows that the infant was
stillborn when it was delivered.
[12] When cross-examined
by Mr Pretorius the witness conceded that she could not be precise as
to the nature of the sound that was
made by the machine, whether it
was “peep peep” or “boem boem” in view of the
time lapse since 2004. She
insisted, however, that there was a sound
made by the machine.
[13] It also transpired
during cross-examination that the witness was making a mere guess
when she testified that it was about 17h30-18h00
when they went to
the hospital with the plaintiff. It also became clear during
cross-examination that the plaintiff was not instructed
by the nurse
to beat herself but to simply tap herself on the side of her body.
The witness insisted that they did not arrive at
the hospital at
about 21h30 as it is recorded in exhibit A, but earlier than 21h30.
She insisted though that the plaintiff was
taken to the theatre at
about 01h00 on 12
th
September 2004. She conceded further
that she does not have medical training or knowledge.
[14] The witness further
conceded that it was at about 21h30 when the foetus was in distress a
condition commonly referred to as
foetal distress.
[15] The plaintiff then
testified. She told the Court she is 32 years old and has three
children, the eldest of which is a girl
14 years old. All her
children were born by caesarean section. On 15
th
July 2004
she attended to West End clinic in Port Elizabeth. Her sugar was
tested and the finding was that her sugar level was
high as well as
her blood pressure. She was advised she would be referred to Dora
Nginza hospital because of her diabetes sickness.
On Friday the 16
th
July 2004, she was referred to Dora Nginza hospital by West End
clinic. After the doctor had examined her she was admitted for
observation for one week. On the doctor’s request she revealed
that her first child was born by caesarean operation. At that
stage
she was pregnant for +/- 7 months. On the date of her discharge she
was advised that when the child was due to be born she
would have to
go to the hospital as she is a risk patient. On discharge she was
also given insulin to manage her sugar diabetes.
She was to inject
herself twice daily.
[16] On 11
th
September 2004, she was taken to Dora Nginza hospital for the
delivery of the child in question. She experienced pains for the
first time at about 16h00. By pains she refers to stomach cramps. A
phone call to the last witness Mrs Van Brises was made at about
18h00. She recalls the time because her husband was watching the
television news at that time. She was then taken to Dora Nginza
hospital in Port Elizabeth. Mrs van Brises told the person at
reception that the plaintiff was experiencing labour pains and that
she should be given a bed on which to lie. She was then checked by a
nurse as to her condition and how far she was towards birth.
[17] I must say that this
conduct of enquiring how far the plaintiff was from giving birth is
inconsistent with the procedure followed
when a pregnant woman is to
give birth by way of caesarean section. This is so because caesarean
birth does not depend on stomach
cramps but at least on the readiness
of the child to be born. Her evidence goes on to say she was examined
and informed by the
nursing sister that she was not advanced enough
to give birth and would have to wait a little while. It is at that
stage that she
told the sister that she would have to give birth by
caesarean birth. The evidence quoted verbatim reads:
“
Then she
said to me I shall have to wait a little while because I am still far
from giving birth, they are under staffed, but I
shall have to wait.”
[18] At that stage she
was still on the bed. The nursing sister then brought a monitor to
test the heart of the child. The sister
nurse explained to her how
she would have to check the monitor that was connected to and placed
on her body. She was informed that
once the graph of the monitor was
below a certain level she would have to tap herself on her left side
of the body or call the
nurse. According to the witness she was
informed that the reason for doing so is that when the graph falls
below the line it would
be an indication that the baby was getting
tired and was struggling to get oxygen. The graph did eventually drop
and many a times
it went below the line and it was on those occasions
that she had to pat herself. According to her the graph went below
the line
for the first time an hour after it was connected to her.
This was about more or less 21h00. The graph did fall below the line
again after half an hour since it had been put back to normality.
Time and again the graph went below the line at intervals of between
15-20 minutes. She again called the nursing sister who came and
informed her to endure because the theatre was full and that there
is
a doctor who would come to attend to her. She was very much concerned
and worried about the line that had dropped below the
normal level.
[19] The witness then
drew a line on a plain paper to show how the graph looked like as it
was shown by the machine. This drawing
was received by consent as
exhibit D. The doctor did not come within the reasonably expected
time and the nurse had to call the
doctor again. There was another
period of waiting. The doctor came after another hour or more. The
doctor examined her and prepared
her for the theatre. She was then
taken to the theatre not long after she had been prepared. The doctor
told her that they had
to conduct an emergency caesarean operation
because the baby in
utero
was undergoing a foetal heart
distress and had to be removed from the hostile environment.
[20] She was then
operated and gave birth to a big still born baby.
[21] During
cross-examination the plaintiff revealed that she has a machine she
uses to check or test her sugar diabetes which she
received in 2003.
The plaintiff informed the Court that her medical doctor is Dr April
and that her specialist is Dr Behari and
has been so since 2003. The
plaintiff disputed the information contained in the notes from West
End clinic. She insisted that she
informed the medical staff and
nurses at the clinic that she was diabetic. She also informed them
that she comes from a diabetic
family. The plaintiff further
testified that she uses and injects herself with insulin on a daily
basis and also has a machine
she uses to test her sugar levels. She
was given that machine for the first time in 2003 and has been using
it for testing since
then and on a daily basis. The machine reading
after testing would always be between 4 and 6 and had not been higher
than 6. She
conceded however, that on about two occasions it exceeded
6 and on rare occasions it would read less than 4. Plaintiff refuted
the allegation by Mr Pretorius that when she was at West End clinic
her blood pressure was not too high. She testified that the
nursing
sister who attended to her specifically told her that her “blood
pressure was too high”. She was adamant that
she had told the
nursing sister of the hospital that she also suffers from diabetes.
She, however, could not explain why in the
referral letter as well as
in exhibit A there is no record to show abnormality in her diabetes
and high blood pressure. Mr Pretorius
intimated to the witness that
her evidence does not confirm the contents of the recording in
exhibit A. The first witness had in
fact indicated that she was not
responsible for the recording of the contents and therefore cannot
comment about them. She could
only read the recordings for the
record. The contents of exhibit A having been disputed by the
plaintiff who gave
viva voce
evidence the documents become
less valuable in weight compared to the evidence of the plaintiff.
This is so because the person
who made the recordings was never
called to confirm what she recorded or to confirm that what she
recorded is what she was told
by the plaintiff. The denial of the
contents of the documents opens the document’s contents to
speculation as to what the
plaintiff told the staff and/or nurses at
West End clinic. Her evidence on what she told the nurses should be
preferred because
it has been tested as against the contents of the
document which have not been confirmed.
[22] The next witness
called by the plaintiff was Mr Daniel J Van Brises. His evidence is
basically to confirm the evidence of his
wife the second witness
Elizabeth van Brises. He testified that they arrived at Dora Nginza
hospital before 19h00. He and the plaintiff’s
husband left
their wives in the labour ward and they both proceeded to rest in the
waiting room. He could not recall how much time
they spent waiting
but became bored of waiting at about 20h45. He then went to the
labour ward to establish what progress had been
made so far. He could
not be able to see the plaintiff and his wife and decided to go back
to the waiting room. Later his wife
came to report that plaintiff had
been taken to the theatre for an operation. On hearing these news he
and plaintiff’s husband
went home. During cross-examination he
was referred to the recordings in exhibit A but said he could not
answer on behalf of the
person who made the recording. He reiterated
that when they arrived in the hospital it was beginning to be dark
and according to
him in terms of time it was just before 19h00.
[23] Dr Pierre F.M. Du
Toit was then called by the plaintiff. He is a gynaecologist. He
testified that he was present in court when
evidence was led by
previous witnesses who testified before him. He has also studied the
available medical records. He confirmed
that according to the
recording in exhibit A on page 16 plaintiff’s first visit at
West End clinic was on 15
th
July 2004. He confirmed that
the records show a family history of diabetes and hypertension on the
plaintiff’s mother’s
side and that plaintiff has had
previous caesarean section birth. According to the witness the
previous caesarean section is an
additional risk in the plaintiff’s
pregnancy. This is in addition to the hypertension and diabetes which
are also additional
risks to both the mother and the foetus. He
confirmed that given those considerations it would be fair to regard
the plaintiff
as a high risk patient. According to him her sugar
level of 9.2 millimetres on the plaintiff in an indication of
diabetes mellitus.
He confirmed that the normal sugar levels on the
part of plaintiff on 30
th
August 2004 could have resulted
from plaintiff’s treatment with insulin because insulin causes
a drop in high blood sugar
levels. He also regarded as elevated the
blood pressure reading of 138 over 107 and that it was high blood
pressure which was abnormal
for a pregnant woman.
[24] Dr Du Toit further
testified that in the case of history of previous caesarean birth it
would be a prudent thing to have any
subsequent birth by way of an
elective caesarean section. An elective caesarean birth should take
place a week or two before the
expected date of delivery ie before
the woman goes into labour. He opined that the reason why the
plaintiff was instructed by Dora
Nginza hospital to go straight to
the hospital if she goes to labour and not to the clinic is based on
the risk with a possible
caesarean birth which the clinic could not
do. The instruction was in fact a realization by the hospital that
this is a risk which
has to be attended to by the hospital. The
witness went on to suggest that if such a person goes into labour
with a previous caesarean
section, there is a risk of spontaneous
rupture of the uterus in labour and an ordinary clinic could not deal
with such complication.
[25] According to Dr Du
Toit, in the case of a baby (in
utero
) whose mother is
suffering from diabetes there is a possibility of foetal distress
occurring and it is for those reasons that pregnancy
must be
terminated and that caesarean birth be performed on the mother. The
witness testified that the fact that plaintiff who
was discharged
from Dora Nginza hospital on 23
rd
July 2004 was given
insulin for treatment of her diabetes indicates that plaintiff was
treated with insulin while she was in the
hospital. In any event
plaintiff has already confirmed that at Dora Nginza hospital she was
treated with insulin and therefore
the hospital was aware or at least
could have been reasonably been expected to be aware of her diabetic
condition.
[26] It should therefore
be expected that when the plaintiff arrived at the same hospital on
11
th
September 2004 for delivery of the baby she would
have to be sent to the labour ward and be instructed not to eat or
drink due
to her pending caesarean section birth. Given the history
we have of the plaintiff Dr Du Toit emphasised that in the
circumstances,
plaintiff was 40 weeks pregnant, with a history of a
previous caesarean section birth, with a raised blood pressure and
with a
history of diabetes. Therefore, plaintiff was a high risk and
the correct procedure in the circumstances would have to remove the
baby from the hostile environment as soon as possible by caesarean
birth. This would also have been compounded by the drop in the
heart
rate of the baby in
utero
which made the plaintiff’s
case very serious and urgent. According to Dr Du Toit this would be
so, irrespective of the cause
or causes of the foetal distress. He
added that the foetal distress was a totally new emergency which
could cause the unborn child
to suffer irreparable brain damage or
that it may even die in
utero
.
[27] During
cross-examination by Mr Pretorius, Dr Du Toit conceded that it would
be unreasonable for the nurse to record something
incorrect or not to
record at all when that person would have recorded what the patient
tells him or her. He was referred to the
records contained in exhibit
A wherein none of what the plaintiff told the nurse at West End
clinic was recorded. In fact what
was recorded is the direct opposite
of what she had told the nurses at the clinic. It is recorded that
her diabetes and her blood
pressure was normal instead of being
abnormal as she told the officials that she was suffering from
diabetes and high blood pressure.
[28] During
cross-examination by Mr Pretorius Dr Du Toit conceded ,
inter
alia
, that it would be dangerous and unreasonable to get a lay
person who is a patient to read the graph on something they do not
really
understand. I agree this is correct and that the evidence of
both Mrs Van Brises and that of the plaintiff cannot be relied upon
by the Court when they testified about how the heart machines worked.
I refer to the machines which were given to the plaintiff
by the
nurse to monitor the heart of the unborn child. To place reliance on
the lay patient and her friend would amount to relying
on the
evidence of a lay person on a matter which requires the opinion of a
professional and qualified specialist. The evidence
of Mrs Van Brises
and that of the plaintiff about how the heart machine functions will
be disregarded as irrelevant. Dr Du Toit
conceded that if one has
regard to the West End clinic notes there would have been no
indication that the plaintiff was diabetic,
and that the medical
personnel at Dora Nginza hospital would not have been aware either.
The doctor conceded further that on all
visits by the plaintiff at
the clinic the notes show that her blood pressure levels were also at
acceptable levels. This also holds
true even in respect of blood
sugar and blood pressure which were at acceptable levels on the
plaintiff’s third visit at
the clinic. The doctor further
conceded that the plaintiff had been under observation at the
hospital and in all probabilities
it was found that there was nothing
materially wrong with her and she was discharged. He conceded further
that in respect of the
diagnosis of blood pressure being alarmingly
high on 6
th
September 2004 they should then have referred
the plaintiff immediately to the doctor at Dora Nginza hospital and
that their failure
to do so amounts to negligence as she should have
been referred on the same day. He conceded further that after the
time of confinement
the procedure is not over as the doctor would
also have to close up the uterus and abdomen and that takes some time
about fifteen
to twenty minutes. Thereafter a theatre will also have
to be prepared for the next patient a procedure which takes some time
unless
there is more than one theatre. In this regard on this day
there was only one theatre for delivery at this hospital. Dr Du Toit
conceded that this day there was only one theatre available at the
maternity section at that time though on other occasions there
would
be three theatres in that unit. The doctor further conceded that at
night time Dora Nginza hospital is a very busy time with
babies being
delivered normally and through caesarean section. That the hospital
was busy was confirmed by the plaintiff herself.
[29] It is Dr Du Toit’s
evidence that Dora Nginza maternity unit is a very busy place and
frequently they are under staffed.
According to the doctor the mere
fact that the heart beat drops to 120 or below does not necessarily
indicate foetal distress.
This is so because it could have been
merely due to a contraction and it could have returned back to normal
very quickly. He testified
that foetal distress does not just happen.
It gradually builds up and it must have been going for some time and
that if the baby
in issue had been removed from that environment it
does not matter what the cause of foetal distress was, the baby would
have had
a chance of survival.
[30] On this note
plaintiff closed its case a step which was followed by an application
for absolution from the instance. I refused
the application per my
judgment delivered on 3
rd
June 2010.
C) EVIDENCE FOR
DEFENDANTS
[31] Defendants called
two witnesses in their defence. They are Dr Aydin Vebhi and Dr Irvin
Burger Berkowitz.
[32] Dr Aydin Vebhi
testified that during 2009 he made a thorough search to locate the
records of the plaintiff in this case but
in vain. He was unable to
find the official records of the plaintiff. Although a folder was
subsequently found it did not have
the relevant documents.
[33] He testified further
that according to what he could see the plaintiff was discharged by
Dora Nginza hospital on the 23
rd
July 2004 and was
instructed to go back to the clinic. He testified that if the patient
is diagnosed as diabetic for her treatment
as well as the management
of the diabetes he or she would have to be referred to Dora Nginza
hospital.
[34] What the witness is
testifying on this point is not what happened to the plaintiff but
what should have been done if the patient
was diagnosed with
diabetes. It also seems to me that no one knows where the actual
records of the plaintiff are and those responsible
would speculate as
to what treatment was received by plaintiff. In my view, to say the
plaintiff would have been referred to the
hospital, if diabetic,
cannot assist the defendant’s case especially in view of the
careless manner in which they have dealt
with the plaintiff’s
records. Judging by their conduct they could also have failed to
refer a diabetic case to hospital.
Indeed their conduct aforesaid
makes one to conclude that they are capable of doing so.
[35] According to Dr
Vebhi, when a patient reports at the hospital, after he or she has
been observed at West End clinic, she will
not necessarily carry or
bring all the records from the clinic. All his or her visits and some
test results, if any, would be recorded
on his or her card, and if
necessary in the additional referral letter.
[36] The witness further
commented on the ability of the lay patient to interpret the signs
displayed by the machine that was placed
on the plaintiff’s
stomach after she was admitted for labour. He mentioned that there
are two types of machines the ECG whose
purpose is to produce and
trace a patient’s heart in terms of the functionality of its
rate etc. The CTG machine is specifically
designed to monitor the
foetal heart. The latter works different from the former and deals
with ultra sound effects. Accordingly,
the machine that was described
by Mrs Van Brises is an ECG machine not for the monitoring of the
foetal heart and was not the CTG
which was specifically for
monitoring the foetal heart beat. The ECG machine would have been
used to test the patient’s (plaintiff’s)
heart beat. He
added that at the stage when plaintiff was admitted for labour at the
hospital the ECG machine was not used in the
labour ward and that
even at the time he testified it is not standard practice to use it
in the labour ward.
[37] When questioned by
Mr Mouton the witness confirmed that a patient would receive a green
card in which all the information,
the family history, the illness eg
diabetes and high blood pressure and tests results about that patient
would be reflected. If
the information on the green card indicates
high risk, Dora Nginza hospital would be aware of that information.
He conceded that
any information reflected in the green card about
some illness would be confirmed by the hospital and that would then
give the
hospital a clue which would cause them to do confirming
tests. He conceded that the information would then raise alarm bells
so
as the hospital staff and doctors to be on their toes. He conceded
further that in respect of exhibit B they would have the same
document which is a second entry that refers to the plaintiff’s
visit and observation at the hospital on 16
th
July 2004.
[38] Dr Irvan Burger
Berkowitz testified that he is a specialist gynaecologist having
qualified as such in 1971. He is employed
at Dora Nginza hospital in
the Department of gynaecology as a senior specialist.
[39] He compiled a report
about the tragic incident involving the plaintiff. He used the
theatre register which has information
compiled in exhibit A. Exhibit
A, which is a copy of the theatre register is the only document
available about the plaintiff. According
to him 80% of the diagnosis
is made from the history of the patient and the doctor will rely on
that history to make the diagnosis.
[40] In his experience in
the medical profession, nursing sisters make notes accordingly. He
then confirmed the information reflected
in exhibit A and its
annexures which has been referred to earlier in these proceedings.
[41] His evidence was
substantially similar to that of Dr Vebhi. However, during
cross-examination by Mr Mouton, he made concessions
which are
damaging to the defendant’s case. He conceded that where a
patient has brought to the hospital a report with information
from a
clinic that her family has a history of diabetics and that she had a
previous caesarean birth due to a pregnancy induced
hypertension,
that information will alert a reasonable hospital that such a patient
is a high risk. He conceded further that it
is reasonably correct
that the plaintiff could have reported to the nurses at West End
clinic about her history of suffering from
diabetics. And that the
results which showed that she was normal in so far as sugar levels
are concerned could have been as a result
of her treatment with
insulin which she was using at the time. He agreed that with the
report of a previous caesarean birth a reasonable
doctor or nurse
should be alerted so as to take any preventative measures for a safe
delivery. He conceded further that foetal
distress is an emergency
especially in a person who has previously given birth by caesarean
section and that such a situation should
alert the hospital staff and
doctors to proceed with the caesarean birth as soon as possible. In
addition to the above information,
the witness conceded that Dora
Nginza hospital having been aware of the diabetic illness of the
patient or that it should have
been aware of that illness, and that
she suffers from hypertension, as well as history of previous
caesarean birth, the nurses
and/or doctors should have recommended an
elective caesarean birth one or two weeks before he normal birth
date. He conceded further
that having regard to the time when the
operation was made to the plaintiff and the time when the doctor was
called for a caesarean
operation on the patient, as well as the time
when the operation was done it was unacceptably and unreasonably late
for the hospital
to take such an action at that very late stage. He
conceded further that in the case of the plaintiff with the signs of
a foetal
distress the latest at about 21h30, at the time when the
theatre was ready and not functioning, it was unreasonable for the
doctor
to be called only at about 23h30. A further concession was
that there is no evidence that the foetal distress of the plaintiff’s
unborn baby was sudden.
[42] Mr Pretorius, in his
questions on re-examination, dealt with the two witnesses’ (Van
Brises and the plaintiff) inability
to interpret the signs which were
reflected in or by the machine which was on plaintiff’s body. I
have already emphasised
that the Court cannot rely on the two
witnesses interpretation of the signs made by the machine. However, I
cannot ignore their
evidence or the evidence of a witness who
testifies that she responded to an instruction by the nursing sister
as to what to do
when the machine’s level went below a certain
line indicated by the nurse. This, in my view, does not amount to the
interpretation
of the machine but simply compliance with the
instruction given to her by the nurse. It is clear that when the
nurse gave her such
instructions she was aware of the dangers if the
situation is not attended to immediately once the machine levels go
below that
line. This is so especially in this case where the
plaintiff was told to either pat herself or call the nurse. She had
on many,
if not all occasions, resorted to calling the nurse. The
witness conceded though that even a contraction would cause the heart
beat to move below the line.
[43] On this note the
defendants’ case was closed.
E) ISSUES
[44] The issue herein is
whether the defendant’s employees failed to observe the legal
duty they owed to the plaintiff in
that they failed to ensure that:
[44.1] The plaintiff’s
baby was born alive.
[44.2] The plaintiff’s
baby remained alive after birth.
[44.3] That sufficient
medical personnel and medical facilities were placed at the disposal
of the plaintiff and her baby for purposes
of the delivery process as
well as any subsequent aftercare in order to ensure that the baby was
born alive and thereafter remained
alive.
[44.4] In the event of
complication arising during the delivery process or subsequent
aftercare, that such medical officials including
the staff assisting
thereto, possessed the necessary training and skill to attend thereto
in a proper, professional and satisfactory
manner in order to ensure
that the plaintiff’s baby was born alive and thereafter
remained alive.
[44.5] The necessary
steps were taken or tests done in order to monitor the condition or
health of the plaintiff’s baby before
and after birth so as to
ensure that the baby was born alive and thereafter remained alive.
[44.6] The generally
accepted procedures were timeously and/or properly taken during the
delivery and or any emergency arising therefrom
so as to ensure that
the baby was born alive and thereafter remained alive.
[45] The critical
questions for decision herein in assessing whether the defendants
acted negligently in treating or failing to
treat the plaintiff
should be decided based on the following issues:
[45.1] Whether the
plaintiff was a high risk patient, and if so:
[45.1.1] At what stage
did defendants become aware of such eventuality;
[45.1.2] At what stage
did the foetal distress develop; and
[45.1.3] Whether the
proper care was administered to the plaintiff in the light of the
foetal distress and her high risk status
and if so;
[45.3.1] Whether the
defendants acted within a reasonable time to prevent the death of the
child. And in doing so:
[45.3.1.1] Whether the
defendants employed the adequate measures in their attempt to prevent
the death of the child thus ensuring
that the plaintiff’s child
was born alive and/or remained alive after birth.
F) EVALUATION OF THE
EVIDENCE
[46] The evidence of the
plaintiff’s witnesses including that of the plaintiff cannot be
faulted. I have no reason not to
accept their evidence. Although Mrs
Van Brises was so confident in her evidence to the extent that she
was even prepared to convince
the Court, mistaken though, that she
knew a lot about how the two heart machines worked, her evidence was
not shown to be false.
This is more so that her evidence was, to a
large extent, confirmed by the evidence of the plaintiff and her
husband. This holds
true with the evidence of Dr Du Toit whose
analysis of the issues of expertise has assisted the Court to a great
extent.
[47] The defendant’s
evidence of the two doctors was also clear and straight forward. None
of them was discredited in any
manner whatsoever.
[48] I will, therefore,
decide the case on the basis that the evidence of the witnesses is
acceptable. This, however, is different
from the weight to be
attached to such evidence for the purposes of finding for either
party.
[49] I must, however,
make a comment on one issue about the evidence or lack thereof on why
was the plaintiff’s explanation
and notes in West End clinic
not recorded in accordance with what the plaintiff explained to the
nurses and other clinic staff.
It is also puzzling to note that some
of the records which contain the history of the plaintiff were found
to be missing in that
clinic. In any event i have no reason to
believe that plaintiff did not inform the staff, doctors and/or
nurses in the clinic about
her history in the manner she has
explained to this Court. She had no reason to tell a different story
when, as early as 2003,
she was already treated with insulin and that
she has had a previous caesarean section. It could be that the notes
recorded in
exhibit A were taken out of the blue because the
plaintiff’s file could not be found or that they were
deliberately falsified.
There is no other conclusion one can make in
the circumstances.
G) WAS DEFENDANT
NEGLIGENT?
[50] Mr Pretorius for the
defendants seems to put more emphasis on the fact that there are no
records available which show that
the plaintiff was suffering from
diabetes at the time she was at West End clinic. And, therefore, the
hospital staff at Dora Nginza
hospital could never have been aware of
her diabetic condition when she went to give birth on the 11
th
September 2004. In my view this is not the consideration in this
case.
[51] In view of the
admission by the defendants in paragraph 5 of the plea that a legal
duty exists on their medical personnel and
medical practitioners
employed by defendants at Dora Nginza hospital to take reasonable
care to:
[51.1] attempt to, where
possible, keep babies from at the hospital alive;
[51.2] to give medical
assistance and care to mothers admitted to the hospital whilst giving
birth to their children;
I need not deal,
specifically as a separate heading, with the issue of wrongfulness. I
will deal with it when determining the issue
of negligence.
[52] Proof of defendant’s
negligence herein does not necessarily depend on what took place at
West End clinic. The conduct
of the staff and/or medical personnel at
Dora Nginza hospital should be judged on its own without having
regard to what happened
at West End clinic on the 15
th
July 2004.
[53] West End clinic
subsequently referred plaintiff to Dora Nginza hospital for
observation and was admitted from 16
th
July 2004 and was
discharged on 23
rd
July 2004. While undergoing observation
at Dora Nginza hospital she was informed by a doctor who attended to
her that she would
have to be detained in hospital for the purpose of
observing her diabetes as well as her blood pressure. She was then
observed
in that hospital for a week. Whilst in hospital they would
take her blood pressure and diabetes tests twice daily. She would
receive
insulin for sugar and some tablets for blood pressure. The
doctor further told plaintiff that she would not be able to give
birth
in the natural way and would have to give birth through
caesarean operation. She was further informed by the nurse that for
the
purposes of giving birth she would have to come straight to
hospital as she was a high risk.
[54] Again on admission
at the hospital on the 11
th
September 2004, plaintiff
informed the hospital staff and the nurses who attended to her that
she was a diabetic case and that
she would have to give birth by
caesarean section and not naturally. When she said so the nursing
sister advised plaintiff that
she would have to wait a little while
because she was still far from giving birth and that they were
under-staffed and therefore
she would have to wait. This evidence was
left unchallenged by the defendants. In the absence of anything to
the contrary, I have
to accept the uncontested evidence.
[55] There is undisputed
evidence that at about 21h00 when the graph of the machine in her
chest fell below the line plaintiff called
the nursing sister who
informed her to just endure because the theatre was full but there
was a doctor who would come to attend
to her. The doctor only came
very late and prepared her for the theatre. When the doctor
eventually arrived he informed the plaintiff
that she was to be
operated. There is also undisputed evidence that at about 21h30 the
theatre was free and not occupied. The doctor
informed her that they
would have to conduct an emergency caesarean operation because the
baby was undergoing foetal distress.
The records show that the
operation was conducted at about 01h12 on the 12
th
September 2004. The doctor tried to resuscitate the baby but without
success. It is clear that when the doctor attempted the resuscitation
of the child the latter was still alive and had proper action been
taken earlier the life of the baby could have been saved. The
logical
conclusion is that the baby was still alive until about the time its
mother was operated at about 01h12. Therefore, from
about 21h30 when
the plaintiff’s condition became serious, in my view, up to
until the birth of the child nothing was done
by the hospital
employees including the nurses and doctors. Bear in mind that at that
time the theatre room was not in use. In
any event, the doctor who
attended to the plaintiff was only called by the nurse at about 23h30
but only took in excess of an hour
to come to plaintiff’s
assistance. Were the actions of the defendants’ employees
reasonable in the circumstances?
[56] It follows,
therefore, that in view of the defendant’s admission of the
legal duty it has towards plaintiff once that
legal duty is breached
and the plaintiff consequently suffers damages the actions of the
defendants are in law regarded as wrongful.
However, the enquiry does
not end there the plaintiff has to also prove negligence on the part
of the defendants.
[57] It is now well
established that wrongfulness is a requirement for liability under
the modern Aquilian action.
Negligent
conduct giving rise to loss, unless also wrongful, is therefore not
actionable
1
.
[58] Where the element of
wrongfulness gains importance is in relation to liability for
omissions, as in this case, and pure economic
loss
2
.
In
Boerdery
BK v Transnet
3
and at 498-499 para 12
H-I and 499 A
Scott
JA held as follows:
“
...The
inquiry as to wrongfulness will then involve a determination of the
existence or otherwise of a legal duty owed by the defendant
to the
plaintiff to act without negligence: in other words to avoid
negligently causing the plaintiff harm. This will be a matter
for
judicial judgment involving criteria of reasonableness, policy and,
where appropriate, constitutional norms. If a legal duty
is found to
have existed, the next enquiry will be whether the defendant was
negligent. The test to be applied will be that formulated
in
Kruger
v Coetzee
,
involving as it does, first, a determination of the issue of
forseeability and, second, a comparison between what steps a
reasonable
person would have taken and what steps if any, the
defendant actually took
4
.”
[59] While conceptually
the inquiry as to wrongfulness might be anterior to the enquiry of
negligence
5
,
it is equally so that without negligence the issue of wrongfulness
does not arise,
for
conduct will not be wrongful if there is no negligence
6
.
[60] During
cross-examination by Mr Mouton, Dr Vebhi made the following
concessions:
[60.1] That the green
card received by the plaintiff would have contained,
inter
alia
,
information regarding her family history of hypertension and
diabetes, and that she had undergone previous caesarean section.
Should this information suggest that the plaintiff is a high risk
patient, Dora Nginza hospital would have been made aware of this
fact
by means of such card.
[60.2] That based on the
plaintiff’s family history of hypertension and diabetes as well
as the fact that she had had a previous
caesarean section, alarm
bells should have gone off.
[60.3] And that the
plaintiff’s pressure readings obtained on 6
th
September 2004, were, on
their own, sufficient to classify the plaintiff as a high risk
patient.
[61] Dr Du Toit’s
evidence is that it was on its own negligence on the part of the Dora
Nginza hospital not to terminate the
plaintiff’s pregnancy at
38-39 weeks. Plaintiff was specifically asked how she gave birth to
her other children and when
she indicated that it was by caesarean
section she was informed that her birth for the child in
utero
would be by caesar hence
she was even advised to proceed straight to the hospital instead of
the clinic once she feels she is due
to deliver. There is no evidence
from the defendants to gainsay this evidence and it was not even
disputed during cross-examination
of the plaintiff’s evidence
and during the evidence of the other witnesses for the plaintiff.
[62] Furthermore, there
is uncontested evidence that plaintiff was admitted at Dora Nginza
hospital for observation and to ascertain
the reason for her diabetes
and to monitor the high blood pressure. This evidence flies in the
face of the notes made or recorded
on behalf of the plaintiff
(exhibit A) that there was no record that she has diabetes. Even if
there was no such evidence, on arrival
at the hospital on 11
th
September 2004, she apprised the nurses of her diabetic and
hypertension status. As I indicated above i have no reason to reject
the evidence of the plaintiff in this regard and if she had not
informed the staff at West End clinic about her diabetes they would
never have referred her to Dora Nginza hospital for the observation
concerning,
inter alia
, her diabetes.
[63] Not very long after
the plaintiff was admitted at the hospital on 11
th
September 2004, she reported her problem concerning the foetal
distress. This problem became serious at about 21h30 and, given
her
history, her diabetic illness and previous caesarean birth as well as
her hypertension, all of which should have been known
by the
hospital, the hospital staff should have attended to her as soon as
possible, and in my view, even before 22h30. There is
no valid reason
why she was not attended to with a view to remove the baby from the
hostile environment in which it was. Mrs Van
Brises, testified that
apart from the readings of the CTG machine, it was evident from her
and from any other person that there
were serious problems with the
mother and the baby, a condition which the nurses should have noticed
and acted accordingly with
a view to have the baby removed from the
hostile environment. This was never done. Reasons which had been
given by other people
other than the hospital personnel for not doing
so are mere speculation. None of the persons who were directly
involved in attending
to the plaintiff were called to refute her
evidence and that of her witnesses. I accept Dr Dut Toit’s
evidence that foetal
distress takes a couple of hours to start
showing clinical signs and does not come suddenly. This is confirmed
by the signs displayed
by the plaintiff herein. In the present case
plaintiff’s condition became alarmingly serious at about 21h00
but nothing was
done by the hospital staff despite the reports made
by the plaintiff to the nursing sister. This evidence was also not
disputed.
[64] In the present case
we are dealing here with a public hospital whose duty is,
inter
alia
,
to admit hundreds of people who come to the hospital to give birth
naturally and by caesarean section. From the accepted evidence
led
during the trial, I can take judicial notice that Dora Nginza
hospital is a busy hospital which admits patients with all kinds
of
illnesses without exception.
[65] The hospital has
employed professional nurses and qualified doctors who have to deal
with the patients who come to hospital
for delivery of babies and
other illnesses. Both nurses and doctors in their own right possess
or at least should reasonably be
expected to possess proficiency or
or expertise in regard to their areas of proficiency and/or
expertise.
[66] Thus in the case of
an expert such as a surgeon or gynaecologist, the test for negligence
in regard to the exercise of the
expert’s area of activity is
the test of the so called reasonable surgeon, reasonable
gynaecologist etcetera and the negligence
of an expert is sometimes
referred to as professional negligence
7
.
This applies equally to professional nurses whose conduct is also
judged according to their rank and experience. A nurse who has
progressed to the rank of a sister, in certain circumstances, will be
judged according to the reasonableness of a nursing sister
and not
that of a student nurse. The same holds true in the case of a general
practitioner who should exercise the same degree
of skill and care as
that of a reasonable medical practitioner and not that of a
reasonable specialist. He or she is in fact not
a specialist but a
medical practitioner. In
Lourens
v Oldwage
8
Mthiyane JA approved the
following statement
9
:
“
A specialist
is required to employ a higher degree of care and skill concerning
matters within the field of his speciality than
a general
practitioner. The objective ‘reasonable physician test’
is subjectified to the particular branch of medicine
to which the
specialist belongs. This means that it is expected from a specialist
in the treatment of his patients to act as a
reasonable specialist
would have done under the circumstances.”
[67] The question of
reasonableness and negligence is one for the Court to determine on
the basis of various and often conflicting
expert opinions presented.
As a rule that determination will not involve considerations of
credibility, but rather the examination
of the opinions and the
analysis of their essential reasoning, preparatory to the Court
reaching its own conclusion on the issue
raised
10
.
[68] In this case the
nursing sister who attended to the plaintiff does not appear to me to
have applied her mind to what the plaintiff
told her relating to her
previous caesarean birth. If she did she would never have told the
plaintiff to wait until she is ripe
for giving birth. Given her rank
and,
therefore,
her experience, she was
reasonably expected to have checked the history of the plaintiff’s
illness as contained in their records.
Her records would appear from
her file because she had been to the same hospital a few months
before she came on the 11
th
September 2004.
[69] Assuming that she
was busy then and did not apply her mind to what plaintiff told her,
at the time plaintiff was complaining
of pain especially when it was
clear that the unborn child was suffering from foetal distress the
alarm bells should have rung
in the mind of the sister nurse more so
that the plaintiff had already informed her of her illness in the
form of diabetes and
hypertension. She did nothing about that until
at about 23h30 when,
for
the first time, she phoned the doctor. In my view, the information
about the plaintiff, which she had already been told, was
sufficient
to cause her to prevent the harm that was obviously looming. The same
would apply to any other nurse in the circumstances.
At least about
21h30 or a little thereafter, the nurse would have called the doctor,
informed him of the plight of the plaintiff
and then prepare he
theatre for the operation of the plaintiff. Her failure to do so or
to take any preventive action amounts to
negligence.
[70] The doctor who was
called by the nurse at about 23h30 whether a specialist or not should
have become aware of the seriousness
of the illness. She only
responded when called for the second time. I will assume that she had
no reason not to come and attend
to the plaintiff, and in fairness to
the plaintiff, I must say so because there is no evidence from the
doctor to dispel that assumption.
Her failure to act at that stage
amounts to negligence.
[71] The last opportunity
for the hospital staff in defendants’ hospital, to operate the
plaintiff presented itself at about
23h30. Defendant’s
employees failed to do so as a result of which the plaintiff’s
baby died in
utero
.
No reasonable explanation has been proffered for such omission. The
general nature of the looming harm and the general manner
on how the
harm would occur were both reasonably foreseeable
11
.
The situation as explained by Dr Du Toit makes it clear in my mind
that the defendants’ employees should have taken preventive
measures to help the plaintiff by performing caesarean birth on her
to save her baby. Their failure to do so amounts to negligence.
It is
clear, in my view, that the occurrences of death of the plaintiff’s
child, when it was apparent that it was suffering
from foetal
distress, was clearly and reasonably foreseeable to all the
defendants’ professional staff including the nurses
and the
doctors
12
.
[72] In his argument Mr
Pretorius referred me to decided cases particularly the judgment of
Yanga
Kosana vs The MEC for Health, Western Cape
case
no 9230/2005 delivered on 23
rd
January 2008. The facts
of the above case are clearly distinguishable from those of the case
in casu
.
I cannot, therefore, rely on it when deciding the present case though
I agree with the principles formulated therein.
[73] It is trite law that
in a trial, evidence that is not challenged and is subsequently
accepted by the Court, can be used by
the Court in proving or
disproving either parties case provided that it is relevant to the
issues involved in the case. If a point
in dispute is left
unchallenged in cross-examination, the party calling the witness is
entitled to assume that the unchallenged
evidence is accepted as
correct
13
.
[74] I have already
indicated that the plaintiff’s evidence and that of her
witnesses has been accepted as true and that includes
their evidence
which has not been challenged during cross-examination.
[75] In the circumstances
I find that the plaintiff has established on a balance of
probabilities that the defendants acted negligently
in failing to
treat plaintiff and her unborn child with the required level of care
and skill required of them during the preparation
for the plaintiff’s
delivery on 12
th
September 2004. This
negligence resulted in the death of the plaintiff’s baby.
[76] In the premises I
declare as follows:
[76.1] The defendants are
liable to compensate the plaintiff in respect of any such damages as
the plaintiff is able to prove in
due course.
[76.2] The defendants are
ordered to pay the plaintiff’s costs of suit, as taxed or
agreed on a party and party High Court
scale, such costs to include
costs occasioned by the employment of two counsel, if any, and to
include the costs of Dr Du Toit
and the interpreter, where
applicable.
[76.3] The defendants are
ordered to pay interest on the plaintiff’s costs at the rate of
15.5% per annum as from a date 14
days after the date of taxation or
agreement until the date of payment.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Representatives of
parties
:
Advocate of plaintiff: Mr
P.H. Mouton SC with him Ms I Bands
Instructed by: GP Van
Rhyn Minnaar & Co Inc
c/o Lee Strydom Fourie
Inc
218 Cape Road
Mill Park
Port Elizabeth
Advocate of defendants:
Mr. B. Pretorius
Instructed by: The State
Attorney
29 Western Road
Central
Port Elizabeth
1
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
at 498 para 12G-H
2
Minister
of Police V Ewels
1975 (3) SA 590
(A). Gouda Boerdery BK v Transnet
supra
3
See
footnote no 1
supra
4
Gouda
Boerdery BK v Transnet
supra
5
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) also at
[2000] 3
All SA 171
in para [9] at 1054 H-I (SA)
6
Cape
Metropolitan Council v Graham
2001 (1) SA 1197
SCA also at
[2001] 1
ALL SA 215
Para 6 at 1203E-G (SA)
7
Van
Wyk v Lewis
1924 AD 438
at 444F.
8
2006
(2) SA 161
(SCA) at 171C
9
Classen
and Verchoor – Medical Negligence in South Africa (1992) at 15
10
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3)
SA 1188
(SCA) at 1200 D-E
11
Minsiter
of Police v Van Aswegen
1974 (2) SA 101
(A)
12
Van
Der Spuy v Minsiter of Correctional Services
2004 (20 SA 463
(SECLD)
at 472. See also Munkeiber v
Raath and Another
1999 (3) SA 1065
(SCA) at 1077
13
President
of the RSA v South African Rugby Football Union
2000 (1) SA 1
(CC)
at 37 B-E