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[2021] ZAECPEHC 50
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V.N obo P.N v Member of the Executive Council for the Department of Health and Social Development of the Eastern Cape Province (132/2015) [2021] ZAECPEHC 50 (31 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION PORT ELIZABETH
CASE
NO: 132/2015
DATE
HEARD: 13/04/21
DATE
DELIVERED: 31/08/21
IN
THE MATTER BETWEEN:
VN
on behalf of
PN
PLAINTIFF
And
THE MEMBER OF THE
EXECUTIVE COUNCIL FOR
DEFENDANT
HEALTH &
SOCIAL DEVELOPMENT OF THE
EASTERN CAPE
JUDGMENT
VAN
ZYL DJP:
[1]
This is a medical negligence case arising from a birth injury.
The plaintiff gave birth to PN
at the Dora Nginza Hospital (“the
hospital”) situated in Port Elizabeth during October 2009.
PN sustained a permanent
brain injury during delivery. The
plaintiff instituted an action in this Court against the Member of
the Executive Council
for Health and Social Development of the
Eastern Cape on behalf of PN for damages arising from the allegedly
negligent conduct
of the employees of the defendant at the hospital.
The defendant accepted vicarious liability for the actions of the
midwifery
staff at the hospital. In accordance with Uniform
Rule 33 (4), the issues of negligence and causality were separated
from
the remaining issues in dispute. Put differently, the
issue of liability was limited to whether or not the midwives acted
negligently, and whether that negligent conduct, if so established,
caused PN to sustain the brain injury.
[2]
The injury sustained by PN during childbirth (intrapartum) was
diagnosed as hypoxic-ischemic encephalopathy
due to oxygen
deprivation. The injury has caused her to develop cerebral
palsy. The exact nature of the brain injury
is not in dispute.
Its features are in keeping with what is known as an acute profound
(near-total) hypoxia insult.
It is consistent with her MRI
brain scan that shows, what has been described as, a
“
classic
diagnostic features of an acute profound hypoxic injury of a term
brain in a chronic stage of evolution
”
.
It
is further consistent with PN’s condition immediately after
birth. The clinical notes of the midwife show that PN
exhibited
signs of neurological impairment immediately after birth, in that she
required intensive resuscitation in order to sustain
both respiratory
and cardiac function, and had a depressed tone. The indications
at birth of PN having sustained a brain
injury will be discussed in
more detail when I deal with what has been alleged to be negligent
conduct by the midwives following
the birth of PN (postpartum).
[3]
With regard to the nature of, and the mechanism for the injury that
PN suffered, it is common cause
that she sustained, what is known as
an acute profound hypoxic ischemic brain injury during the second
stage of labour. This
type of insult is evidenced by the
pattern of the injury to the brain. It presents itself in a
primarily central pattern
of injury involving the deep grey matter of
the brain. It is a severe injury that is caused by the almost
complete interruption
of the oxygen in the blood supply, and of the
oxygen levels in the tissue. The expert witnesses agreed that
an acute profound
hypoxic-ischaemic injury usually takes place in a
short period of time, and that it progresses rapidly. The
witnesses were
further in agreement that the almost complete
disruption of the blood supply and oxygen to the brain of PN must
have endured for
a minimum period of ten minutes, up to a maximum of
forty five minutes, although these estimates were based on
experiments carried
out on animals and cannot be measured very
accurately.
[4]
An intrapartum acute profound hypoxial insult may be caused by
sentinel events, which is defined as
any unanticipated event that
results in death or serious physical injury that is not related to
the natural cause expected.
Examples of possible intrapartum
sentinel events are a ruptured uterus; a separation of the placenta
before the delivery of the
foetus; a prolapse of the umbilical cord;
foetal-internal haemorrhage; and maternal shock during labour.
The list is not
exhaustive.
[5]
This injury must be distinguished from an insult that develops over
time. It is known as
a partially prolonged
hypoxic-ischaemic injury. An insult of this nature results in a
different pattern of injury.
The auto regulatory mechanism
known as shunting
[1]
allows for
compensatory redistribution of blood flow to occur. It ensures
that during episodes of prolonged foetal hypoxia,
blood is directed
to vital brain structures of the foetus, at the expense of less
metabolically active structures, namely the cerebral
cortex and the
white matter. This generally protects the brain stem,
cerebellum and deep grey matter from injury during a
prolonged
episode. An injury sustained during a prolonged episode is less
severe, with partial asphyxia. It develops
over several hours
and is often preceded by a deteriorating foetal heart rate that
serves as a warning of the development of hypoxia.
[6]
The plaintiff’s pleaded case is in essence focused on an
alleged failure by the midwives to provide
adequate care by failing
to properly monitor the plaintiff’s labour, to gather
information on the condition of the foetus,
and to ensure that
timeous interventions were implemented to prevent a prolonged labour,
and thereby preventing the foetus from
suffering from a lack of
oxygen. A ground of negligence that received much attention in
evidence and in argument was that
the midwives requested a security
guard to apply physical pressure to the plaintiff’s abdomen to
effect delivery
“
in
circumstances where other usual means of delivery (caesarean section,
alternatively
ventouse,
alternatively
forceps delivery) would have been appropriate and a safe method of
delivery.”
The
plaintiff advanced a secondary case in argument that was not pleaded,
which is that the midwives, following NP’s delivery,
failed to
take adequate steps to resuscitate her and that it contributed to the
injury she had sustained during labour.
[7]
The plaintiff testified, and adduced the evidence of three expert
witnesses, being Dr Hofmeyer, a specialist
obstetrician and
gynaecologist at the Christiaan Barnard Netcare Hospital in Cape
Town; Prof Kirsten, a specialist neonatologist,
who prior to his
retirement was attached to the Department of Paediatricians and Child
Health at the Tygerberg Children’s
Hospital and the University
of Stellenbosch; and Prof Nolte, a professor of nursing.
The defendant, in turn, called
Sister Minnaar who, together with a
Sister Laminie, were the midwives that attended to the plaintiff’s
labour. A sister
Bosman admitted the plaintiff and performed
the foetal cardiotocography.
[2]
The defendant also presented the evidence of two expert witnesses;
Dr Nel, is an obstetrician and gynaecologist who,
on his retirement,
was the Head of the Department of Obstetrics and Gynaecology at the
George Provincial Hospital, and Prof Cooper,
a paediatrician and
neonatologist who has been conferred the status of Emeritus Professor
by the School of Clinical Medicine of
the University of the
Witwatersrand. No issue was taken with the expertise of
any of the expert witnesses, and I find
them to have been duly
qualified to have given the opinions which they did.
[8]
The issues put forward by the plaintiff for determination are in
essence the following two questions:
(i)
Was
there conduct on the part of the midwives and the medical personnel
at the hospital, either during the plaintiff’s labour
or
subsequent thereto, that did not meet the standard of care that was
required of them in the circumstances; and,
(ii)
If
they are found to have been negligent, did such negligence cause or
materially contribute to PN’s condition?
[9]
The legal burden of proof is on the plaintiff. The standard of
proof is the civil standard of
proof on a balance or preponderance of
probabilities, that is to say, that the case of the party that bears
the burden of proof
is more likely than not to be true. How
that burden is discharged, is an aspect which will be dealt with more
fully when
I deal with the issues that I was asked to decide.
[10]
In argument the submission was that the evidence proves that the
injury suffered by PN was caused by, or was contributed
to, by a
chain of events that manifested itself by reason of the negligent
conduct of the midwives and the medical personnel of
the hospital
namely:
(a)
An
unchecked, un-remedied tapping of foetal reserves during labour;
(b)
The
application of excessive, continued fundal pressure to the foetus,
that severely compromised and injured the foetus; and
(c)
The
ineffective resuscitation of PN after birth.
[11]
At the outset, and before addressing the aforesaid issues, it is
appropriate to deal with certain of the definitions
and explanatory
evidence tendered by the expert witnesses, in order to have a better
understanding of the evidence contextually.
Most of this
evidence comes from the expert reports and the summaries of the
evidence of expert witnesses that was either not seriously
disputed,
or remained undisputed.
[12]
Normal labour is divided into four stages and it is documented as
such. Each stage has certain criteria and
guidelines in order
to optimise both maternal and foetal well-being and minimise maternal
and foetal risk. The onset of labour
is defined as the presence
of regular contractions with one of the other signs of labour being
present, namely a show, rupture
of the membranes or cervical
dilations.
[13]
From the commencement of labour up to full cervical dilation (10 cm)
is the first stage of labour. The first
stage is divided into
two phases namely latent and active labour. During the latent
phase the cervical dilation progresses
to 4 cm, and contractions
strengthen to about 3 moderate contractions per 10 minutes. In
a primigravida (a mother who had
no previous deliveries), the latent
phase commonly lasts approximately 8 hours.
[14]
The second stage of labour begins when the cervix is fully dilated,
and ends with the birth of the baby.
It is subdivided into two
phases. The first phase is from full dilation until the
presenting part of the foetus reaches the
pelvic floor. In the
second stage the foetus presents itself on the perineum of the
mother, and she has the urge to bear
down. The third stage of
labour is placental delivery, and the fourth stage refers to the
post-partum period.
[15]
From the evidence it is evident that a function of intrapartum
monitoring by the midwives is to detect developing
foetal hypoxemia.
Hypoxemia is a decrease of oxygen levels in the blood of the foetus.
Hypoxemia during labour is not
per
se
an adverse condition. It occurs naturally during labour, for
example during contractions. The foetus is however normally
equipped to deal with such episodes. The reason lies in the
physiology of the foetus. In utero (in the womb) it is
accustomed to a lower level of oxygen than what the norm is after
birth. The foetus is consequently well equipped to tolerate
intervals of oxygen deprivation, as it will frequently occur during
contractions in labour. The compensatory response of
the foetus
to hypoxemia during labour is to increase its heart rate and to
redistribute oxygenated blood to more deserving organs,
such as the
brain, heart and adrenal glands. This mechanism is known as
“
shunting”
.
[16]
Should the oxygen levels in the blood however for some or other
reason remain low, and the oxygen levels are not
restored, it will
lead to hypoxia. Hypoxia is when the lack of oxygen causes
irreparable cell damage to the essential organs.
If it
continues and oxygen is not restored, it will lead to asphyxia which
is when the lack of oxygen is inadequate to maintain
the essential
organs from functioning. This leads to cell death in the heart,
brain and adrenal glands. This injury is believed
to be the major
cause of hypoxic ischaemic encephalopathy.
[17]
The term
“
ischaemic”
refers
to oxygen deficiency due to decreased blood flow and the
under-perfusion of an organ or tissue. It may operate in
combination with primary hypoxia. The term
“
bradycardia”
refers
to a low foetal heartrate.
[18]
Foetal cardiotocography or CTG monitoring is an electronic recording
of the heartrate of the foetus. This
form of monitoring during
labour involves the placing of sensory devices on the abdomen of the
mother. It provides two outputs.
The first is an audible
noise of the foetal heart rate. The second is a printed CTG trace,
which is a graphical representation
of the results of the CTG
monitoring. The CTG trace has two parts. The upper part
of the trace represents the foetal
heart rate, whilst the bottom line
of the strip shows the mother’s uterine contractions.
[19]
The intervals of hypoxemia during labour presents itself in the
cardiotography (CTG) monitoring as an acceleration
of the heart rate
when blood is distributed to the vital organs, followed by a
deceleration of the heart rate. Dr Hofmeyer
explained, in
respect of a CTG trace, that the foetal heartrate is assessed for
four features. The first is the baseline
rate. It
represents the average foetal heart rate between accelerations and
decelerations. The second is the variability
of the trace and
represents the changes in the heartrate of the foetus. A normal
foetal heartrate should vary with more than
five beats per minute.
Good variation is an indicator of a healthy foetus. The third
feature is the presence of accelerations
which occur when the foetus
becomes excited or stimulated, and the heartrate jumps from the
baseline up. The fourth is the
presence of decelerations that
indicate a fall in the heart rate. For it to be significant, a
deceleration must consist of
a slowing of the foetal heartrate
(bradycardia) to below at least fifteen beats per minute below the
assessed baseline.
[20]
A common indicator of a foetal heart rate trace that is
non-reassuring and may signal foetal distress, is an increased
heart
rate above 160 bpm that is not corrected, followed by decelerations
below 110 beats per minute which are completely independent
of
contractions. Prolonged, deep or persistent decelerations can
progress to either a pre-terminal bradycardia and foetal
death, if
there is no corrective intervention, or it can progress to partial
asphyxia which is commonly seen through a flat CTG
trace.
[21]
The condition of the mother and the foetus, and the progress of
labour is recorded in a document known as a partogram.
It is a
graphical representation of labour from the onset of labour to the
birth of the child.
“
Caput”
is
a soft tissue swelling on the head of a new born. It develops
when the labour is prolonged, and when there is some degree
of
obstruction to the head coming through the pelvis. It may be
caused where the baby’s head is proportionally too
large or the
mother’s pelvis is too small to easily allow the baby to fit
through the pelvic opening. This is not abnormal,
but is an
important clinical finding, as it may be indicative of some degree of
difficulty or obstruction of the baby’s head
descending through
the pelvis.
[22]
“
Meconium”
is
foetal bowel content. It is indicative of a foetus that is
distressed while still in the womb. If distressed the
foetus
will expel a faecal-like material called meconium into the amniotic
fluid, making it dark in colour. The absence of
meconium in the
amniotic fluid when it is released by the rupture of the membranes at
the onset of labour, is a reassuring sign,
but not determinative of
the absence of foetal distress.
[23]
Cephalopelvic
disproportion
is
when the foetal head is too large, or in a position that renders it
difficult to pass through the pelvis of the mother.
Fundal
pressure
is
a procedure where the person delivering a child would apply pressure
on the fundus of the uterus of the mother during contractions
to
create longitudinal force towards a specific angle to the pelvis to
assist the passage of the foetus through the birth canal.
The
fundus is the top part of the uterus. An
Apgar
score
is
a table of measurement which describes the condition of a newborn
immediately after birth, and is used to determine whether the
newborn
requires medical intervention or assistance such as resuscitation at
birth. The newborn is given a score for the
following:
the appearance of a neonate, pulse rate, grimace (facial expression),
activity, and respiration (breathing).
[24]
Turning then to deal with the identified issues, the focus of the
first issue as formulated by the plaintiff, is
on the first stage of
the plaintiff’s labour. This issue calls into question
the standard of the monitoring of the
plaintiff’s labour and an
alleged failure to detect foetal distress. The contention, put
simply, is that during the
first stage of labour, the foetus showed
signs of distress; that the negligence on the part of the midwives
caused the foetus to
arrive during the second stage of labour in a
compromised condition; and that the said negligent conduct, resulted
in the foetus
being unable to cope with the event that ultimately
caused it to sustain the brain injury. The submission is
premised on
the proposition that the condition of the foetus when it
arrived at that event contributed to the ultimate injury which PN
sustained.
[25]
This issue raises the following questions:
(a)
Was
the foetus in distress during the first stage of labour?
(b)
If
so, did the midwives fail to manage it according to the required
standard?
(c)
Did
the foetus arrive at the active stage of labour in a weakened
state?; and
(d)
If
so, did it cause or contribute to the foetus being unable to cope
with the event that caused the injury?
[26]
The plaintiff’s proposition that the foetus arrived at the
event that caused the injury in a weakened condition,
is premised on
the following: that the midwives did not properly interpret the
decelerations that were recorded by the CTG;
which decelerations
provided evidence of foetal distress; that they had failed to
initiate foetal resuscitation by turning the
plaintiff onto her side
and providing her with oxygen; that whilst the foetal heart
variability was recorded by the midwives as
being good throughout the
plaintiff’s labour, variability can only be assessed by way of
a printed CTG, which CTG monitoring
was in any event prematurely
discontinued approximately an hour into the plaintiff’s
labour; that the plaintiff’s
labour was prolonged, which
was evidenced by the clinical note that there was poor maternal
effort by the time the plaintiff was
fully dilated and started to
bear down; and that there were warning signs present which
ought to have alerted the midwives
to call a doctor to intervene in
the delivery of PN. The warning signs are centred around the
proposition that the plaintiff
was small in stature, and that an
obstructed labour due to cephalopelvic disproportion ought to have
been considered. This
resulted in a second stage of labour that
lasted longer than what would otherwise have been expected.
[27]
The plaintiff is relying primarily on expert evidence in support of
the above proposition. The expert opinion
was based on the
notes of the clinic in respect of antenatal care, the CTG trace, and
the hospital notes of the midwives.
Before I proceed to deal
with the evidence of the expert witnesses on this issue, it may be
convenient to say something about how
that evidence is to be
approached and evaluated when there is conflicting or inconsistent
evidence from two or more expert witnesses.
“
In
the law of evidence ‘opinion’ means any inference from
observed facts, and the law on the subject derives from the
general
rule that witnesses must speak only to that which was directly
observed by them.”
[3]
Opinion
is admissible if it is relevant. Relevance is in turn
determined by the issues in the matter. If the opinion
can
assist the court in determining an issue, is has probative value,
otherwise it is superfluous.
[4]
Expert opinion evidence is received when the issues require special
skill and knowledge to draw the right inferences from
the facts
stated by the witnesses.
[5]
[28]
Conceptually there are several types of conflicts in expert evidence
that may present itself in any given case.
Some of these are
the following: The first is a conflict with regard to the
assumed facts. By reason of its very nature,
expert opinion
must have a factual basis. The facts upon which an expert’s
opinion is based must be proved by admissible
evidence, and the
expert witness should be asked in examination-in-chief what those
facts are.
[6]
“
An
expert’s opinion represents his reasoned conclusion based on
certain facts or data, which are either common cause, or established
by his own evidence or that of some other competent witness.
Except possibly where it is not controverted, an expert’s
bald
statement of his opinion is not of any real assistance.”
[7]
How
those facts are proven is determined by the principles of evidence
and the usual methods used for judicial fact finding and
rational
decision-making. Where the expert him or herself observed
relevant facts, that evidence will be evidence of fact
and admissible
as such.
[8]
Where the
opinion seeks to take issue on the facts with the version of direct
eyewitness evidence, credible eyewitness evidence
that conforms to
the probabilities, will generally take preference to the opinion of
an expert of what the facts are.
[9]
In the final result, the decision of what the facts are must be
founded on an assessment of the evidence as a whole and the
probabilities
as they appear therefrom.
[10]
[29]
Secondly, a conflict in the expert opinion may lie in the
analysis of the established facts and the inferences
drawn therefrom
by opposing expert witnesses. In the present context an example of
this type of dispute is whether the CTG tracings
provide evidence of
foetal distress, or that the administering of adrenalin was evidence
of a very low heartrate. A
proper evaluation of the
evidence in this context focuses primarily on
“
the
process of reasoning which led to the conclusion, including the
premise from which the reasoning proceeds…”
[11]
The
reason for interrogating the underlying premise of expert opinion
lies in its nature. In essence it amounts, as in the
present
context, to a statement that established medical opinion, as the
expert witness interprets it, dictates a particular result
under an
assumed set of facts. This requires an assessment of the
rationality and internal consistency of the evidence of
each of the
expert witnesses.
[12]
“
The
cogency of an expert opinion depends on its consistency with proven
facts and on the reasoning by which the conclusion is reached.”
[13]
The
source for the evaluation of this evidence are the reasons that have
been provided for the position taken by the expert, and
whether that
reasoning has a logical basis when measured against the established
facts, and the probabilities raised on the facts
of the matter.
[14]
It means that the opinion must be logical in its own context, that
is, it must accord with, and be consistent with all the
established
facts, and must not postulate facts which have not been
proved.
[15]
[30]
The inferences drawn from the facts must be sound. Whether or
not evidence permit the drawing of an inference,
will be dealt with
more fully hereinunder.
[16]
The internal logic of the opinion must be consistent, and the
reasoning adopted in arriving at the conclusion in question
must
accord with what the accepted standards of methodology are in the
relevant discipline.
[17]
The reasoning will be illogical or irrational and consequently
unreliable, if it is based on a misinterpretation of the facts,
or it
is speculative, or internally contradictory or inconsistent to be
unreliable, or if the opinion is based on a standard of
conduct that
is higher or lower than what has been found to be the acceptable
standard, or if the methodology employed by the expert
witness is
flawed. What flows from this is that the fact that an expert
opinion is unchallenged, does not necessarily mean
that it must be
accepted.
“
The
Court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical
practice.
The Court must be satisfied that such opinion has a
logical basis, in other words that the expert has considered
comparative risks
and benefits and has reached ‘a defensive
conclusion’.”
[18]
[31]
Other considerations relevant in this context are the qualifications
and the experience of the expert witnesses
with regard to the issue
he or she is asked to express an opinion on; support by
authoritative, peer-reviewed literature;
[19]
the measure of equivocality with which the opinion is expressed, the
quality of the investigation done by the expert, and the presence
or
absence of impartiality or a lack of objectivity. What is
ultimately required is a critical evaluation of the reasoning
on
which the opinion is based, rather than on considerations of
credibility.
[20]
Should
it not be possible to resolve a conflict in the expert opinion
presented to the court in this manner, that is, when
the two opposing
opinions are found to be sound and reasonable, the position of the
overall burden of proof will inevitably determine
which party must
fail.
[32]
Another type of conflict, which may arise in expert evidence, is the
position of competing theories of a purely
scientific nature.
The choice between two conflicting theories is informed primarily by
the extent to which the theory is
regarded as being established and
has gained general acceptance within the specific scientific
community in the particular discipline
to which it belongs.
Whether or not a theory has been sufficiently established must be
measured against considerations such
as whether it can, and has been
tested, whether it is the product of reliable principles and methods
that have been reliably applied
to the facts of the case, and it has
been subjected to peer review and publication.
[33]
A dispute may also arise in the context of what the accepted standard
of conduct of a medical professional is in
certain circumstances.
Typically medical negligence cases deal with the situation where an
injury is alleged to be in complete
discord with the recognised
therapeutic objective and techniques of the operation or treatment
involved. Expert opinion,
in this context, is aimed at
determining whether the conduct of a professional person in a
particular field accords with what is
regarded as sound practice in
that field. Again, the method adopted is to evaluate opinion
evidence with the view of establishing
the extent to which the
opinions advanced are founded on logical reasoning.
[21]
[34]
What is evident from the aforegoing is that the evaluation of expert
opinion in determining its probative value
and the considerations
relevant thereto, are determined by the nature of the conflict in the
opinion, and the context provided
by all the evidence and the issues
which the court is asked to determine. In general, it is
important to bear in mind that
it is ultimately the task of the court
to determine the probative value of expert evidence placed before it
and to make its own
finding with regards to the issues raised.
[22]
Faced with a conflict in the expert testimony of the opposing
parties, the court is required to justify its preference for
one
opinion over another by a careful evaluation thereof. Further,
the primary function of an expert witness is to guide
the court to a
correct decision on questions which fall within that expert’s
specialised field. To that extent, the
expert witness has a
duty to provide the court with abstract or general knowledge
concerning his or her discipline, and the criteria,
necessary to
enable the court to form its own independent judgment by the
application of the criteria to the facts proved in evidence.
[23]
Accordingly, the mere
“…
pitting
of one hypothesis against another does not constitute the discharge
of the functions of an expert.”
[24]
Finally,
it is not the function of the court to develop its own theory or
thesis and to introduce on its own accord evidence that
is otherwise
founded on special knowledge and skill.
[25]
[35]
In the present matter, the conflict in the expert evidence regarding
the issue of negligence falls primarily into
the second category.
The primary source of the facts are the medical records referred to
earlier. On a whole, there
exists no reason to doubt the
honesty and the reliability with which the information contained in
those documents have been recorded.
The honesty of the midwives
was not disputed. The reliability of one or two aspects thereof
were put into question, such
as the recordal of the time at which the
paediatrician saw PN after birth, and the accuracy of the Apgar score
and the heartrate
recordings. I shall address the latter aspect
in more detail when dealing with the plaintiff’s submissions
regarding
the standard of PN’s resuscitation. On an
overall conspectus, I am satisfied that where mistakes were made,
they are
isolated and satisfactorily explained, and when measured
against the overall standard of recording of the midwives, are
insufficient
to detract from the reliability of this evidence as a
whole.
[36]
The first question is then whether or not the midwives were
negligent. Negligence is established if a reasonable
person
would foresee the reasonable possibility of his or her conduct
injuring another person and causing that person patrimonial
loss, and
would, in such circumstances take reasonable steps to guard against
such occurrence.
[26]
The
requirements for negligence are applied to a reasonable person in the
position of the defendant. This means that
the specific
qualities of the defendant, such as specialised skills and knowledge
which he or she possessed at the time, must be
considered in
assessing his or her conduct against the requirements for
negligence. Consequently, the relationship between
a plaintiff
and a defendant that possess specialised skill and knowledge may
require a standard of care from the defendant that
is different to
what the standard would otherwise be.
[37]
A professional midwife falls within a category of persons, not unlike
any other person who engages in a profession
which demands special
knowledge and skill, who must measure up to the standard of
competence and skill of a person professing such
competence and
skill.
[27]
It is not
expected of such a defendant too exercise the highest possible degree
of professional skill.
[28]
What is expected of him or her is the general level of skill
and diligence, which is possessed and would ordinarily be exercised
by a reasonable member of the branch of the profession to which he or
she belongs under similar circumstances. Where the
conduct
relied upon is the failure to adhere to a particular practice or
procedure, the question is whether the conduct falls within
the range
of acceptable practice at the relevant time.
[29]
[38]
On an application of these principles to the facts of the present
matter, it must follow that negligence is not
presumed, but must be
established by substantive evidence. The fact of a poor outcome
in itself does not establish negligence.
As stated by Lord
Denning in Hucks v Cole,
[30]
“…
with
the best will in the world things sometimes went amiss in surgical
operations or medical treatment. A doctor was not
to be held
negligent simply because something went wrong.”
[31]
In
the present context, reasoning of this nature would simply be because
the plaintiff had a normal pregnancy, yet she gave birth
to an
injured child, therefore, there was negligence. This reasoning
is based on the drawing of an inference simply from
the temporal
sequence of events, which is an unreliable method of inferential
reasoning. Inferential reasoning is an accepted
technique that
is utilised in judicial fact-finding. However, the inference
sought to be drawn must be capable of being drawn
from the objective
facts established by evidence.
[32]
If tenuous, or far-fetched, it cannot form the foundation for the
court to make any finding of fact.
[33]
Further, the inference must be based on, and be consistent with all
the admitted or proved facts, and not be matters of speculation.
[34]
In this matter, the fact of a poor outcome cannot support the drawing
of an inference of negligence without more. The
accepted
evidence on behalf of the expert witnesses in the present matter is
that an injury, such as the one sustained by PN, may
result from an
unanticipated event that occasionally takes place without prior
warning, and despite proper monitoring of the maternal
and foetal
condition. The fact that the mother had an otherwise normal
pregnancy, viewed together with the presence of a
birth injury, is
accordingly not in itself sufficient to draw an inference that the
conduct on behalf of the midwives was negligent
during the
plaintiff’s labour.
[39]
Liability will only be imposed if it was proven that the unfavourable
outcome of the plaintiff’s labour was
reasonably foreseeable,
and that the midwives must be found not to have provided the level of
skill and competence that would otherwise
be expected to have been
provided by a reasonable midwife in similar circumstances.
Another aspect to bear in mind is the
word of caution expressed in
Braude
v McIntosh,
[35]
namely, the adoption of an approach to the evidence that would not
account for the burden of proof:
“
There
is of course another consideration to be borne in mind in cases of
this kind, when a patient has suffered greatly because
of
something that has occurred during an operation a court must guard
against its understandable sympathy for the blameless patient
tempting it to infer negligence more readily than the evidence
objectively justifies, and more readily than it would have done
in a
case not involving personal injury. Any such approach to the
matter would be subversive of the undoubted incidence of
the onus of
proof of negligence in our law in an action such as this.”
In
the final analysis, negligence must be determined in the light of all
the evidence.
[36]
[40]
It is for the plaintiff, as the party who bears the overall burden of
proof, to show what the required standard
of skill and competence is
in any particular case. From the evidence of Prof(s) Nolte and
Kirsten, the skill and the competence
possessed by a reasonable
midwife may be widely stated as to include the ability to provide
support to the mother; to monitor,
gather and record information on
the status of the foetus and the mother; to deal with, and to report
on any significant changes
or problems during labour, and to take
steps to ensure medical intervention by a doctor if and when it is
required.
[41]
I am not persuaded that the evidence on which the plaintiff placed
reliance for the submission made, lends support
to a finding, on the
required standard of proof, that the midwives were negligent in their
monitoring of the status of the foetus
during the first stage of the
plaintiff’s labour. It is inconsistent with the evidence
of the plaintiff’s own
witness, namely Dr Hofmeyer, that the
plaintiff probably endured a normal first stage of labour up to the
time of full dilation.
I am satisfied that the evidence
supports this view expressed by her. Insofar as there may be
differences in the evidence
of the expert witnesses regarding the
standard of care during this stage of labour, I prefer the evidence
of the defendant’s
witness, Dr Nel. What follows are the
reasons for these findings.
[42]
The failure by the midwives to continue the CTG recording beyond the
first hour and a half does not on its own
raise the likelihood of a
failure to diligently monitor the plaintiff’s labour.
Both Prof Kirsten and Dr Hofmeyer acknowledged
in their evidence that
at the relevant time the maternal guidelines did not require the
midwives to either have been in possession
of a cardiotocograph
machine, or to use such a machine to monitor the labour process.
Dr Hofmeyer also acknowledged that
CTG monitoring is not a substitute
for good clinical observation and judgment. Further, whilst
describing it as a generalisation,
Dr Hofmeyer acknowledged that the
information at hand shows that the use of cardiotocograph monitoring
has not reduced the incidences
of foetal compromise. Another
aspect is that it is evident from the evidence in this case that the
use of, and the interpretation
of CTG tracings, has an element of
unreliability to it. It is not only open to interpretation, but
may also render an inaccurate
recording caused by otherwise harmless
events, such as the fact that the mother was lying on her back; or
that she was touching
her stomach; or that adjustments were made to
the contact points; or that there was a loss of contact when the
mother was turned
from one side to another.
[43]
The opinion of a prolonged second stage of labour and poor progress
was based on two things: firstly, it
was premised on the
assumption by the plaintiff’s expert witnesses that there was a
time lapse of an hour and 20 minutes
between the time that the
plaintiff was fully dilated, and when she gave birth to PN.
This was an incorrect assumption based
on taking the time of full
dilation as 22h15, as opposed to 23h15, an hour later. There is
no reason to doubt the evidence
of Sister Minnaar in this regard.
It is supported by the context of what was recorded in the clinical
notes, and Dr Hofmeyer
was unable to suggest any reason for that not
to be the correct position. Dr Hofmeyer was left with no option
but to accept
that the plaintiff was fully dilated at 23h15, and not
22h15, the time on which her opinion was based. In addition,
Prof
Kirsten acknowledged that, provided the foetal condition is
good, the second stage of labour could be as long as two hours
without
any complications. Dr Hofmeyer similarly acknowledged
this in cross-examination. She was also constrained to
acknowledge
that her opinion that the plaintiff’s labour
progressed poorly in the final stages, by reason of the plaintiff
bearing down
prematurely, and that the decent of the head of the
foetus was slow, was based on the incorrect assumption regarding the
timeline,
and that the midwives did nothing to stop the plaintiff
from bearing down. The latter aspect is in any event
inconsistent
with the clinical notes, where it was specifically
recorded that the plaintiff was distracted from the urge to bear
down, by her
being advised to sit up. It is also inconsistent
with the plaintiff’s own evidence that she was told to breathe
deeply,
which is an accepted method to achieve distraction from the
urge to bear down. The result is that the time lapse between
dilation and birth is, on the facts of this matter, not evidence of a
prolonged labour.
[44]
Is there evidence of an obstructed labour that should have caused the
midwives to take action? The answer
in my view is no.
Prof Nolte expressed the opinion that there was an indication from
the clinical records of a slowing down
of the cervical dilation and
in the descent of the foetal head, and that same was evidence of an
obstructed labour. Prof
Kirsten, in turn, simply accepted the
correctness of Prof Nolte’s opinion without expressing an
opinion of his own.
Dr Hofmeyer was of the opinion that if the
plaintiff was fully dilated without the foetal head having fully
descended into the
pelvis, it would have been a matter of concern
without it being conclusive of there being an obstruction. The
evidence on
which Prof Nolte and Dr Hofmeyer based their respective
opinions does not stand up to scrutiny. They both conceded,
under
cross-examination, that a slowing down of dilation and a
descent of the foetal head towards the end of the first stage of
labour,
and shortly before the commencement of the second stage of
labour, is not uncommon. Dr Hofmeyer was further obliged to
concede
that an external assessment of the foetal head above the
pelvic rim was subjective, as the midwife only has
“
5
cm … or 5 fifths to work with.”
The
subjective nature of this assessment similarly finds application to
the measurement of the extent of cervical dilation before
the mother
is fully dilated.
[45]
There was no evidence that the plaintiff had cephalopelvic
disproportion that may have caused an obstructed labour.
Dr
Hofmeyer acknowledged that to be the position. She also
conceded that PN was a smaller than normal baby, and that the
time
that expired from when the plaintiff started bearing down until
delivery, cannot strictly be defined as a prolonged second
stage of
labour. The next question is whether the presence of a caput is
evidence of an obstructed labour. There are
numerous
difficulties with this proposition on the facts of this case.
As a point of departure, the mere presence of a caput
is not, on its
own, without further evidence, indicative of an obstructed labour.
Further, the assessment of the extent of
a caput is based on the
subjective interpretation of the midwife or obstetrician of its
size. Significantly, Dr Hofmeyer
conceded that her opinion was
largely based on, what transpired to be an incorrect assumption of
the extent of the caput as recorded
by the midwives. The caput
was recorded as plus one, and not plus two as the plaintiff’s
expert witnesses had assumed
it to be.
[46]
Prof Kirsten in his evidence sought to rely on what the nursing staff
later in the neonatal intensive care unit
noted to be a
“
huge”
caput.
This description of the caput is not normal nomenclature for the
classification of a caput, and Dr Hofmeyer acknowledged
that it is
impossible to quantify the caput by using such a description.
She could take it no further than to state that
for a person to
record a caput in such a manner, it must have been significant.
The subjective nature of the assessment regarding
the size of a
caput, together with the use of incorrect terminology for its
classification, in the absence of an explanation therefor
from the
person who made the recordal, introduces speculation and doubt as to
its reliability as evidence of an obstructed labour.
That
description must be measured against the clinical notes of the
midwives, whose trained function was to measure the size of
the caput
and to record it.
[47]
There is no evidence that the midwives in any way failed in their
duties with regard to the meticulous recording
of the progress of the
plaintiff’s labour. On the contrary, the midwifery staff
properly completed the partogram which
contained detailed
recordings. For example, it included recordings of the foetal
heart rate as measured every half hour,
and which heart rate was
always within acceptable parameters. Dr Hofmeyer described the
partogram as
“
beautiful”.
She
further described the recording of the cervical dilation as
“
text
book”,
and
she was obliged to concede that the first stage of labour was
probably normal. When it was put to Dr Hofmeyer that there
was
no evidence of cephalopelvic disproportion, she agreed that there
was, with what she described as the plaintiff’s definition,
no
poor progress or obstruction.
[48]
The plaintiff’s amniotic fluid was recorded as normal, which
means that there was no meconium present.
The significance of
this is that the presence of meconium may otherwise be indicative of
foetal distress. This meant that
there was nothing to warn the
midwives of possible foetal distress when the plaintiff was admitted
to the labour ward. The
opinion evidence with regard to there
being two early decelerations recorded by the CTG thereafter is in my
view insufficient to
raise the probability that the foetus, to the
knowledge of a reasonable midwife, was under stress, and that it had
to be managed
by seeking the intervention of a doctor. In the
summary of her evidence Dr Hofmeyer recorded that the CTG tracings
showed
that the foetus was in distress. In her evidence, she
changed that assessment to one of a CTG trace that was
“
not
a reassuring trace but rather a suspicious trace.”
Her
obvious change of mind in this regard must be measured against her
later evidence in cross-examination that the interpretation
of CTG
tracings are fraught with inter and intra-observer differences in
interpretation. Any importance that the two decelerations
may
have had in the context of measuring the standard of care given by
the midwives, was further diminished by Dr Hofmeyer’s
concession, late in her evidence when she agreed with Dr Nel that the
concern should rather have been focussed on the lack of variability
towards the end of the CTG tracing, rather than what was interpreted
as two decelerations at the beginning of the tracing.
[49]
The second feature of the CTG tracing, on which it was contended on
behalf of the plaintiff that the midwives had
failed to act on, was
what has been identified as a lack of variability towards the end of
the tracing. This however appears
to be of very little
significance. In the summary of her opinion, Dr Hofmeyer
described the relevant variability recorded
by the trace as subtle,
and that it may have gone unnoticed by the midwives. She
confirmed this in her
viva voce
evidence by a concession that
the midwives may reasonably have missed the lack of variability.
This concession is not only
a negation of the allegation of a lack of
care on the part of the midwives, but is also indicative of the fact
that the variability
was of such a nature that it could easily have
gone unnoticed. This is consistent with the evidence of Dr Nel,
the defendant’s
expert witness that the reduced variability as
recorded on the tracing was a very subtle sign, and that, as he put
it, takes a
lot of staring at CTG tracings to detect such changes.
Dr Nel similarly did not expect the midwives to have noticed the
reduced
variability. Another feature in this regard is that of
the reliability of a CTG tracing. According to Dr Nel,
interpreted
as decelerations, the relevant recordings may well have
been due to a loss of contact with the machine. In addition,
there
may have been other causes of a recorded reduced variability
such as the administering of sedatives.
[50]
Even assuming in the plaintiff’s favour that the midwives were
negligent in their monitoring of the condition
of the foetus, the
timing of when the injury occurred having been determined as shortly
before birth, it would mean that such failure
could, on the
probabilities, have had no causal effect on the catastrophic nature
of the injury which PN sustained in the second
stages of labour.
Prof Kirsten explained that where there is a sentinel event in the
second stage of labour, there is nothing
that can be done at that
stage, as it will take thirty to forty-five minutes to do a caesarean
section. Counsel for the plaintiff
understandably therefore limited
her argument with regard to the conduct of the midwives during labour
to the submission that had
the foetus arrived at the catastrophic
event in a healthy state, it would have had better reserves to deal
with that event, and
would have been less susceptible to injury.
The difficulty with this argument is that there is no measure to
determine in
what condition the foetus arrived at the event that
caused the injury, and any attempt at determining the role which the
condition
of the foetus may have played in it having sustained the
injury in question, would amount to nothing more than speculation.
[51]
The next ground of negligence on which the plaintiff placed reliance
was pivotal to her case. It is based
on the evidence of the
plaintiff that a male security guard was allowed to enter the
delivery room and asked to exert physical
pressure on her abdomen
shortly before she gave birth to PN. There is no question that
this conduct, if the evidence of the
plaintiff in this regard is
accepted, would constitute negligence on the part of the defendant’s
employees. As stated,
the application of pressure to the uterus
of a mother in labour is to assist in the birth process. It is
a medical procedure
and must be performed by a person with the
necessary knowledge and skill. To allow an untrained person to
perform such a
procedure would clearly fall short of the required
standard of care expected in the circumstances.
[52]
The importance of any negligent application of fundal pressure to the
plaintiff’s case arises from the fact
that there was no
identifiable sentinel event from the evidence that could have been
the cause of PN’s injury, and from the
acknowledgment by the
expert witnesses, that the fact that such an event is unidentifiable,
does not mean that an acute unanticipated
hypoxic-ischaemic incident
did not occur. According to Dr Cooper, a sudden onset of
bradycardia without an obvious sentinel
event is recognised, and is
largely unexplained, and in the majority of cases it is not possible
to determine when it started and
for how long it continued. Dr
Hofmeyer in her evidence further agreed that it cannot be excluded
that a marginal placenta
abruption may have occurred without it
having been detected. This is consistent with the evidence of
Prof Kirsten in the
summary of his evidence, that without a placental
histological evaluation, which is a costly investigation, having been
done, such
an event is not always clinically evident from a mere
placental inspection.
[53]
The evidence of fundal pressure therefore serves to provide an event
that may be identified as having caused the
injury sustained by PN.
According to Prof Kirsten the incorrect application of pressure on
the fundus of the uterus during
the second stage of labour that is
excessive may pose a risk of injury to either the mother or her
foetus. Excessive pressure
may compress the placenta and
umbilical cord, and increased intra uterine fundal pressure may lead
to alterations in foetal cerebral
blood flow, which may diminish
blood flow to the foetal brain. Prof Cooper agreed that the use
of excessive and prolonged
fundal pressure had the potential to
increase intra-uterine pressure, and as a result intra-cranial
pressure, which may possibly
impair cerebral blood flow in the
foetus. This would be damaging to the foetus, from which it
would not recover.
[54]
This evidence of the expert witnesses is based on the assumed fact
that fundal pressure was applied to the plaintiff,
and that it was
excessively applied. The plaintiff’s evidence, suggesting
the application of fundal pressure was denied
by Sister Minnaar.
Although she had no actual recollection of the plaintiff’s
labour and the birth of PN, Sister Minnaar
testified that she had no
knowledge of the use of uterine fundal pressure during childbirth at
the time, and that she would not
have allowed an untrained person to
assist in the labour of a patient. This is a factual issue that
must be resolved by applying
the principles which apply to the
adjudication of mutually irreconcilable versions.
[55]
The technique generally employed by the courts in resolving factual
disputes of this nature, was summarised as
follows in SFW Group Ltd
and Another v Martell ET CIE & Others
[37]
:
“
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b) their reliability; and (c) the probabilities.
As to (a), the court’s finding on the credibility
of a
particular witness will depend on its impression about the veracity
of the witness. That in turn will depend on a variety
of
subsidiary factors, not necessarily in order of importance, such as
(i) the witness’ candour and demeanour in the witness-box,
(ii)
his bias, latent and blatant, (iii) internal contradictions in his
evidence, (iv) external contradictions with what
was pleaded or
put on his behalf, or with established fact or with his own
extracurial statements or actions, (v) the probability
or
improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of
other
witnesses testifying about the same incident or events. As to
(b), a witness’ reliability will depend, apart
from the factors
mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event
in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates and analysis
and
evaluation of the probability or improbability of each party’s
version on each of the disputed issues. In the light
of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the
onus
of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing
the
former, the less convincing will be the latter. But when all
factors are equipoised probabilities prevail.”
[56]
The plaintiff’s evidence was less than satisfactory. On
an analysis thereof, it is characterised by
a lack of detail and
specificity, and it left the impression that she was determined to
establish an absence of care by, and attention
from the midwifery
staff. It must be accepted that she was asked to testify about
events that had taken place some ten years
earlier. However, at
the same time, the plaintiff was adamant that she had not told the
hospital staff on her admission to
the hospital that her labour pains
had started at about midday on the day in question. One can
hardly think of a reason for
the person who completed the necessary
forms on admission to have written time down the time, if he or she
did not receive that
information from the plaintiff herself.
Having then placed the time aspect in issue, the plaintiff does not
say what, if
anything, she told the hospital staff upon her admission
at the hospital. She was asked whether or not she was told
during
labour to push. Her answer was that
“
There
was no such, and she was only told to walk up and down.”
[57]
It is highly improbable that she was not assisted during labour by
being told what to do. It is inconsistent
with the care she, on
her own evidence as the questioning progressed, had received from the
midwifery staff before she was moved
to the labour ward. It is
equally inconsistent with the clinical notes recorded by the
midwives. As stated, there is
no reason to doubt that these
notes, for the most part provide an accurate account of the
plaintiff’s labour. The clinical
notes describe the
plaintiff as having been uncooperative and displaying poor maternal
effort. The notes do not bear out
the suggestion in the
plaintiff’s evidence that the midwives were not rendering her
much assistance while in the labour room;
that the only instruction
she received was for her to be placed on a bed; and that during
active labour, she was told to push.
This suggestion is
inconsistent with the midwives monitoring the progress of the
plaintiff’s labour and keeping meticulous
record thereof.
It is also inconsistent with the plaintiff’s concessions in
cross-examination that shows that she was
told to regulate her
breathing and that she was vaginally examined every 2 hours.
[58]
The plaintiff’s evidence that a male security guard was called
into the labour room to assist in the delivery
does not have the ring
of truth to it. The suggested conduct of the midwives is
inconsistent with the otherwise professionalism
that is reflected by
their recording of the plaintiff’s labour. The incident,
as it was described by the plaintiff,
raises numerous questions, such
as the role played by the second midwife in the delivery of PN.
According to the plaintiff
the one midwife was at her feet. The
second midwife was by her side. What the second midwife was
doing at the time
is not stated. There does not appear to have
been any obvious reason for asking for the assistance of a third
person, particularly
an untrained male person who had no reason to be
in a female delivery ward.
[59]
The plaintiff’s evidence was further that the security guard
informed her that the midwives were to perform
an episiotomy.
The probability of this evidence is questionable, more so in the face
of the contradictory instruction that
was given to Prof Nolte, the
plaintiff’s expert witness, namely that the male person was
called after an episiotomy had already
been performed. The
plaintiff’s emphatic denial of this proposition is in conflict
with the probability that the midwives
would have sought the drastic
intervention suggested by the plaintiff’s evidence before they
had first made an attempt to
assist the delivery of PN by performing
an episiotomy.
[38]
What
detracts further from the reliability of the plaintiff’s
evidence is that she acknowledged in cross-examination
to have had no
concept of time, and that she had experienced severe pain that became
unbearably worse towards the end of her labour.
[60]
The fact that the plaintiff was consistent in her claim that a
security guard exerted pressure on her abdomen during
labour is in my
view not on its own sufficient to render that evidence reliable when
measured against the defendant’s evidence
on this aspect as a
whole. As stated earlier, Sister Minnaar, for understandable
reasons, had no independent recollection
of the plaintiff’s
labour. I have found no reason to doubt her honesty as well as
the reliability of her evidence.
The fact that she had no
precise recollection of the facts pertaining to the plaintiff’s
labour, is irrelevant.
[39]
Her evidence was informed by the clinical notes kept by her and the
usual or normal practice followed by her in a delivery.
[40]
She testified that before having completed an advanced midwifery
course in 2015/2016 she was not aware of the procedure of
applying
fundal pressure.
[61]
Sister Minnaar’s evidence that the procedure was unknown to her
at the time of PN’s birth is consistent
with the evidence of
Prof Kirsten that the application of fundal pressure was not taught
at medical or nursing schools, and
the evidence of Prof Nel, that
fundal pressure, as a technique that is actively used, is only found
occasionally amongst older
nurses. It is also consistent with
Prof Kirsten’s evidence that the exercise of fundal pressure
may result in physical
injuries to both the mother and the foetus,
none of which was present in this matter. Further, and in
any event, the
need to apply such a drastic measure of intervention
such as fundal pressure is also not suggested if regard is had to the
time
that elapsed between the plaintiff being fully dilated and
starting to bear down, and the birth of PN. The presence of a
caput is not necessarily indicative of the application of fundal
pressure. Prof Nolte in her evidence acknowledged that with
pushing in the last stages of labour, the caput could become larger.
[62]
It was submitted on behalf of the plaintiff that an adverse inference
must be drawn from the failure of the defendant
too call Sisters
Bosman, Laminie and Dr van der Walt as witnesses. Whether such
an inference must be drawn, must be determined
in the circumstances
of each case. The inference that a witness was not called
because the party concerned feared that to
do so would expose facts
unfavourable to him or her, may be displaced by an explanation which
makes some other hypothesis a more
natural one that the party’s
fear of exposure.
[41]
Considerations which militate against the drawing of such an
inference against the defendant, are the following: The
defendant advanced an unchallenged and acceptable explanation for not
calling the witnesses. They are no longer employed
by the
defendant. Attempts made by the defendant to find them were
unsuccessful. It is unlikely that due to the passage
of time
they would have been better placed than Sister Minnaar and able to
give evidence from memory.
[63]
There is further nothing to suggest that any one of the two was
likely to give evidence contradicting Sister Minnaar,
or evidence
that may be adverse to the defendant. The importance of the
existence of the contemporaneous notes and/or the
notes made soon
after the resuscitation of PN, cannot be overlooked. These were
records kept in the ordinary course of business.
It provides
the best independent evidence of the conduct of the hospital staff
and the care given during and after the plaintiff’s
labour.
It has not been suggested that there was a real likelihood that any
of the two persons concerned would have been
able to add to the
documentary evidence, either in favour of the plaintiff or against
the defendant. The submission went
no further than that they
could have provided valuable evidence had they testified. A
suggestion that either of the two persons
may have been in a position
to give evidence favourable to the plaintiff would equally have
placed a duty on the plaintiff to call
them as a witnesses.
Accordingly, and in my view, this is not an appropriate case to
conclude that an adverse inference should
be drawn against the
defendant for the failure to call the other midwives and/or Dr van
der Walt.
[64]
In the result, and on the evidence as a whole, I find that the
evidence of the plaintiff of fundal pressure is
against the
probabilities and the weight of the evidence. It is accordingly
not necessary to consider whether fundal pressure
was a factual cause
of the intrapartum injury sustained by PN. It is a question to
which the answer is not straightforward
and would amount to
speculation. The likelihood of that having been the cause of
the injury was disputed by the defendant’s
expert, Dr Nel.
Prof Kirsten’s evidence on this aspect was founded on a number
of assumptions, one of which was that
the foetus was in an already
weakened state that would have made it more difficult for it to cope
with the interrupted blood flow
and intracranial pressure that Prof
Kirsten opined was a likely cause of the injury. As stated
earlier, there is insufficient
evidence to conclude that the foetus
was distressed in the first stage of labour, or that the labour was
prolonged and may have
caused the foetus to have been unable to cope
with the catastrophic event shortly before birth. A further
difficulty regarding
causation is that there is no evidence of
excessive fundal pressure. The plaintiff did not testify on the
extent of the pressure
she said was applied to her abdomen. In
conjunction with Prof Kirsten’s acknowledgement that there was
no physical
evidence of injuries to either the plaintiff or PN, it
leaves an insufficient basis for the assumed fact of excessive
pressure
on which Prof Kirsten’s evidence was premised.
[65]
That brings me to the resuscitation of PN after birth. The
submission advanced on behalf of the plaintiff
was that the midwives
were negligent in their efforts to resuscitate PN who was born cold,
pale, not breathing spontaneously, and
not reacting to stimuli.
Not specifically pleaded, the grounds of negligence relied upon in
argument, were developed with
the production of evidence. In
their clinical notes the midwives did not record that they had
performed cardiac massage on
the child. Sister Minnaar,
confirmed in her evidence, that if it was not recorded, it would mean
that cardiac compressions
were not performed. Prof Kirsten’s
evidence was that this meant that blood circulation was never
stimulated, and it
would have rendered the resuscitation efforts of
the midwives ineffective. The second ground was based on the
viva voce
evidence of Sister Minnaar in explaining, and in
response to questions put to her in cross-examination how facemask
ventilation
would have been performed. According to Sister
Minnaar, this manner of ventilation would be done for thirty seconds
and would
then be interrupted for thirty seconds in order for the
midwife to check the newborn’s heart rate. With reliance
on
this, and the evidence of the defendant’s expert witness Dr
Nel in cross-examination, that ventilation must continue while
the
heart rate is monitored, it was submitted that the resuscitation of
PN was poorly conducted, and that it provides an explanation
for the
persistent poor condition of PN found upon the arrival of the
paediatric doctor, Dr van der Walt, ten minutes after birth.
[66]
The basis of Prof Kirsten’s opinion that the midwives’
resuscitation was poorly performed is the fact
that, according to Dr
van der Walt’s notes, she administered a number of doses of
adrenalin to PN after her arrival in the
labour ward. This,
according to Prof Kirsten can only mean that PN had a bradycardia;
that the adrenalin was administered
to increase PN’s heartrate;
and that the Apgar scores allocated by the midwives were incorrect.
This is a factual inference
of the existence of a slow heartrate, and
is in conflict with what both the midwives and Dr van der Walt had
recorded PN’s
heartrate to have been, namely 120 beats per
minute. A heartrate of 120 beats per minute, Prof Kirsten
opined, was inconsistent
with the condition of PN at birth, and the
fact that Dr van der Walt found it necessary to administer
adrenalin. The evidence
of Prof Cooper on the other hand was in
essence to the effect that the inference that the heartrate must have
been incorrectly
recorded, is not the only inference to be drawn from
the facts. His evidence was that studies have shown that a
newborn that
had a prolonged period of severe asphyxia may still have
a heart rate of above 100. A slow heart rate is one that
is
below 80 beats per minute, and cardiac compressions are indicated
if the heartrate is below 60 beats per minute. That the
medical
personnel incorrectly recorded PN’s heartrate as Prof Kirsten
in his evidence seeks to suggest in support of his
proposition that
PN’s heartrate was at 60 beats per minute that would have
necessitated heart compression, is therefore not
the only inference
that can be drawn. Where there is a conflict in the evidence of
Prof(s) Kirsten and Cooper on this aspect,
I prefer the evidence of
the latter. It is reasoned and based on studies, which have
been performed. Prof Kirsten was
inflexible in his view with
what he regarded to be the facts on this aspect and displayed a
general unwillingness to move from
the position he took in his
report.
[67]
The suggested inference in Prof Kirsten’s evidence must be
weighed against the probability that both the
midwives and Dr van der
Walt would have made the same mistake by incorrectly recording PN’s
heartrate. An aspect that
militates against the probability of
such a mistake having been made, is that Dr van der Walt, where she
had incorrectly recorded
information in her notes, she corrected it.
This is indicative of her having applied her mind to what she
recorded, and what
she was required to record. Prof Cooper
acknowledged that it was inexplicable why Dr van der Walt chose to
administer adrenalin,
and that a heartrate of 120 beats per minute
should be adequate for perfusion. It however had the effect of
increasing the
heart rate from 120 to 180 beats per minute.
That Dr van der Walt may have thought it necessary to increase the
heartrate
under circumstances that were less than ideal, as opposed
to making an incorrect entry of the measurement of the heartrate,
cannot
be excluded in the circumstances. That the Apgar scores
may have been incorrect is raised no higher than it being a
possibility.
On Prof Kirsten’s own evidence, it is a
method of recording a newborn’s condition. It has
limitations, as it
is subject to subjective interpretation, in that
studies have shown that doctors and midwives would allocate different
scores.
I am accordingly not convinced that the evidence of
adrenalin having been administered by Dr van der Walt is sufficient
to displace
the objective evidence of a heartrate of 120 beats per
minute as recorded in the clinical notes made by both the midwives
and Dr
van der Walt.
[68]
That leaves the submission that the midwives were negligent in the
manner in which they performed the face mask
ventilation of PN for
the ten minutes until the arrival of Dr van der Walt. As
stated, it arose from the evidence of Sister
Minnaar when she was
asked in cross-examination about the manner in which face mask
ventilation is performed. Its development
as an issue with
regard to the element of negligence subsequently went no further than
a question put to Dr Nel in cross-examination
whether
“
you
stop the bagging to check the heartrate”
,
and
his response thereto of,
“
No
… never.”
It
was not canvassed as an issue for determination during the evidence
of any of the other expert witnesses who were qualified to
express an
opinion on what would constitute negligent conduct on the part of the
midwives in this regard. I am consequently
not satisfied that
the witnesses were given a full opportunity to deal with this aspect,
and that I was placed in a position to
make an informed decision.
[69]
If it is assumed in favour of the plaintiff that the resuscitation of
PN by the midwives of PN after her birth
was negligent in the manner
suggested, the question is then whether such negligence is causally
connected to the injury sustained
by PN. In view of the fact
that it is accepted that PN sustained the injury intrapartum, the
question in this context is
whether the negligent conduct relied upon
contributed to an already existing injury. Causation in delict
is comprised of
the two component elements of factual and legal
causation. Factual causation is the expression of the
relationship that must
be found to exist between the negligent act
and the injury sustained by the plaintiff in a case. The
general test for factual
causation is the “
but
for”
test. The plaintiff bears the burden of showing that,
“
but
for”
the negligent act or omission of the defendant, the injury would not
have occurred.
[42]
It is
not sufficient to demonstrate the mere possibility of a causal
connection, or to prove causation by way of speculative
evidence.
However, this does not mean that the test for causation must be
applied rigidly.
[43]
It
also does not require factual causation to be determined with
scientific precision.
[44]
The reasons for this, which is often overlooked, lies in the manner
of proof of factual causation as a requirement of the
substantive law
for delictual liability. It requires a finding based on the
legal standard of proof, and not a higher standard
that requires
proof with any scientific precision. The burden of proof and
how it is discharged is determined by the principles
of the law of
evidence. The burden of proof in a civil case requires a plaintiff to
prove his case no higher than on a balance
of probabilities.
[45]
The probabilities are determined upon the facts and an element of
experience and common sense.
[46]
Applying the standard of proof to the test for factual causation, the
enquiry is directed at identifying the more probable
of any one cause
against the backdrop of the negligent act found proved, including the
available evidence as a whole, which in
a matter such as the present,
will include, but is not limited to, expert opinion.
[70]
The first problem with a finding of factual causation in the present
matter, is that on the evidence it cannot
be said that the
interrupted ventilation necessarily meant that there was inadequate
resuscitation, thereby raising the probability
that it prolonged the
hypoxic ischemic event. This aspect was not canvassed with, or
dealt with, by any of the expert witnesses.
It leaves an
inadequate factual basis from which to draw the inference that it
contributed to PN’s injury. The second
aspect is that
there are numerous objective considerations which militate against
the probability that PN’s injury was aggravated.
It is
evident from the evidence, and acknowledged by the expert witnesses,
that at birth PN was, what was described as, in a
“
severely
compromised condition”,
and
that she sustained a severe intrapartum insult. This is
consistent with the observations of the midwives as recorded
by them
in their clinical notes. Further, the interrupted ventilation
was for a relatively short period of time during which
steps were
taken to resuscitate PN, and whereafter, upon the arrival of Dr van
der Walt, she was intubated
[47]
and adrenalin was administered. Prof Cooper’s evidence
was that the fact that PN was recorded as gasping at the time
of Dr
van der Walt’s arrival in the labour ward is consistent with
secondary apnoea. The onset of gasping from a point
of no
breathing, according to him, was indicative of an improvement in the
condition of PN that would have continued to improve
until there was
normal breathing. It is consistent with experiments and studies
performed. This, according to Prof
Cooper, was indicative of
the resuscitation attempt of the midwives having been helpful.
[71]
I am accordingly not persuaded that on the assumed fact of negligent
conduct of interrupted ventilation, it was
proved that it contributed
to an already existing severe injury to the brain of PN. In the
result I find that the plaintiff
has failed to prove, on a balance of
probabilities, causative negligence on the part of the defendant’s
medical staff at
the hospital, and accordingly the action must fail.
The defendant does not seek an order for costs against the plaintiff.
[72]
In the result the plaintiff’s claims are dismissed. There
will be no order to costs.
______________________
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT
Counsel
for the Plaintiff:
Adv. W L Munro
Adv.
T Rossi
Instructed
by: W.
Langson & Associates
23
Ralston Road
Fern
Glen
PORT
ELIZABETH
Tel:
041 - 3642997
Counsel
for the Defendant: Adv. C J Mouton
SC
Adv.
A Rawjee
Instructed
by: The
State Attorney
29
Western Road
Central
PORT
ELIZABETH
Tel:
041 - 5852687
[1]
See paras [15] and [16] below.
[2]
See para [18].
[3]
Cross on Evidence 7
th
Ed at page 489. See also Schmidt v Rademeyer Law of Evidence
at page 17 – 4 and McGregor and Another v MEC for Health
Western Cape (1258/2018)
[2020] ZASCA 89
(31 July 2020) (McGregor)
at para [21].
[4]
Ruto Flour Mills (Pty) Ltd v Adelson (1)
1958 (4)
SA 235
(T) at 237 A – B. See generally Schwikkard v van
der Merwe Principles of Evidence 3
rd
Ed at page 83 and 87.
[5]
Menday v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 569 and Coopers (South Africa) (Pty) Ltd v Deutsche
Gesellschaft Für Schädlingsbekämpfung Mbh
1976
(3) SA 352
(A) (Coopers) at 370 F – G.
[6]
Cross op cit at page 494. See also Schmidt
v Rademeyer op cit at 17 – 14.
[7]
Coopers at 371 F-H.
[8]
AM and Another v MEC for Health, Western Cape
(1258/2018)
[2020] ZASCA 89
(31 July 2020) at para [17].
[9]
Mapota v Santam Versekeringsmaatskappy Bpk
1977
(4) SA 515
(A) from 527 to 528; Stacey v Kent
1995 (3) SA 344
(E) at
348 to 349; Motor Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E)
and Representative of Lloyd’s and Others v Classic Sailing
Adventures (Pty) Ltd
2010 (4) All SA 366
(SCA) at para [60].
[10]
Stacey supra.
[11]
Coopers at 371 H.
[12]
Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another
2001 (3) SA 1188
(SCA) (Linksfield) and Oppelt
v Department of Health
2016 (1) SA 325
(CC) (Oppelt) at para [36].
[13]
MEC for Health and Social Development, Gauteng v
TM obo MM (380/2019)
[2021] ZASCA 110
(10 August 2021) at para
[125].
[14]
Oppelt supra at para [35].
[15]
MEC for Health and Social Development, Gauteng v
TM obo MM supra at para [126].
[16]
See para [38] below.
[17]
Schwikkard and van der Merwe op cit at page 99
and the authorities referred to in fn 102.
[18]
Linksfield supra at para [37].
[19]
AN v MEC for Health, Eastern Cape
[2019] 4 All SA
1
(SCA) at para [22] and MEC for Health and Social Development,
Gauteng v TM obo MM supra at para [126].
[20]
Oppelt supra at para [36].
[21]
Linksfield supra
at
para [37] and [38]; Medi-Clinic v Vermeulen
2015 (1) SA 241
(SCA) at
paras [4] to [8] and MEC for Health and Social Development, Gauteng
v TM obo MM supra at para [125].
[22]
Van Wyk v Lewis
1924 AD 438
at 447 and S v Gouws
1967 (4) SA 527
(E) at 528D. See also Schmidt and Rademeyer op
cit at page 17 – 16.
[23]
See the authorities referred to in Stacey supra
at 348 to 359 F. See also AM and Another v MEC for Health
supra at para
[17].
[24]
Stacey supra at 350 G-H.
[25]
MEC for Health, Eastern Cape v ZM obo LM
(576/2019) ZASCA 160 (14 December 2020) at paras [12] and [13].
[26]
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 E.
[27]
Van Wyk v Lewis supra at 444.
[28]
Mitchell v Dixon
1914 AD 519
at 525.
[29]
Mitchell v Dixon supra at 525; Van Wyk v Lewis
supra at 444; Blyth v Van Den Heever
1980 (1) SA 191
(A) at 221 A
and Medi-Clinic Ltd v Vermeulen
2015 (1) SA 241
(SCA) at para [33].
[30]
[1993] 4 Med LR 393.
See also Van Wyk v
Lewis supra.
[31]
See also Castell v De Greef
[1993] 3 All SA 263
(C) at 270.
[32]
The inference must be the readily apparent and
acceptable inference from a number of possible inferences. See
AA Onderlinge Assuransie Bpk v De Beer
1982 (2) SA 603
(A) at 620 E – G; Cooper and Another NNO
v Merchant
Trade Finance Ltd
2000 (3) SA
1009
(SCA) and Goliath v MEC for Health
2015 (2) SA 97
(SCA).
“
Evidence does not include
contention, submission or conjecture.”
Great River Shipping Inc v Sunnyface Marine Limited
1994 (1) SA 65
(C) at 75 I – 76 C.
[33]
Imperial Marine Co v Deiulemar Compagnia Di
Navigazione Spa
2012 (1) SA 58
(SCA) at para [24] and Motor Vehicle
Assuarance Fund v Dubwzane
1984 (11) SA 900
(A) at 706 B – D.
[34]
McGregor supra at para [21].
[35]
1998 (3) SA 64
(SCA) at 75 A-B. See also
Buthelezi V Ndaba
2013 (5) SA 437
(SCA) at para [15] and AM and
Another v MEC for Health, Western Cape supra at para [107].
[36]
Meyers v MEC of Health, Eastern Cape
2020 (3) SA
337
(SCA) at para [69].
[37]
2003 (1) SA 11
(SCA at para [5]. See also
National Employees general Insurance Company Ltd v Jagers 1984 (4)
SA 437 (E).
[38]
An episiotomy is an incision that is made at the
opening of the vagina during childbirth to assist with the delivery
of the child.
[39]
AM and Another v MEC for Health, Western Cape
supra at para [58].
[40]
See AM and Another v MEC for Health, Western Cape
supra at para [58].
[41]
Wigmore on Evidence Vol II at page 192. See
also Brand v Minister of Justice and Another
1959 (4) SA 712
(A) and
Raliphaswa v Mugivhi and Others 2008 (4) SA 154 (SCA).
[42]
Lee v Minister of Correctional Services
2013 (2)
SA 144
(CC) at para [39] to [40].
[43]
Lee v Minister of Correctional Services supra at
para [44].
[44]
Oppelt v Department of Health, Western Cape supra
at paras (36) to (38). See also Minister of Safety and
Security v Van
Duivenboden
2002 (6) SA 431
(SCA); Minister of
Finance and Others v Gore NO
[2007] (1) SA 111
(SCA) and AN obo EN v
MEC for Health, Eastern Cape
[2019] ZASCA 102
(15 August 2019) at
para [7].
[45]
Ocean Accident and Guarantee Corporation Ltd v
Koch
1963 (4) SA 147
(A) at 157 C – D and Blyth v Van den Veen
1980 (1) SA 191(A)
at 2088.
[46]
Za v Smith and Another
[2015] 3 All SA 288
(SCA)
at para [30].
[47]
The placing
of a tube down the trachea for direct supply of oxygen to the lungs.