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[2023] ZAFSHC 506
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D.F.M obo N.M v MEC for Health Free State Provincial Government (583/2017) [2023] ZAFSHC 506 (4 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 583/2017
In
the matter between:
D[…]
F[…] M[…] obo
Plaintiff
N[…]
M[…]
And
MEC
FOR HEALTH FREE STATE
Defendant
PROVINCIAL
GOVERNMENT
HEARD
ON:
14, 15, 17 MARCH 2023
& 21 JULY 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
04 DECEMBER 2023
[1]
On 19 October 2012 the plaintiff then 17 years old, gave birth to a
cerebral palsied baby boy
(the minor child) at Mofumahadi Manapo
Mopeli regional hospital (Manapo) at 18h00 approximately four hours
after the minor child
suffered foetal distress and about three hours
after the plaintiff was transferred from Elizabeth Ross hospital to
Manapo for a
caesarean section delivery.
[2]
In this action, the plaintiff in her representative capacity as the
mother and natural guardian
of the minor child seeks to hold the
defendant liable for the minor child’s condition on the premise
that it was caused by
the negligence of healthcare providers (the
defendant’s employees) who attended to the plaintiff during
labour and birth
by failing to perform a caesarean section timeously
when she experienced prolonged labour with the result that the minor
child
sustained a brain injury (hypoxic-ischemic
encephalopathy
)
culminating in cerebral palsy.
[3]
It is common cause that prenatally, the plaintiff had enjoyed a
normal pregnancy with
no congenital abnormalities recorded either
with her or the foetus. Negligence is disputed on the grounds that
the brain injury
was unforeseen, the defendant’s employees
reasonably and appropriately monitored the plaintiff’s progress
of labour
and the foetal wellbeing and when a caesarean section
became indicated, it was performed timeously.
[4]
The parties have agreed to separate and stay quantum for later
determination. The only issue I
have to adjudicate is the merits of
the claim on the basis of the respective parties’ expert
evidence including the conclusions
as expressed in the joint minutes
which
included the following experts:
Diagnostic
Radiologists Professor Andronikou and Dr Kamolane, Paediatric
Neurologists Professors Pearce and Dr Mogashoa and Gynaecologists
/
Obstetricians Drs Hofmeyer and Mbokota.
[5]
The experts largely agree that the plaintiff was provided with
substandard medical care during
labour and birth, the disagreement
pertains to whether the substandard treatment contributed to the
minor child’s brain injury.
[6]
There are
preliminary issues to be addressed in
addition to the determination of the merits: the plaintiff has
objected to the validity of
the joint minutes between the Specialist
Gynaecologists / Obstetricians Drs Hofmeyer and Mbokota on the
grounds that they were
in direct conflict with the concluded between
Dr Hofmeyer and the defendant’s erstwhile expert Dr Malebane
(the previous
joint minutes) on 28 January 2020.
[7]
It is the plaintiff’s case that joint minutes between Drs
Hofmeyer and Mbokota must be disregarded
as they are intended to
introduce evidence which is in direct conflict with the agreements
already concluded in the previous joint
minutes without providing any
reasonable explanation. On the other side, the defendant has objected
to the plaintiff’s claim
is enforceability for want of
compliance with the provisions of section 3 of the Institution of
the Legal Proceedings Against Certain Organs of State Act
(the Act).
[1]
The premise
is that pursuant to the amendment of the particulars of claim to
include an averment that the plaintiff was first
admitted at
Elizabeth Ross hospital before being transferred to Manapo, the
plaintiff failed to serve Elizabeth Ross with the notice
of her
intention to institute legal proceedings (the section 3 notice).
[8]
I am not persuaded by the plaintiff’s contentions. Joint
minutes may be repudiated provided,
a timeous warning of the intended
repudiation was given including the reasons for repudiation.
[2]
On the facts germane to this matter, the plaintiff was informed about
the defendant’s intention to repudiate the previous
joint
minutes by a letter dated 16 November 2022 approximately three months
before trial followed by a notice dated 27 February
2023 over a
month before trial. The reasons for the repudiation were indicated to
be the material contradictions between Dr Malebane
and Mbokota’s
reports. Furthermore, pursuant to the repudiation notification, the
present joint minutes were concluded and
later handed in at court as
evidence by concurrence of both the parties therefore, it cannot be
said that the plaintiff is prejudiced
thereby. Based on all these
reasons, the objection stands to be dismissed.
[9]
There is also no merit to the defendant’s assertion that the
plaintiff ought to have served
a section 3 notice on Elizabeth Ross.
The provisions of section 3 of the Act deals with the giving of the
section 3 notice of intended
legal proceedings by a creditor against
an organ of state as a debtor. Besides the fact that Elizabeth Ross
hospital is not an
organ of state the amendment of the particulars of
claim was not intended to add Elizabeth Ross hospital as a party to
the proceedings.
The defendant is vicariously liable for the
negligent conduct of its employees including those stationed at the
Elizabeth Ross
hospital. This objection is also dismissed.
[10]
The plaintiff’s case rested on the testimony of Professor Anna
Getruida Wilheminah Nolte and Dr Franelize
Hofmeyer whilst the
defendant called Dr Meshack Mbokota and Sister Mmaselo Mirriam
Motaung as witnesses.
[11]
All the witnesses, testified based on the medical records namely, the
Road Health Chart, Maternity Register,
Maternity Case Record,
Neonatal records and the Partogram (a graphical recording of the
condition of both the mother and foetus
during labour).
[3]
[12]
Both the plaintiff’s witnesses are of the view that the
plaintiff was provided with substandard medical
care during labour
and birth and also failed to record the maternal and foetal
observations as required by the Maternity Guidelines
especially when
it became apparent that there were abnormalities of the foetal heart
rate which essentially indicate foetal distress.
Hereunder is a
summary of
the evidence proffered by the
respective parties.
[13]
Professor Nolte is a retired nursing lecturer. She has lectured in
both basic and advanced midwifery. Presently
she is teaching
midwifery on a part time basis at Netcare and Life Health hospitals.
About 90% of her former students were from
public hospitals therefore
she knows what is going on in public hospitals.
[14]
She explained that labour involves latent and active phases. During
the latent phase, the cervix is expected
to dilate from 2 to 4 cm
within ten hours. A latent phase which goes beyond ten hours is
regarded as prolonged labour in that instance,
maternal observations
must be done four hourly and the foetal observations two hourly.
During the active phase the cervix dilates
from 5 to 10 centimetres
at one centimetre per hour. The blood vessels from the mother
to the placenta are blocked off during
strong contractions as a
result, there is no oxygen coming from the mother going to the foetus
and when this stage of labour is
prolonged the foetus is deprived of
oxygen therefore foetal heart rate observations must be performed
every two hours to monitor
the condition of the foetus. A
cardiotocograph (CTG)
[4]
is
crucial in assessing whether the foetus is getting enough oxygen and
functions sufficiently.
[15]
She pointed out that when the plaintiff was admitted at Elizabeth
Ross on 18 October 2012 at 12h35, she was
already in spontaneous
labour including painful contractions and raptured membranes. Her
cervix was two centimetres dilated and
the foetal heartrate was a
healthy 120 to 140 beats per minute (bpm) therefore, maternal
observations had to be performed four
hourly and foetal heart
observations hourly as required by the Maternity Guidelines. Instead,
the next maternal observations were
only carried out some five hours
later at 17h50. At this stage the cervix was still 2cm dilated,
foetal heart rate still at almost
the same range and the fluid
draining from the raptured membranes was still clear.
[16]
She stated that the CTG for the period 19h22 and 19h19 showed a
deceleration of a foetal heartrate
indicating some abnormalities
requiring a CTG to have ben continued for an extended time in order
to assess the foetal wellbeing
but for unknown reasons it was
stopped.
[17]
Ten hours later at 21h00 a vaginal examination revealed that
labour had not progressed. The plaintiff
was still 2cm dilated. The
graph for the CTG is not attached to the records. On the next morning
at 03h20, the plaintiff was in
prolonged latent phase of labour
because although she was experiencing stronger contractions she was
still 2cm dilated. Fifteen
(15) hours had passed since she was in
latent labour. The graph for the CTG is again not attached to the
records.
[18]
Thirty minutes later at 03h55, Pethidine was administered for pain
relief. She was examined by the
doctor at 6h00 and it was discovered
that she had progressed to just 4cm dilation. There is no proof that
the CTG was performed
because there is no graph regarding the
readings recorded. The plaintiff was at an active phase of labour now
therefore it was
expected that she will dilate at least 1cm per hour
and if two hours went by without the expected progress she would be
referred
to another hospital.
[19]
Professor Nolte could not decipher the entries recorded at 07h15
however it is clear that at
09h25 the
plaintiff had still not been referred to another hospital. At this
stage she was only 6cm dilated even though she should
have been 7cm
dilated. A CTG also showed a deceleration of a foetal heartrate and
in order to determine whether there was foetal
compromise arising
from the decreased variability, the CTG should have been continued
for longer but it was stopped.
[20]
The next CTG which showed decreased variability lasting about 60
seconds was at 12h24 and although a single deceleration
of a foetal
heartrate does not on its own indicate foetal compromise it is still
an abnormality which requires constant monitoring
by a CTG. In this
case there is no proof that CTG monitoring was continued. At 13h00 it
is recorded that the progress of labour
was good as the plaintiff had
progressed to 9cm dilation as a result, she was transferred to the
delivery room however, an hour
later at 14h00 it is recorded that
progress was poor. The plaintiff did not progress to 10cm, the foetal
heartrate was irregular
ranging between 109 to 225 bpm.
[21]
It was her testimony that a reading of 109 is too slow and 225bpm is
too fast the foetal heartrate was thus varying between
Bradycardia (a
slow heart rate condition) and Tachycardia (too fast heart rate) both
abnormal indicators that the oxygenation of
the foetus was
compromised and indeed the foetus was struggling as it had to be
resuscitated by means of oxygen per mask on the
plaintiff.
[22]
Despite this catastrophic event, there is no evidence of continuous
monitoring with the CTG. The Plaintiff continued
to suffer from
prolonged labour with strong contractions but no progression. The
records reflect that the baby “
seemed stuck, not ascending
when asked to bear down.
” According to Professor Nolte,
there is no record of what was being done at that time except that
the doctor was notified.
[23]
At 15h00 progress was still poor, the dilation was still at 9 cm but
it was only at 15h10 that a decision to transfer
the plaintiff to
Manapo for caesarean section was made. Reasons for the transfer
included foetal distress resulting from Cephalopelvic
Disproportion
(CPD).
[5]
[24]
The plaintiff was admitted at Manapo at 16h50. The examination at
16h55 revealed that her cervix was swollen, the urine
was also tinted
with blood which is an indicator that her bladder had sustained
injuries due to the prolonged labour. At 18h10
there was a failed
vacuum delivery and this is despite the fact that the reason for
transfer from Elizabeth Ross was CPD which
is contraindicated for a
vacuum delivery. Expectedly, there were more decelerations indicating
foetal distress. Again, no indication
that a CTG was performed. The
minor child was ultimately born at 18h50.
[25]
It was her testimony that, the fact that this was the plaintiff’s
first pregnancy, that
she was a teenager with a small stature
weighing only 49 kilograms and 146 centimetres tall she was at high
risk of developing
complications associated with prolonged labour
such as CPD. The eventual outcome was therefore foreseeable.
[26]
In response to the defendant’s assertion that the small
abnormalities seen on the CTG cannot
be relied upon because they were
not done continually, Professor Nolte reiterated that CTG monitoring
was pertinent under these
circumstances and due to the absence of the
CTG recordings, it is not possible to determine what the actual
foetal condition was
at a specific time.
[27]
Dr Hofmeyer, corroborated Professor Nolte’s conclusions that
the plaintiff’s small
body stature and this being a teenage
pregnancy are signs which ought to have alerted the health care
providers that there might
be difficulty with the foetus passing
though the birth canal due to size disproportions. According to the
National Guidelines,
active intervention is required once the latent
phase exceeds eight hours.
[28]
On the available facts already at 13h00 on 19 October 2021 the
plaintiff had already crossed
the line which required the staff to
take action to expedite labour which include administering Oxytocin.
According to the CTG,
foetal deterioration started as early as 14h00
at Elizabeth Ross. The doctor should have considered an expedited
delivery to avert
the brain injury. Had they transferred and
performed emergency section earlier the foetal brain injury would
have been avoided.
Instead, there were further delays at Manapo
created by a failed attempt to perform a vacuum which is
contraindicated where labour
is prolonged by CPD which is a clear
indicator of obstruction.
[29]
It is also unknown why caesarean section was not performed at
Elizabeth Ross as the transfer
to another hospital also contributed
in the delay of the caesarean section.
[30]
During cross-examination she was adamant the plaintiff’s high
risk of developing birth
complications was foreseeable and that when
it became clear that the plaintiff was suffering from prolonged
labour, the defendant’s
employees failed to expedite the labour
as a result thereof, the minor child sustained the hypoxic brain
injury.
[31]
Dr Meshack Mbokota conceded that the medical care rendered by the
defendant’s employees was of substandard
quality but denies
that the it contributed to the minor child’s brain injury.
He also confirmed that as at 14h00 the
foetus was in distress long
enough for a hypoxic insult to occur but not an injury. He explained
that an insult simply means that
“a blow has occurred”
whereas with an injury “a bruise” resulting from the blow
has manifested.
[32]
He also conceded that the reason for the referral from Elizabeth Ross
to Manapo was due to the foetus not
doing well but insisted that
intervening measures such a vacuum extraction was implemented and the
fact that it failed to does
not mean it was contraindicated.
[33]
It was put to him that expediting the caesarean section amongst other
interventions would have prevented
the injury, his response what no
one can know the outcome of any action and it is for the same reason
that the defendant’s
employees only took the decision to
transfer after 15h00 when complications arose. To determine the
presence of CPD, the status
of the contractions and foetus together
with a full bladder are factors that must be ruled out first because
if for instance, the
bladder is not emptied it can obstruct the
progress of labour.
[34]
He told the court that the delay of the caesarean section was not
extreme and even if the plaintiff was transferred
earlier or the
caesarean section was performed earlier, the minor child’s
brain injury would still have occurred though the
effects would have
been less severe.
[35]
Sister Motaung is a registered midwife. She is presently employed at
Manapo. On 19 October 2012, she was
on duty when the plaintiff
arrived by ambulance at 17h10 after having been transferred from
Elizabeth Ross.
[36]
It was her testimony that she had no independent recollection of the
events but she confirmed the contents
of the medical records namely
that, the plaintiff was handed over to her by her colleague Sister
Moqhai at 16h50. She examined
the plaintiff at 17h55 and then called
the doctor on duty but he was busy with other patients. By 18h10 the
plaintiff still had
no effort to push as a result a vacuum was
performed by the attending doctor in her presence at 18h20 but it
failed. The minor
child was thereafter delivered by caesarean
section.
[37]
Under cross-examination, she confirmed that in the transfer records
from Elizabeth Ross the reasons for the
transfer were stated which
included foetal distress and CPD requiring delivery by caesarean
section. As this was an emergency,
the referring doctor contacts the
receiving doctor and alert him of the inbound patient and the reasons
for the transfer. This
is to ensure that time is not wasted by
investigating the history of the patient but she could not remember
if this was done in
this case.
[38]
She could also not remember whether when she contacted the doctor
upon the plaintiff’s admission she
informed the doctor about
the reasons why the plaintiff was transferred to Manapo in
particular, foetal distress and that the baby
“seems stuck”
as recorded in the medical records. She could not recall t
he
reason why the vacuum failed
.
[39]
For the plaintiff succeed with the claim, she must
prove
on a balance of preponderance that the brain injury sustained by the
minor child is attributable to the negligence
of
the defendant’s employees in that, they failed to exercise
reasonable intra-partum care to avert the brain damage and that
a
reasonable person in the position of the defendant’s employees
would have continuously monitored the plaintiff and the
foetus and
thereafter expedited the labour when it became clear that the
plaintiff experienced prolonged labour and the foetus
was struggling,
at least by 14h00.
[6]
[40]
The plaintiff’s
assertion
that the defendant’s employees neglected its obligations to
render proper intra-partum medical care to the plaintiff
and thus
negligent is clear from the medical records which its contents are
indisputable. They reveal that there was no continuous
CTG monitoring
as required by the Maternity Guidelines at the pertinent periods
where there were decelerations of the foetus’
heartrate. The
paucity in the CTG evidence does not assist the defendant as it is
the responsibility of the defendant’s employees
to keep proper
medical records.
[7]
[41]
The plaintiff’s version that had the defendant’s
employees expedited the labour by
performing the caesarean section
timeously the minor child would have been saved from sustaining the
brain injury is in my view
corroborated by the plaintiff’s
experts. They rendered a convincing and succinct version regarding
the shortcomings of the
medical care provided by the defendant’s
employees and- their impact on the foetus thereby resulting in the
minor child being
born cerebral palsied.
[42]
On the other side, the defendant’s case was simply
unconvincing, contradictory and implausible.
Dr Mbokota was not
an honest witness. In his testimony he insisted that even if the
plaintiff
was
transferred earlier or the caesarean section was performed earlier,
the brain injury would still have occurred and this is despite
the
fact that he had agreed with Dr Hofmeyer in the joint minutes
[8]
that
the
minor child:
“
probably
suffered a hypoxic brain injury as a result of the prolonged
intra-partum period at Elizabeth Ross and Manapo hospitals
on 18 and
19 October 2012, and that this has probably resulted in the
clinically evident neonatal encephalopathy and cerebral palsy
of Neo
Motaung which has been confirmed by expert radiological reports and
expert paediatric neurologists. The timing depicted
in the records
provided indicates that this was probably an avoidable birth asphyxia
had delivery occurred earlier in the labour
process through the
adherence to dictated treatment and referral guidelines.”
[43]
Similarly, sister Motaung’ s memory seemed to fail her when her
version was tested under
cross-examination to determine the truth in
it. She could not remember whether the receiving doctor was informed
about the urgency
and reasons for the plaintiff’s transfer to
Manapo. She could not remember what was the reason for the extraction
vacuum
to fail and this is despite the fact that on her own version,
the plaintiff was handed over to her on admission, she examined her,
called the doctor, prepared the plaintiff for the vacuum extraction
and was also present when it was performed and subsequently
failed.
[44]
Experts are for the benefit of the court. Their duty is to assist the
court to come to a just
and fair decision by providing objective and
unbiased information relating to their respective specialist area and
not to assume
the role of a legal representative by stating facts and
even circumvent facts to suit a particular litigant. I am not
satisfied
that the defendant’s witnesses were objective and
unbiased for that reason, I cannot not rely on their testimony. I
find
that the
plaintiff’s version is to be preferred as
opposed to the defendant’s.
[45]
It is important to point out that the plaintiff is not required to
establish the causal link
between negligence and
the actions of the defendant’s employees with certainty but a
probability.
[9]
On the facts
germane to this matter, it is indisputable that both the plaintiff
and the foetus had no prenatal or postnatal congenital
abnormalities
prior to labour and that the brain injury suffered by the minor child
occurred intra-partum for that reason, I cannot
think of any other
reason that could have caused the brain injury but for the
defendant’s negligence. As a consequence of
the brain injury,
the minor child has been rendered cerebral palsied. The plaintiff’s
claim succeeds.
[46]
On the aspect of costs, I have
found no reason for the departure from the general rule that costs
follow the result and due to the
complexity of this claim the costs
of two counsel are
warranted.
[47]
The following order is granted:
ORDER
1.
The defendant is liable for payment of 100% of
the proven or agreed plaintiff’s damages in her representative
capacity as
the mother and natural guardian of the minor child who
was born cerebral palsied on 19 October 2012.
2.
The defendant shall pay, subject to the
discretion of the Taxing Master, the plaintiff’s taxed or
agreed party and party costs
including:
2.1.
the reasonable costs of obtaining the medico-legal reports,
qualifying and
reservation fees
if any
, of the following
experts:
2.1.1. Dr Gericke,
specialist paediatrician;
2.1.2. Dr Hofmeyer,
specialist gynaecologist;
2.1.3. Dr
Andronikou, specialist radiologist;
2.1.4. Professor
Nolte, nursing expert; and
2.1.5. Dr Pearce,
paediatric neurologist.
2.2.
the reasonable costs of the holding of and drafting of joint meetings
if any
, of the following experts:
2.2.1. Dr Hofmeyer,
specialist gynaecologist;
2.2.2. Dr
Andronikou, specialist radiologist;
2.2.3. Professor
Nolte, nursing expert; and
2.2.4. Dr Pearce,
paediatric neurologist.
2.3.
the costs of two counsel, into the trust of the plaintiff’s
attorneys:
ACCOUNT HOLDER:
MOKODUO ERASMUS
DAVIDSON ATTORNEYS
NAME & BRANCH:
FIRST NATIONAL BANK,
ROSEBANK BRANCH
BRANCH CODE:
253305
ACCOUNT NUMBER:
6[…]
3.
The determination of the plaintiff’s
quantum is postponed
sine die
.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of Plaintiff:
Adv.
GJ Strydom
Instructed
by:
M.E.D.
Attorneys
C/O
McIntyre van der Post
BLOEMFONTEIN
Counsel
on behalf of Defendant:
Adv.
M. Salie
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
[1]
Act 40 of 2002.
[2]
MEC
Health 7 Social Development Gauteng v MM obo OM
[2021]
ZA SCA 128.
[3]
Exhibit “B”.
[4]
An electronic device connected to a mother’s belly during
labour. It measures foetal heartrate and
contractions
to assess the foetal wellbeing or compromise.
[5]
A child birth complication which impedes the natural delivery of a
baby due to the baby’s head being too big to come through
the
mother’s pelvis
.
[6]
Goliath
v Members of the Executive Council for Health, Easter Cape
2015
(2) SA 97
SCA.
[7]
Section
13
of the
National Health Act No,
61
of 2003
.
[8]
See
para 12.
[9]
International
Shipping Co Ltd v Bentley
1990
(1) ZASCA
138
at 700E-H.