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[2023] ZAKZPHC 157
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Member of the Executive Council for Health, KwaZulu-Natal v Mbatha (AR 403/2021) [2023] ZAKZPHC 157 (30 November 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, PIETERMARITZBURG
CASE NO: AR 403/2021
In the matter between:
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR HEALTH,
KWAZULU-NATAL
APPELLANT
and
SIMANGELE SIBAHLE
MBATHA
DEFENDANT
ORDER
Having read the papers
and after hearing counsel, the following order is made:
In the circumstances, I
make the following order:
1.
The appeal succeeds only in so far as it
relates to costs.
2.
The order of the court a quo is set aside
and is replaced with the following:
‘
1
The defendant is ordered to pay all damage as proved of agreed for
N[...] S[...], arising out of the negligence of the defendant’s
employees during his birth on 21 June 2012.
2. The defendant is
ordered to pay the plaintiff’s costs of suite on a party and
party scale.
3. The matter is
adjourned sine die for the determination of quantum.
3. The appellant is
ordered to pay the costs of the appeal.
JUDGMENT
Date Delivered:
Masipa J et K Pillay J
et R Singh AJ concurring:
Introduction
[1]
The appellant, a Member of the Executive Council for Health,
KwaZulu-Natal appeals
against the judgment of Ncube J. delivered on
11 February 2020. The appellant is in charge of and in control of
Hlabisa Hospital,
where the cause of action in this matter arose. The
respondent is the mother and natural guardian of a minor child N[...]
L[...]
S[...] ('NLS'). She claimed damages against the hospital for
medical negligence arising from a deficiency that arose during the
birth of NLS on 21 June 2012. Subsequently, NLS was diagnosed with
spastic quadriplegic cerebral patsy.
[2]
When the matter came before the trial court, the parties agreed as
common cause that:
(a) the minor child
suffered from spastic quadriplegtic cerebral palsy, a permanent
position which was grade 5 meaning that it was
severe;
(b) the condition is
accompanied by the presence of hypoxic ischemic encephalopathy (HIE)
which is brain damage due to lack of oxygen;
(c) the size of the minor
child’s head was normal at birth;
(d) the brain damage is
shown in the MRI scan and, as agreed to between the radiologists,
indicates that the injury was of a mixed
nature showing partial
prolonged and acute profound damage occurring in term infants which
means that the child was then at full
gestation;
(e) a partial prolonged
injury occurs over time, in most cases over several hours;
(f) the respondent fell
in the morning before she went to hospital;
(g) the respondent was
admitted to the hospital on 18 June 2012 and gave birth three days
later on 21 June 2012;
(h) on admission the
respondent was found to be a primigravida in that it was her first
pregnancy, her blood pressure was moderately
raised and as an
indication of high blood pressure, the respondent had swollen feet;
(i) she was diagnosed
with pre-eclampsia, she was treated with Aldomet to lower her blood
pressure and Cytotec was administered
to induce labour;
(j) Cytotec increased the
frequency of contractions to speed up the baby’s delivery; and
(k) the baby was
delivered by means of vacuum extraction
[3]
At the time of the incident, the respondent, aged 21, resided in in
Xula village,
Mtubatuba and attended antenatal clinics at Sipho Zungu
Clinic.
The facts
[4]
On 19 June 2012, around 10h00 the respondent tripped and fell while
at home and was
rendered unconscious. She could not specify the
duration of her unconsciousness. Being eight months pregnant, she
managed to turn
and landed on her back during the fall sustaining a
tear on her knee which became swollen. He upper body was stiff for a
while.
Approximately six months earlier, while pregnant, she
consulted a traditional healer but discontinued using traditional
medicine
shortly thereafter.
[5]
Pursuant to the fall, a neighbour assisted her to the clinic. Despite
feeling no pain,
she sensed an unusual heartbeat. She arrived at the
clinic around 16h30, when on examination a nurse informed her of her
elevated
blood pressure. An ambulance was called and arrived at
night. The respondent was transferred to Hlabisa hospital arriving at
20h00.
She was admitted to the maternity ward. Upon admission, Dr
Phumlani Theophilus Cele, noted a painful and swollen knee and
conducted
a CTG scan.
[6]
Nothing eventful occurred on 20 June 2012. The morning of 21 June
2012 saw the respondent
moved to another ward where Sister Thobile
Rose Mbatha managed her labor. At about 03h00, a nurse inserted a
tablet to manage her
labour due to escalating blood pressure was
elevating further. Contractions ensued.
[7]
Sister Mbatha monitored the respondent’s active labour at
two-hour intervals,
assessing the foetal heart rate with a Doppler
machine. A vaginal examination revealed seven centimetres dilation.
The decision
was made to monitor the foetal heart rate at half-hourly
intervals. According to the respondent Cardiotacogram (CTG) was used
to
monitor her for ten minutes every four hours.
[8]
The respondent avers that Dr Cele suggested a caesarean section, but
the hospital
staff denied his presence at the hospital that day. Dr
Mkhulise, an intern doctor, supervised Sister Mngomezulu but was not
involved
in the delivery. According to the respondent, when she
started to feel pain, Dr Cele conducted a vaginal examination and
applied
a CTG belt inducing labour with Cytotec. The respondent’s
membranes ruptured at 12h00.
[9]
Sister Mbatha reported rapid labour progression, dilating the
respondent by 14h30.
The foetal heart rate was 130 beats per minute.
Between 14h30 and 15h00, the respondent pushed but the maternal
effort was poor.
Sister Mngomezulu, an advanced midwife was notified.
[10]
Sister Annie Thembile Mngomezulu confirmed poor maternal effort and
decided on a vacuum delivery,
which Sister Madonsela corroborated.
Sister Mngomezulu ensure all prerequisites were met and chose a size
five vacuum cup for the
respondent’s first delivery. The baby
was delivered with the second pull. The foetal heart rate was within
limits and the
mother’s blood pressure was fine. Contrary to
the respondent’s version, Sister Mngomezulu’s evidence
was that
she called Dr Mkhulise to supervise.
[11]
Sister Mngomezulu, stated that she did not need a doctor’s
supervision. She followed all
the necessary protocols for a vacuum
delivery. The vacuum cup slipped once and was re-applied. NLS was
delivered with the second
pull and had a chignon which is cause by
the pressure applied on the scalp by a vacuum cup. NLS had a caput or
swelling of the
head of 2+. This is a normal and is caused when the
baby moves through the pelvis. Caput is graded in severity from nil
to three.
completed and signed documents, including the labour
summary, reflecting NLS’s satisfactory condition on delivery.
The respondent’s
version differs, claiming Dr Cele’s
involvement and multiple unsuccessful attempts to before her son’s
delivery.
[12]
The respondent conceded during cross-examination that her evidence on
the delivery was hearsay.
The first time she saw NLS he appeared very
fragile and his head appeared swollen. The doctor said that NLS’s
head was deformed
because his blood had gone to the head.
Accordingly, that NLS would have to stay in the hospital or could
die. Dr Cele said that
the nurses had injured the baby. NLS did not
cry after birth and the doctor performed an oronasal suction to his
nose and he then
cried. They stayed in hospital for a month. At the
commencement of the trial, NLS was aged six and could not speak, sit
or do anything
for himself.
[13]
According to Sister Madonsela, NLS weighed 3460 grams on delivery,
had a heart rate above 100
beats a minute and Apgar score of 6/10 a
minute and10/10 at five minutes. She and Sister Mngomezulu jointly
estimated the Apgar
score. He required oxygen due to blue
colouration. It seemed to be common cause that the oronasal suction
was performed and NLS
was normalized after five minutes although it
was disputed as to who conducted it. She mentioned that there was no
need for resuscitation.
According to her, when NLS was examined after
birth, there was no abnormalities and NLS was fine when he was taken
to the post-natal
ward. She accepted that a well person would not be
place on continuous oxygen. She had no comment on a report that the
baby was
seen with a cracked skull.
[14]
Sister Madonsela did not observe cephalohematoma on NLS despite the
medical evidence confirming
this and therefore could not explain how
it occurred. she only observed that NLS had a chignon as was
testified by Sister Mngomezulu.
She denied any negligence on the part
of the hospital staff. While she denied falsification of hospital
records, she admitted uncertainty
as to when the hospital record was
completed.
[15]
Sister Madonsela disputed that she did not examine NLS before
recording him as ‘normal’.
Her description of NLS’s
moro reflex was did not accord with that of Prof Davies. According to
Prof Davies, NLS was so badly
brain damaged, that he would not have
had a moro reflex. It was suggested that she simply ticked the box on
the form all at once
and failed to record the chignon as an
abnormality, amongst others.
[16]
Sister Ngubane a basic midwife recorded the foetal heart rate. Sister
Madonsela was not present
when sister Ngubane was progressing labour.
She only responded when Sister Ngubane shouted for help and so did
Sister Mngomezulu,
and Dr Mkhulise. She did not comment on the
allegation that the hospital managers recorded that the baby was
delivered by a medical
officer and a midwife.
[17]
Sister Mngomezulu had 15 years’ experience when NLS was
delivered. The foetal heart rate
was within limits and the mother’s
blood pressure was fine. Having followed the necessary vacuum
delivery procedure, her
evidence was that the entire process took two
minutes and the pull was easy.
[18]
According to the Guidelines
[1]
,
as an advanced midwife, she did not need a doctor’s
supervision. She personally completed and signed the hospital
records,
having carried out the vacuum extraction. She denied any
falsification of the records and also denied that a nurse reported an
injury to NLS or a cracking skull. It was clear during
cross-examination that she did not have an independent recollection
of the
delivery of NLS and relied on hospital records. despite
lacking independent recollection, stands by the hospital records and
denies
any wrongdoing.
[19]
Dr Cele, attended to the respondent on 4 May 2012, 25 May 2012 and
again on 19 June 2012. He
saw again her again on 22 June 2012 when he
reviewed her post-delivery hypertension. He disavowed the
respondent’s testimony
that he attended to her vacuum
extraction, received a call during the process and left the delivery
to a nurse. Extraction is sensitive
and sterile. He would not have
answered a call during such a procedure.
[20]
Responding to the judge a quo’s inquiry, Dr Cele acknowledged
that no medical officers
were present during NLS’s delivery. He
contended that an advanced midwife would have sufficed, and any
reference to a medical
officer in the hospital records could not have
been Dr Mkhulise, as she was not a medical officer at the time.
[21]
On 9 September 2015, the respondent consulted Dr NC Kapongo, a
paediatrician employed by the
appellant at the appellant’s
instance. He examined NLS who was three years old at the time. Dr
Kapongo who is not fluent
in Zulu communicated in English with the
respondent. Despite the respondent disputing the presence of an
interpreter, nurse CS
Mhlongo assisted with interpretation.
[22]
Dr Kapongo elicited the circumstances surrounding the respondent’s
fall within revealed
that she had lost consciousness at some point.
Her family took her to a traditional healer who advised her to go to
a hospital.
Dr Kapongo focused on how the collapse could have
affected the baby, speculating on various medical scenarios. The
respondent mentioned
being unconscious for approximately 30 minutes.
He speculated on different medical scenarios that could have had an
impact on the
child.
[23]
The respondent’s version of walking to the nearby clinic
contradicted what she told Dr
Kapongo. Dr Kapongo encountered
difficulty eliciting details about the fall, as the respondent
repeatedly stated that she could
not remember. Discrepancies between
Dr Kapongo’s record and Dr McLynn’s report regarding the
respondent’s visit
to a traditional healer were acknowledged,
with Dr Kapongo conceding a potential misunderstanding. Dr Kapongo’s
findings
on NLS were recorded as an insult to the brain, with the
timing of the perinatal insult deemed almost impossible to pinpoint.
[24]
Dr Kapongo, in retrospect, discredited the version of a well-baby
with a normal Apgar score at
birth, considering the severity of
observed neurological sequelae. He questioned the delay in taking the
respondent to a nearby
hospital after her fall, positing its
potential impact on the results.
[25]
Dr McLynn, the respondent’s expert gynaecologist in private
practice, formerly worked as
an obstetrician in public practice. He
highlighted Guidelines for Maternity Care in South Africa,
emphasizing risk cases such as
young mothers, first-time pregnancies
(primigravida), and conditions like high blood pressure or bleeding
before labour. In such
instances, the midwife would be expected to
inform a medical officer (a doctor) who would examine the patient and
formulate a plan
for admission and/or delivery.
[26]
The respondent’s first pregnancy, coupled with increased risk
due to raised blood pressure,
prompted concern about potential
complications such as eclampsia. Dr McLynn criticized the three-day
delay in inducing labour,
the use of Cytotec, stating that its
brittle and unpredictable action required proper observation. He
argued that a caesarean section
would have been more appropriate.
[27]
Dr McLynn contested Dr Kolis’s suggestion that the respondent’s
collapse at home
explained the poor outcome. He considered it
speculative, proposing alternatives such as supraventricular
tachycardia or hypotensive
syndrome. Dr Kara, the respondent’s
paediatrician, noted that blood pressure readings were normal
initially, then abnormal,
leading to antihypertensive medication. Dr
McLynn criticized the use of Cytotec, stating that its brittle and
unpredictable action
required proper observation. He argued against
inducing labour with high blood pressure, advocating for a caesarean
section instead.
[28]
Dr McLynn emphasized the importance of continuous monitoring during
labour, citing the insufficiently
conducted CTG recordings in this
case. He argued that the records, including the CTG, did not support
the respondent’s claim
that the fall caused the brain damage.
He posited that the problem occurred during the second stage of
labour. Despite inadequate
CTG recordings, he maintained that the
evidence did not align with the fall causing the brain damage. Dr
McLynn expressed suspicion
about the vacuum delivery process, citing
cephalohematoma
[2]
and swelling
of the head. Dr Koll deemed the vacuum delivery normal, asserting it
was not responsible for the brain damage. His
assessment of NLS
excluded intrapartum cause for hypoxia.
[29]
According to Dr McLynn there are protocols when the baby is delivered
through vacuum extraction.
There are risks of damage to the baby’s
head. If the pull is prolonged, it may create great damage to the
tissue resulting
in sub-galeal haemorrhage. Midwifery or nursing
staff are trained to deal with normal uncomplicated deliveries. He
criticized the
doctor leaving the delivery process to the nurses
stating that it was unacceptable for a doctor to be absent
approximately 2 hours.
While he accepted that midwives can assess
whether vacuum delivery is feasible, he said that it an exception for
a midwife to carry
out a vacuum delivery.
[30]
In a joint minute by Drs McLynn and Koll agreed that the first stage
of labour was adequately
monitored. Dr McLynn argued that correct
protocols would have made it impossible for the application of the
cup and the delivery
period to take two minutes. This was because
among others, a pull is conducted when the mother contracts and in
normal labour,
the contractions are every three minutes. According to
Dr Koll, less than two minutes was sufficient.
[31]
Dr McLynn expressed concern about NLS not crying after delivery, the
doctor inserting a tube
in his nose, and the subsequent diagnosis of
cephalohematoma cause by the mere use of a vacuum which created a
Chignon. Secondly,
if the second stage of labour was delayed, there
would be caput (soft tissue swelling) from the mother’s
pushing. The cephalohematoma
was only identified a day later. The
records reveal that the neonatal doctor suspected that there was
hypoxia brain injury to the
baby’s brain. He suggested other
potential causes aside from vacuum delivery, such as forceps delivery
or a slip and fall.
[32]
Drs Koll and McLynn agreed on inadequate recordings of clinical
examinations and CTG procedures.
Dr McLynn criticized the insertion
of Cytotec, given its potential adverse effects and the lack of clear
control in pregnancy.
He acknowledged the expected results of the CTG
but argued that that defects in the procedure could have missed
abnormalities in
the baby. He however did not strictly stick to a
sentinel event. He accepted also that there are multiple potential
causal pathways
which leads to cerebral palsy in infants but said
that this did not negate the fact that intrapartum hypoxia plays a
significant
degree.
[33]
Dr McLynn partially agreed with Dr Koll’s findings,
acknowledging the difficulty in proposing
an accurate sequence of
events or determining the exact timing of NLS’s brain injury
based on incomplete evidence. He suggested
that MRI reports could
provide information on the location and timing of the damage and
deferred this to a radiologist. Dr McLynn
believed that the delivery
process was contributory to the outcome. Due to incomplete records as
a result of poor record keeping.
Dr Koll found it challenging to
comment on the timeliness or adherence to proper standards for
neonatal resuscitation. Dr McLynn
noted the immediate application of
nasal oxygen to NLS, suggesting that, despite appearing well at birth
according to medical records,
NLS might have needed to be better
based on paediatric history.
[34]
Dr Kara, after examining NLS, diagnosed him with spastic quadriplegic
cerebral palsy of grade
5. He associated this with injuries close to
birth and noted dyskinetic cerebral palsy as well. Dr Kara believed
that the injuries
occurred close to the time of birth, indicated by
subsequent changes in NLS’s head size. The CTG reading before
labour showed
no abnormalities. He argued against inducing labour
when foetal comprise is suspected, pointing out that the respondent
was allowed
to continue carrying the child for three more days,
indicating no concern for foetal compromise. He questioned the
likelihood of
the fall causing a convulsion lasting for a sufficient
duration to result in an injury to the foetus.
[35]
Like other experts, Dr Kara expressed concern about the need for more
records, mainly the sparse
information on the foetal heart rate and
the absence of information on procedures followed. He emphasized the
importance of consistent
record-keeping and monitoring according to
protocols to identify and address potential risks during labour. In a
joint minute Dr
Kara and Prof. Davies agreed that there were no known
antenatal risk factors for cerebral palsy. Apgar scores were recorded
as
6/8 by Dr Kara and 6/10 by Prof Davies. They both agreed that
Apgar scores were in insolation not confirming or refuting
intrapartum
asphyxia. Also, that Apgar scores may be elevated by
resuscitation.
[36]
Like Dr McLynn, they note that oxygen was administered and that the
nursing records showed that
on arrival to the nursery, NLS had
difficulty breathing and had cephalohematoma which was not in keeping
with a normal baby. They
noted normal blood pressure and foetal heart
rate until the day labour was induced. They both agreed that there
was no doubt that
NLS had severe onset of a moderately severe
neonatal encephalopathy lasting several days. Prof. Davies
highlighted the absence
of a sentinel event and any evidence
suggesting suboptimal intrapartum obstertric care. They both
recommended referring the conduct
and management of labour to an
expert obstetrician. The childhood MRI scans recorded evidence of
hypoxic ischemic injury. Notably,
none of the parties called a
radiologist to explain the results of the MRI.
[37]
Dr Kara noted some evidence of acute, profound injury and possible
injury and possible hypoglycaemia.
Prof. Davies disputed the presence
of recorded hypoglycaemia on hospital records. They both concluded
that since the respondent’s
placenta was normal, hypoxic
ischemia was the likely cause of the encephalopathy. Dr Kara
considered induction of labour, vacuum
extraction, and resuscitation
at birth as indicating a high risk of intrapartum insult. Both
experts agreed that the injury likely
occurred during labour, with
Prof. Davies emphasizing the absence of another cause for cerebral
palsy. They pointed out that the
incomplete records hindered
commenting on whether required standards were followed, and evidence
of substandard neonatal resuscitation
could have compounded the
outcome.
[38]
Dr Kara raised concerns about the inconsistency between delivery
records describing a satisfactory
condition and the neonatal nurse’s
report of difficulty breathing, resuscitation, and cephalohematoma.
He argued that if
a baby was delivered in perfect condition, it was
unlikely to develop cerebral palsy four years later. In Dr Kara’s
opinion,
induction of labour, vacuum extraction and resuscitation at
birth indicate a high risk of intrapartum insults. The findings of
the MRI, and the presence of moderately several days with a
reasonable exclusion of encephalopathy at birth made it probable that
the injury occurred during labour. This was a sign of neurological
compromise. Prof. Davies added that incomplete records made
it
difficult to determine the exact timing of the brain injury.
[39]
Both Dr Kara and Prof. Davies agreed that hypoxic-ischemic
encephalopathy occurs predominantly
during labour. Dr Kara theorized
that the injury likely happened after the induction of labour. While
not sure, it was considered
probable. Prof. Davies concurred that the
injury occurred during the intrapartum period, and although not sure,
it was a probable
explanation.
Litigation history
[40]
The trial addressed two key questions: whether the appellant’s
hospital staff was negligent
in the treatment of the respondent
during labour, failing to monitor her and NLS adequately, and if so,
whether such negligence
caused the child’s brain injury
resulting in cerebral palsy. The court, relying on Blyth v Van den
Heever
[3]
, outlined the
negligence issue around determining the factual cause of the child’s
condition and whether negligence on the
part of the appellant could
have prevented it by exercising reasonable professional care and
skill.
[41]
Both parties presented evidence, including hospital records, during
the trial. However, the court
a quo found the records could have been
more helpful due to incompleteness and contradictions. Dr McLynn’s
testimony contradicted
the prima facie picture of normal childbirth
presented by the records. The court found his testimony reliable and
honest, while
Dr Koll’s credibility was questioned for
attributing the brain injury to the respondent’s fall. Dr
Koll’s opinion
was rejected because, on examination, no harm to
the foetus was detected.
[42]
Inconsistencies in hospital records led the court to suspect
falsification to cover up unrecorded
events. Discrepancies included
conflicting accounts of vacuum extraction, the absence of caput in
labour graphs but its presence
in vacuum delivery records, and
contradictions in NLS’s post-birth condition. The court a quo
found that the most junior
nurse monitored the respondent for three
hours during labour, contrary to guidelines requiring more frequent
monitoring. Proper
monitoring could have detected foetal distress,
allowing consideration of alternative delivery methods.
[43]
The court concluded that proper monitoring could have revealed NLS’s
distress, prompting
timely action. Instead, the respondent was left
in the care of nursing staff and an unqualified Dr Mkhulise. The
court noted the
respondent’s high-risk status and her induction
with Cytotec, suggesting she should have been attended by a medical
officer
or suitably qualified midwife.
[44]
The court held the appellant liable for costs on an attorney and
client scale, citing the appellant's
untenable position and the
persistence in trial despite the weaknesses in their case. The court
a quo found the appellant was ‘flogging
a dead horse’. It
stated that the appellant’s expert, Prof Davies had conceded
that the appellant’s expert, Prof
Davies had conceded that the
appellant’s case had to fail. Also, because the Appellant’s
Counsel had during trial frequently
stood the matter down to take
instructions ‘presumably on possible settlement’ and the
appellant had persisted with
the trial. The court a quo found also
that parties and their legal representatives are under a duty to act
reasonably and put an
end to proceedings ‘when it’s clear
as to which side the scale tilts’.
[45]
In considering leave to appeal, the court a quo that the grounds of
appeal mainly concerned factual
findings. It addressed the issue of
cephalohematoma development, attributing it to difficult vacuum
extraction. Additionally, that
while Dr Michel’s statement was
that a medical officer ordered and performed by Sister Mngomezulu.
The court a quo rejected
Dr Koll’s evidence that sentinel event
causing acute profound injury was the loss of consciousness was not
recorded on the
clinic or hospital records. The loss of consciousness
was not recorded by Dr Kapongo. It rejected Dr Koll’s claim
that the
sentinel event causing acute, profound injury was the
respondent’s fall and loss of consciousness.
[46]
The court emphasised the principles in R v Dhlumayo
[4]
,
stating that the trial court’s conclusion is presumed correct
unless there is a misdirection of facts. The appellant failed
to show
reasonable prospects of success on appeal, leading to dismissing the
application for leave to appeal. The Supreme Court
of Appeal granted
leave to appeal.
Submissions
[47]
The respondent’s particulars of claim alleged that the medical
personnel were negligent,
leading to the child’s cerebral palsy
and permanent impairment. The critical issues before the court were
whether the hospital
personnel were negligent in labour treatment,
particularly in monitoring the respondent and NLS. If negligence was
established,
the second issue was whether this negligence caused
NLS’s injury and subsequent cerebral palsy.
[48]
The appellant argued that the trial court prematurely concluded that
settling the matter early
would have been prudent. The respondent
countered, suggesting that the appellant’s counsel considered
settling upon hearing
the respondent's incomplete oral evidence on
the first trial day. Arising from a discussion which was held in
chambers with both
counsel, the appellant contends that it was clear
that the trial judge accepted the untested and incomplete oral
evidence of the
respondent being that she heard one of the nurses
mentioning that the baby had a cracked skull which allegation was
said to be
to have been proven as false or to be an exaggeration. The
appellant denied requesting a stand-down for settlement instructions,
asserting that the only delay was due to the non-arrival of its
expert, Dr Koll to assist in preparing for the cross-examination
of
Dr McLynn.
[49]
The appellant contested the trial court's characterization of
hospital records as incomplete
and contradictory. It argued that the
court’s suggestion of poor record-keeping leading to potential
falsification lacked
evidence. The appellant asserted that the trial
court overlooked Dr Koll’s evidence regarding the respondent's
earlier fall
and its consequences. It criticised the court for
accepting a non-normal delivery without considering contradictory
evidence from
its witnesses.
[50]
The appellant claimed there was no evidence of record falsification,
emphasising the testimony
of its nurses. It contended that NLS was
normal at birth despite required resuscitation. Dr Koll’s
evidence that diagnosing
Hypoxic Ischemic Encephalopathy (HIE)
immediately after birth is challenging was presented to counter the
court a quo’s conclusions.
The appellant argued that the trial
court misunderstood the CTG recording, asserting that the evidence
indicated normalcy. The
court a quo was criticised for
misinterpreting Dr McLynn’s statements about CTG recordings and
for misunderstanding the Guidelines
for Maternity Care in South
Africa
[5]
regarding the
necessity of a qualified medical officer during childbirth.
[51]
The appellant submitted that there was no evidence before the court a
quo to suggest that NLS’s
condition at birth was
unsatisfactory. The appellant disputed the court’s rejection of
the midwives’ evidence and Dr
Koll’s assessment of
cephalohematoma. It criticised the court for accepting Dr McLynn’s
views on cephalohematoma and
moulding without considering contrary
evidence by Dr Koll whose evidence was that where there is no
moulding, it reassures them
that vacuum will work. The court a quo
was also criticised for accepting Dr McLynn’s evidence that
cephalohematoma was induced
by trauma and was associated with vacuum
and forceps delivery which was disputed by both Dr Koll and Prof
Davies who said that
it could also be seen in normal child birth. The
appellant relied on the Dorland’s Illustrated Medical
Dictionary, 2
nd
Edition at p330 where cephalohematoma is
defined as ‘a usually benign condition seen frequently in the
new born as a result
of bone trauma.
[52]
The appellant asserted that the court failed to grasp Dr Kara and
Prof Davies’ views on
the timing of the incident. It
highlighted the concession by Dr Kara regarding the potential impact
of the mother’s fall,
aligning with Dr Koll’s stance. The
appellant emphasized the importance of the respondent’s fall,
arguing that her
symptoms were consistent with NLS’s injury, as
explained by Dr Kara, the MRI scan reports that it was a mixed
pattern injury
of prolonged and acute profound hypoxic ischemic
injury. As there was no evidence of foetal distress, the appellant
claimed that
the evidence supported the fall as the cause of NLS’s
injury, impacting the brain’s compensatory system.
The Test for Medical
Negligence
[53]
The test in medical negligence cases is well established and need not
be repeated. The issues
are:
(i)
“What factually was the cause of the ultimate condition of [the
plaintiff];
(ii)
Did negligence on the part of the respondent [defendant] cause or
materially contribute
to this condition.”
[54]
The test is on a balance of probabilities, namely the court has to
find which is the most likely
explanation.
[55]
The respondent contends that poor monitoring and record-keeping by
the appellant were the most
likely causes of NLS’s condition.
This failure, she argues, led to undetected foetal distress, with the
administration of
Cytotec for labour induction identified as a
probable cause. The respondent asserts that the appellant did not
effectively challenge
her evidence, particularly regarding the harm
to NLS resulting from her fall and lying on her back, remains largely
uncontradicted
and should not be undermined through belated arguments
around credibility.
Applicable Law
[56]
The appellant places significant emphasis on the difficulty of
pinpointing the time of the injury.
However, in MEC for Health,
Limpopo v LWM obo DM
[6]
dealing
with a medical negligence claim resulting in cerebral palsy arising
from child birth the following was stated:
“
In
my opinion, it is fallacious to posit that where a woman in labour
has not been monitored by hospital personnel at all during
the most
critical stage of her labour, the MEC responsible for the relevant
hospital should escape liability arising from the negligence
of its
employees purely on the basis that the exact timing of the hypoxic
injury of an acute profound nature cannot be ascertained.
To do so
would be to ignore uncontested evidence that, on probabilities, shows
a link between the negligence and the harm that
ensued.”
[57]
In
S
v Hadebe
,
[7]
the court outlined well-established principles governing appeals
against factual findings. Absent demonstrable misdirection, the
trial
court’s findings are presumed correct and should only be
disregarded if the evidence shows them to be clearly wrong.
The
respondent contends that the court of appeal should defer to the
trial court’s factual findings, given its advantageous
position
to assess witnesses credibility. These principles extend to
credibility findings by the trial court, and absent irregularities
or
misdirection, the court of appeal is bound by such findings unless
convinced of their apparent incorrectness. The respondent
asserts
that the reasoning of the court a quo is sound.
[58]
In
Buthelezi
v Ndaba
[8]
,
the court found the application of the
res
ipsa loquitur
maxim inappropriate in cases involving surgical intervention due to
the complexity of the human body’s reactions. While accepted
as
correct, its application depends on the specific facts of each case.
[59]
Louw v Patel
[9]
, emphasised the
importance of logical reasoning in evaluating expert evidence. The
court is not obliged to absolve a defendant
based on expert opinions
that lack logical foundation. Conflicting expert views must be
considered, and a court must weigh expert
evidence as a whole.
[60]
The appellant’s argument that the evidence of the respondent’s
expert witnesses should
be discounted labelling them as hired guns
cannot be sustained. On the evidence nothing suggested that they were
unreliable and
sought to mislead the court for the benefit of the
respondent. Accordingly, reliance
on
Motswai v Road Accident Fund
[10]
is misplaced. Notably, in the current matter, there were expert
witnesses for both the appellant and the respondent and joint
pre-trial minutes delivered. Therefore, the risk, of a lack of
impartiality, if any, does not arise. Courts would not be able to
assess medical risks without expert evidence; however, it is
ultimately the duty of the court to assess such evidence and
determine
on a balance of probabilities whether a case has been made
out by a plaintiff.
[61]
The role of expert witnesses was eloquently stated in A M and Another
v MEC Health
[11]
, Western Cape
where it was held that expert witnesses provide the court with
abstract general knowledge in their area of discipline
to enable the
court to understand the issues arising in litigation including
generally accepted practices and they provide their
own inferences
and opinions on the issue and furnish grounds for drawing those
inferences. The court will not blindfoldly accept
the evidence and
will have to make its own factual findings.
[62]
Given the facts in this case and the evidence provided by experts,
their role in supplying relevant
information is evident. The court a
quo was responsible for evaluating this evidence and making decisions
based on what it deemed
as probable under the circumstances.
Liability in negligence by hospital staff requires proof that damages
resulted from their
negligence. A negligent omission is only unlawful
when which the law regards as sufficient to give rise to a legal duty
to prevent
harm.
[12]
[63]
In
AN
v MEC for Health, Eastern Cape
[13]
it was stated that ‘
to
be liable for loss the act or omission must have been wrongful and
negligent and must have caused the loss. Wrongfulness involves
the
breach of a legal duty. It must therefore be proven that the wrongful
conduct (the act or omission) of the appellant’s
staff caused
the baby to suffer brain damage’.
Accordingly, in order for the respondent to succeed, in her claim,
she must satisfy the requirements of causation being in respect
of
both factual causation and legal causation. To succeed, the
respondent must establish both factual and legal causation. The
‘but-for’ test, as outlined in Oppelt v Department of
Health, Western Cape
[14]
,
involves determining whether, but for the defendant’s wrongful
conduct, the harm would have ensued. The test is based on
probability, not certainty.
[64]
In ZA v Smith and Another
[15]
,
the court stated that in cases of conduct by omission, the enquiry on
whether but for the defendant’s wrongful and negligent
failure
to take reasonable steps, the plaintiff’s loss would have
ensued. It is trite that the ‘but for’ test
is based on
common sense and the plaintiff must establish on a balance of
probabilities and not with certainty that but for the
defendant’s
wrongful and negligent conduct, the harm would not have ensued.
[65]
In
AN
v MEC for Health, Eastern Cape
[16]
,
the
court set out the test for factual causation as being ‘whether
the act or omission of the defendant has been proved to
have caused
or materially contributed to the harm suffered. Where the defendant
has negligently breached a legal duty and the plaintiff
has suffered
harm, it must still be proved that the breach is what caused the harm
suffered.’
[66]
Goliath
v MEC for Health, Eastern Cape
[17]
,
states that professional including nurses are expected to perform
their duties with the requisite skill and diligence exercised
by
members of their profession. In the performance of their duties,
nurses owe a legal duty to patients in their care to prevent
harm.
Consequently, their failure to do so is wrongful and where any damage
ensues as a result of such conduct, liability will
result.
[67]
In
MEC
for Health, Western Cape v Qole
[18]
,
it was held that: “…
The
legal duty owed by the medical staff at the various health facilities
to the respondent and her baby entailed that they adhere
to the
general level of skill and diligence possessed and exercised at the
time by members of the branch of the profession to which
they belong.
They have no duty to provide the highest possible degree of
professional skill. Only reasonable care and skill was
required. The
respondent had to prove, through credible and persuasive evidence
that the doctors and nurses failed to adhere to
the required
standards.”
[68]
In
M
v MEC for Health, Eastern Cape
[19]
,
where the appellant was unable to locate the source and timing of
hypoxia ischemia due to poor and deceitful record keeping by
the
hospital staff, and after considering expert evidence that the
absence of proper monitoring would create a risk to the appellant
and
the foetus, the court found that factual causation had been proven.
It found on the probabilities that the minor child would
not have
been injured had the mother been properly monitored. All expert
witnesses who testified in this matter agreed that there
was a
failure to keep proper records which would have assisted them and the
court to determine whether there had been adequate
monitoring of the
respondent and the minor child and to determine the time, if any of
the sentinel event which resulted in the
injury to the minor child.
In view of their failure to keep proper record, it is unclear as to
when the injury occurred.
Analysis
The fall
[69]
The respondent’s fall on 18 June 2012 is undisputed. According
to her, the only injury
she sustained was a bruised knee. The clinic
examination revealed elevated blood pressure. However, neither the
clinic nor hospital
records indicated any harm or risk to the foetus.
The suspicion of potential harm arises only in the reports of Dr
Kapongo and
later Dr Koll. Prof Davies initially rejected this view
but later attempted to align himself with Dr Kapongo’s
perspective,
contradicting his stance.
[70]
Dr McLynn identified two possibilities, supraventricular tachycardia
and hypotensive syndrome,
as potential causes of the respondent’s
fall. However, he had not encountered instances where either
condition resulted in
brain damage to the baby. Dr Kara, in contrast,
expressed the opinion that even if the fall caused a convulsion
lasting 20 minutes,
it must be demonstrated that the cardiovascular
collapse lasted over 20 minutes, which he rejected in this case.
Importantly, Drs
Kara and McLynn’s opinions were well-informed,
unlike the vague and speculative statements by Dr Koll and Prof
Davies, who
asserted the fall was the sentinel event without
supporting evidence. Upon admission to the hospital, the respondent’s
blood
pressure was elevated, but the CTG report indicated regular
foetal heart rate, remaining normal until the delivery on 21 June
2012.
Dr Kara’s uncontested testimony was that labour would not
have been induced if a foetal compromise were suspected. The court
a
quo’s acceptance that the fall was not the cause of the injury
was well-found and stands unassailable.
The monitoring
[71]
The high-risk nature of the respondent’s labour was
uncontested. As a primigravida with
elevated blood pressure, she
received medication for treatment. Dr McLynn, in detailed testimony,
criticised the use of Cytotec
and outline associated risks. Given
these risks, continuous monitoring was deemed necessary, which,
unfortunately, was lacking.
With proper monitoring, hospital staff
could have made informed decisions, potentially contributed to the
missed opportunities
for monitoring potential risks. While the CTG
results indicated a normal foetal heart rate, Dr McLynn noted that
this did not rule
out other foetal abnormalities.
[72]
Considering the shared concern about insufficient records, Dr Kara
thought there needed to be
evidence of appropriate labour management.
Both Dr Kara and Prof Davies deferred to an obstetrician, with Drs
Koll and McLynn are
the relevant authorities. However, Dr Koll
offered no assistance, and Dr McLynn’s testimony indicated poor
labour management.
The court a quo rightly raised concerns about
leaving the monitoring of such a high-risk primigravida with elevated
blood pressure
in the care of a junior nurse, especially when Cytotec
induced labour. In light of these circumstances, I concur with the
court
a quo’s conclusion that there was inadequate monitoring
and poor labour management.
The delivery
[73]
There is no dispute that the CTG was not adequately used as a
monitoring tool. Although the information
from the CTG showed no
signs of foetal distress, there is a disagreement about whether Dr
Cele or Sister Mngomezulu conducted the
delivery. Dr McLynn’s
opinion, accepted by the court a quo, was that, given the evident
high risk in this case, a medical
officer should have delivered the
baby rather than an experienced midwife. The continuous risk of
oxygen deficit to the baby from
contractions due to the use of
Cytotec, coupled with inadequate CTG use, hindered the recording of
the foetal heart rate. The reliability
of Apgar scores was also
questioned, given that they were estimated and possibly influenced by
resuscitation. The court a quo rightly
acknowledged the inadequacy of
monitoring in this high-risk situation.
[74]
I accept similarly to the court a quo, Dr Kara and Prof Davies that
the baby was delivered by
sister Mngomezulu. This is however
concerning when the risks involved are considered. There was a
continuous risk of oxygen deficit
to the baby arising from
contractions as a result of the use of Cytotec. According to Dr
McLynn due to inadequate use of CTG, it
was not helpful to provide
adequate recording of the foetal heart rate. The Apgar scores of 9/10
were clearly not reliable for
two reasons firstly, it was conceded by
sister Madonsela that these were recorded from an estimated she made
with Sister Mngomezulu
and secondly, these could have been affected
by resuscitation. Additionally, Dr Kara and Prof Davies agreed that
Apgar scores were
in isolation not coming or refuting intrapartum
asphyxia.
[75]
According to sister Mngomezulu, recorded the delivery as
satisfactory. Notably, this is contradicted
by Dr Kara and Prof
Davis. While they could not point at a sentinel event, they agree
that this occurred during the second stage
of labour. They deferred
to a radiologist to identify the exact timing of the brain injury.
However, party deemed it necessary
to call a radiologist. This was
only necessary to identify the exact timing of the sentinel event.
[76]
Despite the delivery being recorded as satisfactory, the neonatal
nurse noted difficulty in breathing
and cephalohematoma, with records
indicating resuscitation. Dr Kara and Prof Davies concurred that the
average head size at birth,
coupled with postnatal microcephaly,
favoured an injury close to delivery. They agreed that no cause of
cerebral palsy other than
intrapartum hypoxic-ischemia was present
and that intrapartum injury was more common than antepartum or
postnatal.
[77]
The facts of this case resemble those in
M
v MEC for Health, Eastern Cape
[20]
where the experts disagreed because the respondent was unable to
locate the source and timing of hypoxic ischemia This was due
to poor
record keeping by the hospital staff. It is no surprise that the
court a quo found that there had been falsification of
the record to
cover up the negligence. The Apgar scores indicated the child’s
condition as satisfactory yet he was described
as having difficulty
to breath. Sister Madonsela moro reflex was disputed by Prof Davies
whose evidence was that NLS was so badly
damaged that he could not
have moro reflex. Labour graphs showing no caput yet vacuum delivery
records show 3+ caput. While the
NLS’s condition after birth is
recorded as satisfactory, he was given oxygen. While I may not label
the record keeping as
falsified, it is indeed questionable.
[78]
The appellant argues that there is no evidence that here was foetal
distress during labour or
delivery. This is clearly not supported by
the fact NLS did not cry after birth and was given oxygen. Even Dr
Kapongo accepts the
respondent’s version of a floppy infant as
discrediting the version of a well-baby with normal Apgar at birth.
The only distinction
is that he seeks to attribute this to her fall
when is no factual evidence to support this.
[79]
After considering expert evidence, it is evident that the absence of
proper monitoring, coupled
with poor record-keeping during labour,
resulted in NLS’s injury, presenting as cerebral palsy. The
court a quo correctly
found factual causation established. The
probabilities suggest that proper monitoring would have prevented the
minor child’s
injury. On a balance of probabilities, the
respondent successfully demonstrated the alleged lack of monitoring,
sub-optimal care,
or poor management during the delivery process.
In Chamber events
[80]
The appellant’s raised an issue that the presiding judge in the
court a quo called them
in chambers and expressed his opinion that
the it did not have a valid defence and was surprised that the
appellant that the child
had a cracked skull. It was contended that
the judge had accepted the respondent’s untested and incomplete
oral evidence
as the matter was at this stage part heard. The
allegations proved to be false during evidence. In reply, the
respondent submitted
that it was improper for the appellant to raise
issues discussed in chambers. Secondly that if there had been
concerns about the
judge’s impartially this should have been
raised by following numerous appropriate avenues. It submitted also
that this was
raised ex-post facto clutching straws.
[81]
I agree with the respondent in this regard. It is indeed improper for
the appellant to raise
issues discussed in chambers which are
typically confidential. Furthermore, if the appellant had concerns
about the judge’s
impartiality, proper procedures should have
been followed. It smells of desperation that the appellant continued
to subject itself
to the trail proceedings and only when it does not
succeed cries fowl. The court finds no merit in this point, affirming
that the
appellant, represented by experienced counsel, could have
taken appropriate steps to protect its interest during the trial if
indeed
he was of the view that the impartiality of the court a quo
was compromised. Accordingly, I see no merit in this point.
Costs
[82]
The court a quo awarded costs against the appellant on the attorney
and client scale, characterising
the appellant’s actions as
“flogging a dead horse,” especially in light of Prof
Davies’ concession in the
joint minute with Dr Kara. The court
also considered the matter as standing down several times for
settlement, with the appellant
insisting that on proceeding with its
defence.
[83]
The appellate court may only interfere with the court a quo’s
cost award if it finds that
the lower court was influenced by wrong
principles or misdirection of the facts. The Constitutional Court in
Limpopo
Legal Solutions & another v Eskom Holdings Soc Ltd
[21]
outlined the limited grounds for interference. The court emphasized
that an appellate court should only intervene if the lower
court’s
discretion were not exercised judicially, was influenced by wrong
principles, or reached a decision that could not
reasonably have been
made with the proper consideration of all relevant facts and
principles.
[84]
In
Public
Protector v South African Reserve Bank
[22]
the court considered the circumstances in which an award of costs on
an attorney and client scale should be granted, as being where
there
is fraudulent, dishonest, vexatious conduct and conduct that amount
to an abuse of court process. The court in
Plastic
Converters Association of South Africa (PCASA) v National Union of
Mineworkers Union of South Africa and others
[23]
found that such a cost order is extraordinary and should be reserved
for cases where a litigant conducted itself in a clear and
indubitably vexatious and reprehensible [manner]. Such an award is
intended to be very punitive and indicative of extreme abuse.
[85]
While the appellant’s argument appears to be convincing, as to
the punitive costs order
by the court
a quo
, the test on
appeal as stated in
Public Protector
para 144 is that:
‘
Ordinarily,
it would be inappropriate for an appeal court to interfere in the
exercise of a true discretion, unless it is satisfied
that the
discretion was not exercised judicially, the discretion was
influenced by wrong principles, or a misdirection on the facts,
or
the decision reached could not reasonably have been made by a court
properly directing itself to all the relevant facts and
principles.
There must have been a material misdirection on the part of the lower
court in order for an appeal court to interfere.
It is not
sufficient, on appeal against a costs order, simply to show that the
lower court’s order was wrong.’
[86]
On the merits of this case, this court believes that the award for a
punitive costs order was
influenced by wrong principles or an
apparent misdirection by the court a quo. However, the court sees no
reason why costs should
not follow the result.
Order
[87]
In the circumstances, I make the following order:
1.
The appeal succeeds only in so far as it
relates to costs.
2.
The order of the court a quo is set aside
and is replaced with the following:
‘
1
The defendant is ordered to pay all damages as proved of agreed for
N[...] S[...],
arising out of the negligence of the defendant’s
employees during his birth on 21 June 2012.
2.
The defendant is ordered to pay the plaintiff’s costs of suite
on a party
and party scale.
3.
The matter is adjourned sine die for the determination of quantum.
3.
The appellant is ordered to pay the costs
of the appeal.
M B Masipa J
K PILLAY J
I agree
R SINGH AJ
I agree
Matter heard on :
17 March 2023
Judgment delivered on:
30 November 2023
APPEARANCES:
For
the Appellant:
Mr
RBG Choudree SC and Ms K Shazi
Instructed
by:
The
Office of the State Attorney (KwaZulu-Natal)
6
th
Floor, Metropolitan Life Building
391
Anton Lembede Street
DURBAN
For
the Respondent:
Mr
V I Gajoo SC and Mr M A Oliff
Instructed
by:
Justice
Reichlin Ramsamy Attorneys Inc.
Suite
3, 72 Richefond Circle
Umhlanga
Ridge
DURBAN
c/o:
AK Essack, Morgan Naidoo & Co.
[1]
See Third Edition of the Guidelines for Maternity Care in South
Africa: A Manual for Clinic, Community Health Centres and District
Hospitals published by the Department of Health in 2007 at Chapter
4headed abnormalities of the second Stage of labour.
[2]
A swelling of the head due to a collection of blood below periosteum
of the skull induced by trauma either of using vacuum or
trauma of
letting the baby fall on concrete floor on the head.
[3]
Blyth v
Van den Heever
1980 (1) SA 191
(A) at 196.
[4]
R v
Dhlumayo and Another
1948 (2) SA 677
(A) at 706.
[5]
Guidelines for Maternity Care, (Department of Health RSA, 2007, 3
rd
Edition at p52).
[6]
MEC for
Health, Limpopo v LWM obo DM
[2022] ZASCA 146.
[7]
S v
Hadebe
1997 (2) SACR 641
(SCA) at 645 E-F
[8]
Buthelezi
v Ndaba
2013 (5) SA 437
SCA at 443 B-E, relying on Van Wyk v Lewis
1924 AD
438
at 462.
[9]
Louw v
Patel
[2023] ZASCA 22
at para 19-21.
[10]
Motswai
v Road Accident Fund
2013 (3) SA 8 (GSJ).
[11]
A M and Another v MEC Health, Western Cape
[2020] ZASCA 89
;
2021 (3)
SA 337
(SCA) para 17.
[12]
See
AM
obo KM v The Member of the Executive Council for Health, Eastern
Cape
[2018] ZASCA 141
at para 18.
[13]
AN v
MEC for Health, Eastern Cape
[2019] ZASCA 102
at par 3.
[14]
Oppelt
v Head: Health, Department of Health, Provincial Administration:
Western Cape,
[2015] ZACC 33
;
2016 (1) SA 325
(CC);
2015 (12) BCLR 1471
(CC) para
37.
[15]
ZA v Smith and Another
[2015] ZASCA 75
;
2015 (4) SA 574
(SCA) ;
[2015] All SA 288
(SCA) para 30.
[16]
Fn 12 at par 4.
[17]
Goliath v MEC for Health, Eastern Cape
[2014] ZASCA 182
;
2015 (2) SA
97
(SCA) at para 8.
[18]
MEC for
Health, Western Cape v Qole
[2018] ZASCA 132
at par 37.
[19]
M v MEC
for Health, Eastern Cape
[2018] ZASCA 141
at para 43.
[20]
Fn 18 above.
[21]
Limpopo
Legal Solutions & another v Eskom Holdings Soc Ltd
2017 (12) BCLR 1497
(CC) para 20.
[22]
Public
Protector v South African Reserve Bank
2019 (6) SA 253
(CC) para 8.
[23]
Plastic
Converters Association of South Africa (PCASA) v National Union of
Mineworkers Union of South Africa & others
(JA112/14)
[2016] ZALAC 39
; (2016) 37 ILJ 2815 (LAC).