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2023
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[2023] ZAECBHC 26
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A.M obo L.M v Member of the Executive Council for Health, Eastern Cape Province (586/2017) [2023] ZAECBHC 26 (30 August 2023)
THE EASTERN CAPE
DIVSION OF THE HIGH COURT
OF SOUTH AFRICA,
BHISHO
JUDGMENT
Not Reportable
Case no: 586/2017
In
the matter between:
A.M.
obo L.M.
APPLICANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE PROVINCE
RESPONDENT
Date heard
: 25
August 2023
Date delivered
:
This judgment was handed down electronically by email delivery to the
attorneys for the parties and to the Registrar, for lodging
on the
court file. The date of delivery shall be deemed to be 09h30 on 30
August 2023.
ORDER
1.
The applicant is granted leave to appeal to
the Supreme Court of Appeal, against the whole of the judgment and
orders of this court
dated 25 April 2023.
2.
The costs of the application for leave to
appeal shall be costs in the appeal.
JUDGMENT
Goosen J:
[1]
I
shall refer to the parties as at trial. The plaintiff seeks leave to
appeal against an order
[1]
dismissing an action for damages arising due to negligent medical
care during the birth of the plaintiff’s child. The plaintiff’s
claim was dismissed on the basis that she had failed to establish
that the negligent failure to monitor the foetus during labour,
caused the hypoxic ischaemic brain injury suffered by her child.
[2]
The plaintiff advances several grounds upon
which it is said that there is a reasonable prospect that another
court would come to
a different conclusion. It is unnecessary to
traverse all of them in turn. They are framed in terms suggesting
that this court’s
characterization of the nature of the hypoxic
ischemic injury follows a so-called ‘traditional view’ of
the causes
of basal ganglia thalamus pattern (BGT pattern) injury
suffered by the child. This approach is said to have been
overtaken
by more recent scientific thinking which points to BGT
pattern injury arising in the absence of identifiable sentinel
events. It
was argued that this court had erred in adopting the
so-called traditional conception, whereas it ought to have adopted
the more
recent reasoning exemplified in the study by Professor
Smith, to which reference was made at trial. This latter approach, so
the
argument went, has been endorsed by the Supreme Court of Appeal.
[3]
This distinction between a ‘traditional’
and more ‘recent’ approach is, in my view, of
little or no
assistance in relation to the facts of the case. It
featured throughout the trial. As indicated in the main judgment, the
‘reformulation’
caused Prof Andronikou, who testified for
the plaintiff, to redefine the terms ‘acute’ or ‘sudden’
to mean
something that might occur over a prolonged period of time.
Professor Andronikou testified that the Magnetic Resonance Image
(MRI)
depicted BGT injury pattern, that is, an injury to the deep
tissues of the brain. Professors Davies, Anthony and Andronikou
explained
that such injury pattern occurs when there is a global
insult to the brain, that is one resulting in either complete or near
complete
occlusion of oxygenated blood to the brain. None of the
experts could, however, say when the injury occurred. Nor why it had
occurred.
There was no evidence of a sentinel event, as has been
fully described in medical literature and in the evidence.
[4]
Significantly, Prof Andronikou did not
accept that the injury pattern exhibited signs of repeated short
duration occlusions, as
might be expected from prolonged ischemic
insults. In the light of this clear evidence, I remain unpersuaded
that the characterization
of the nature of the insult suffered by the
foetus is assailable. That, however, is not the end of the matter.
The question remains
whether the conclusion that the failure to
monitor was not the factual cause of the injury, might reasonably be
overturned on appeal.
[5]
Mr McKelvey marshalled in aid, the judgment
of
MEC for Health, Limpopo Provincial
Government v L W M obo D M
[2022]
ZASCA146 (the
D M
matter). That judgment, as I understood the argument, accepted the
opinion of Professor Smith in the study referred to, and therefore,
that the SCA had endorsed the basis of the opinions expressed by the
plaintiff’s experts in this matter. For that reason,
this court
ought to grant leave to appeal.
[6]
I accept that the Supreme Court of Appeal
has expressed itself in terms which, apparently, support the views of
Prof Smith. I would
point out, however, that a careful reading of the
judgment, indicates, that the court found that the factual cause of
the injury
was the delay in delivering the baby after there were
clear indicators that immediate intervention was required. At
paragraph 55
of the judgment, Molemela JA (as she then was) states
the finding of the court in the following terms:
‘
To
sum up in respect of the respondent’s delictual claim, it is
clear from the conspectus of all the medical evidence that
there was
a lack of adequate monitoring at the most critical stage of the
respondent’s labour. This conduct fell far short
of the very
guidelines intended for public hospitals and clinics in South Africa.
In the face of slow progress in labour and the
presence of thick
meconium, there was no intervention on the part of hospital staff to
expedite the delivery of DM to avoid the
eventuation of harm.
However, it must be borne in mind that the doctor was summoned for
the first time at 01h30. Based on the evidence,
it is more probable
than not that had the doctor who had been summoned arrived, he would,
upon noting the unfavourable maternal
and a foetal condition and the
fact that the respondent was full dilated, have delivered D M by
forceps within 20-25 minutes of
that doctors arrival. This means that
D M would probably have been delivered by 02h15. It follows that D
M’s brain injury
would not have eventuated if ger delivery had
been expedited, which is the intervention spelt out in the maternity
guidelines confirmed
by Dr Murray.’
[7]
The court went on in paragraph 57 of the
judgment, to express some support for Prof Smith's reasoning. That
dictum, however, does
not alter the finding as to the factual cause
of injury. I would point out two further aspects. The first is that
Prof Smith testified
in the
DM
matter. His expert evidence was before the court. Prof Smith did not
testify in this matter. Other experts sought to place reliance
upon
his published study. I dealt with the shortcomings of this evidence
in the main judgement. Those observations need not be
repeated. The
second is that in the present matter the facts did not establish a
case for intervention and the failure to intervene,
which was the
factual basis of the ten case studies referenced in the Smith study.
Those facts, in my view, would need to be inferred
in order to allow
for the further inferential reasoning to conclude that but-for the
failure to monitor, the injury would not have
occurred.
[8]
Having said that, I accept that in the
light of the
DM
judgment more broadly construed, and the treatment of probabilities
that might flow from that judgment, it is reasonably possible
that an
appeal court would come to a different conclusion on the question of
factual causation. For that reason alone leave to
appeal must be
granted. I accept that the matter is one of considerable importance
to the plaintiff. I also accept that the controversy
regarding prior
and current descriptions of hypoxic ischemic brain injuries and their
causes, requires consideration in light of
the evidence in this
matter. It follows that I am persuaded to grant leave to
appeal. I consider it appropriate that leave
be granted to the
Supreme Court of Appeal.
[9]
I make the following order:
1.
The applicant is granted leave to appeal to
the Supreme Court of Appeal, against the whole of the judgment and
orders of this court
dated 25 April 2023.
2.
The costs of the application for leave to
appeal shall be costs in the appeal.
G GOOSEN
JUDGE OF THE HIGH
COURT
Appearances
For
the plaintiff / applicant:
K
McKelvey SC
Instructed
by:
Enzo
Meyers Attorneys
East
London.
For
the defendant / respondent:
B
Dyke SC
Instructed
by:
Smith
Tabata Attorneys
East
London.
[1]
Judgment
in the action was delivered on 25 April 2023. The application for
leave to appeal was timeously filed and, by arrangement
with the
parties representatives, the application for leave to appeal was
conducted on a virtual platform on 25 August 2023.