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[2023] ZAECBHC 30
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P.B obo I.S v Member of the Executive Council Responsible for Health in Eastern Cape (242/2020) [2023] ZAECBHC 30 (3 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No: 242/2020
In
the matter between:
PB
obo IS
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL
DEFENDANT
RESPONSIBLE
FOR HEALTH IN THE EASTERN CAPE
JUDGMENT
Bloem
J
[1]
The
plaintiff, in her personal and representative capacity as mother and
natural guardian of her child, IS, claims damages from
the defendant,
the Member of the Executive Council responsible for Health in the
Eastern Cape, arising from harm allegedly suffered
by her and her
child, IS, when IS was born on 27 July 2008. The plaintiff’s
claim is that IS has spastic quadriplegic
cerebral palsy and
microcephaly.
[1]
The
plaintiff’s claim is that the injury to IS’s brain was
caused by the negligence of the medical practitioners
and medical
personnel (the medical personnel) at the Port Elizabeth Provincial
Hospital (the hospital) who treated her on 27 July
2008.
[2]
At the commencement of the trial and at the request of the plaintiff,
an order
was made separating the issue of the defendant’s
alleged liability from the quantification of the plaintiff's damages,
if
any, with the trial proceeding on the former and the latter
standing over for later determination.
[3]
The parties
agreed in a pre-trial minute dated 9 August 2023 inter alia that the
documents, inclusive of hospital records relevant
hereto are what
they purport to be and that where a document, in the face of it,
purports to have been created by any person, it
shall be regarded as
having been so created. The defendant discovered all the
records kept at the hospital to which reference
was made during the
leading of evidence at the hearing. In
HN
v MEC for Health, KZN
[2]
it was held that recordings favourable to a plaintiff’s case in
establishing negligence and liability generally, and accordingly
damaging to the defendant’s case, made as part of the records
kept by the defendant’s servants, constitute admissions
by the
defendant’s servants made in the ordinary course of discharging
their duties, which are binding against the defendant.
In the
case of a hospital, the medical personnel are obliged to make these
statements in the records to reflect the medical position
as it
unfolds. I respectfully align myself with the position
articulated by Koen J in
HN
v MEC for Health, KZN.
The
plaintiff’s expert witnesses were, in the circumstances,
entitled to refer to and rely on the hospital records as part
of the
factual basis for their respective opinions.
[4]
The plaintiff testified in support of her case. She also called
three
medical practitioners to testify. Andrew Redfern
qualified as a medical practitioner in 2001, as a paediatrician in
2009
and as a developmental paediatrician in 2013. He is
currently a senior lecturer and senior specialist in the Department
of
Paediatrics and Child Health in the Faculty of Medicine and Health
Sciences at the University of Stellenbosch. Dr Redfern
assessed IS on 5 September 2019 when he was 11 years old. The
purpose of the assessment was to compile a report on the possible
cause and timing of the neurodisability with which IS presents.
At the time of the assessment, Dr Redfern was in possession
of
only the Road to Health Booklet, which was handed to the plaintiff
when she and IS were discharged from hospital after his birth.
After
he had assessed IS, he was also placed in possession of a Magnetic
Resonance Imaging (MRI) scan performed on IS on 6 September
2019 and
the medico-legal report dated 10 September 2019 compiled by Jan Lotz,
a neuroradiologist. The antenatal, maternity case
records and
neonatal records relating to IS were not available.
[5]
Dr Redfern testified that on 5 September 2019, he interviewed the
plaintiff
and clinically examined IS. He reported that, from the
interview, examination and the available documents, he established
that
the plaintiff presented to the hospital at about 08h00 on 27
July 2008, complaining of intermittent lower abdominal pains since
about 07h00. After an assessment and after a cardiotocography
(CTG) was performed on the plaintiff, she went into a room.
She
told him that she was not reassessed until approximately 14h00 when
she called a nurse because she was experiencing stronger
labour
pains. She was advised to walk up and down. She called a
nurse at about 15h00. She was taken to the labour
ward where
she positioned herself on a bed. A nurse advised her to push.
IS was born at about 15h40.
[6]
The plaintiff informed him that IS did not cry when he was delivered
or at any
stage in the early neonatal period, and he was placed in an
incubator, on oxygen. He was fed through a tube. He was
transferred to Dora Nginza Hospital, where he was admitted to the
nursery. IS was in an incubator for about a week after
delivery. The plaintiff described him as ‘
weak, just
lying, not moving, not crying, doing nothing
’. He
started to suck and breastfeed and showed increased movement at about
eight days after delivery. He was
discharged home during the
second week of life.
[7]
The plaintiff informed him that she noted that, at three months after
birth,
IS was less active than babies of a similar age. He sat
at about two years of age and crawled at about 6 years. The postnatal
records reflected that IS was admitted to Dora Nginza Hospital
for pneumonia when he was about three years old.
An entry was
made in those records reading ‘
Prolonged labour and birth
asphyxia. HIE
’ (Hypoxic Ischaemic Encephalopathy).
The clinic notes reflected that IS suffered from constipation and
feeding issues
in the past.
[8]
Dr Redfern reported that his physical examination of IS revealed that
his clinical
findings were in keeping with microcephaly, spastic
quadriplegic cerebral palsy and severe physical and intellectual
disabilities.
He testified that, through the physical
examination, he established signs of cerebral palsy affecting all
four of IS’s limbs
and his trunk. His abnormally small
head was indicative of impaired growth of the brain caused by damage
to it. IS
had no dysmorphic features, meaning that IS did not
present with features of a genetic syndrome, like Down Syndrome.
IS also
did not present with other neurological or metabolic
conditions that could mimic cerebral palsy. The examination
also showed
stiffness in IS’s muscles. The damage to IS’s
brain caused his muscles to become stiff. He also presented
with risk reflexes, being inadequate control of the muscles and
movements. IS had a slight drool. It means that the
part
of the brain which controls swallowing was damaged. IS was
unable to communicate in any meaningful way other than crying.
He did not seem to understand anything that was said to him.
Dr Redfern testified about the importance of the MRI in
the
absence of the availability of the maternity case records and the
neonatal records. The MRI scan supported his opinion
that there
was nothing pointing towards an early insult, an infection or a
stroke. The MRI scan was consistent with prolonged
intrapartum
asphyxia.
[9]
The fact
that IS did not cry at birth, required oxygen and had low Apgar
scores
[3]
suggested to Dr
Redfern that there was depression at birth. The history of
depression at birth and the presence of neonatal
encephalopathy after
birth point towards the perinatal period (the period around the time
of delivery) as the likely period when
the brain injury occurred.
He reported that the evidence, based on medical research, suggests
that, when a neonatal encephalopathy
is present after delivery,
intrapartum factors can almost always be said to be the main cause of
the encephalopathy. His
opinion was that the low Apgar scores,
the neonatal encephalopathy and the MRI findings collectively make
intrapartum asphyxia
causing HIE the most likely cause of IS’s
spastic quadriplegic cerebral palsy.
[10]
Dr Redfern
subjected IS’s symptoms to the criteria of the American College
of Obstetricians and Gynaecologists (ACOG) and
Volpe
[4]
for the determination of the occurrence of intrapartum asphyxia.
Dr Redfern preferred to rely on the criteria set out by
Volpe.
Volpe has suggested that intrapartum asphyxia is most likely to have
occurred if foetal distress, depression at birth
and neurological
syndrome after birth (evidence of brain dysfunction) are present.
Dr Redfern was of the view that two of
those features were present in
this case. Based on the then available documents, he was unable
to determine whether foetal
distress was present. Despite not
knowing whether foetal distress was present, Dr Redfern concluded
that there was sufficient
information to conclude that intrapartum
asphyxia causing HIE was the most likely cause of IS’s cerebral
palsy, because IS
was depressed at birth and he presents with brain
dysfunction. Dr Redfern stressed that his opinion might be
confirmed
or refuted if the maternal case records became available.
[11]
The
maternal case records indeed became available. On 29 July 2023
Dr Redfern was provided with neonatal records; obstetric
records,
including antenatal and maternal case records; and records from IS’s
hospital admission in 2011. The antenatal
record did not reveal
any pre-existing medical condition. The maternal case records
showed that, when the plaintiff was examined
at 09h40 on
27 July 2008, she was 1-2cm dilated and the foetal heart
rate was normal; and a CGT was concluded at about
10h05. The
plaintiff had three strong contractions in 10 minutes. The
partogram was started at 13h00 when the plaintiff’s
cervix was
9cm dilated. Meconium
[5]
was
noted at 13h37. In a separate nursing entry in the maternal
case records, the meconium was noted to be thick. The
presence
of meconium was a sign of foetal distress. When IS was born at
15h37, he was depressed and required resuscitation.
It means
that IS needed to be assisted with breathing. The plaintiff was
given dextrose and oxygen (intrapartum resuscitation),
which is
indicative that there was concern about the foetal condition.
[12]
Dr Redfern concluded that the newly discovered records confirmed the
presence of a prolonged moderate
neonatal encephalopathy, the most
likely cause thereof being HIE. The neonatal encephalopathy was
secondary to intrapartum
asphyxia. The presence of
meconium-stained liquor and low Apgar scores are consistent with his
opinion regarding the cause
of the neonatal encephalopathy, namely
intrapartum asphyxia. There was foetal distress, depression at birth
and neonatal encephalopathy,
all three criteria set out by Volpe for
the determination of the presence of intrapartum birth asphyxia.
Dr Redfern
reported that the newly discovered records did not
provide information that caused him to alter the opinion that he
expressed in
his original report. To the contrary, those
documents confirmed that IS suffered HIE. The newly discovered
documents
did not suggest that there were any associated or
contributing factors present, such as neonatal sepsis
chorioamnionitis, nor any
other avoidable factors, such as a
perinatal sentinel event.
[13]
The plaintiff testified that she realised that she was pregnant in
November 2007 when she missed her
menstrual period. She
attended an antenatal clinic in February 2008 when she was four
months pregnant. She returned
to that clinic on the dates given
to her. At no stage was she told that something was wrong with
her or the foetus.
She did not experience any form of
trauma during her pregnancy before her admission to hospital.
[14]
At approximately 05h00 on 27 July 2008 she felt lower back pains.
She arrived at the hospital
at approximately 09h00. The staff
attended to her without delay. A CTG was performed. When
a vaginal examination
was performed, she was informed that her cervix
was 2cm dilated. The two nurses who attended to her informed
her that it
would take some time before the child was born. At
approximately midday she called the nurses because the pain became
severe.
After her vaginal examination, she was told that her
cervix was 9cm dilated. The partogram showed that it was 13h00
when
her cervix was 9cm dilated. She was told to walk up and
down in the passage, which she did. When the pain became more
severe, she was taken to the labour ward where a bed was allocated to
her. One nurse asked her to open her legs and to push
whilst
the other nurse used her two hands to push the foetus in the
direction of the birth canal. She estimated that exercise
to
have taken between 3-4 minutes.
[15]
When IS was born at 15h40, he was not crying. The nurses called
an ambulance. She saw the
nurses inserting nasal pipes and
incubating IS. She and IS were taken to Dora Nginza Hospital at
approximately 19h00 on that
same day. She saw him only at about
03h00 on 28 July 2008 when she was told to go the nursery. When
she arrived at
the nursery, she saw a pipe in IS’s mouth.
That was in addition to the nasal pipes. After changing his
nappy,
she left IS. She saw him again at 09h00 when a doctor
was present. The doctor told her that IS was not the same as
other babies and would take time to walk and speak. She and IS
were discharged from hospital on 4 August 2008.
[16]
The plaintiff testified that before they were transferred to Dora
Nginza Hospital, IS did not latch
onto her breasts. When she
saw him at 03h00 on the day following his birth, she was not asked to
breastfeed him. It
was only when she met the doctor that he
said that IS would be fed through a pipe. IS was taken from the
incubator on 3 August 2008
when she was told that she could
breastfeed him. He was able to breastfeed. The plaintiff
testified that IS cannot
crawl. He started bum shuffling after
approximately five years. He cannot walk, have a
conversation, wash, dress or
feed himself.
[17]
Constant Ndjapa-Ndamkou is a specialist gynaecologist and
obstetrician who qualified as a medical practitioner
in 1997, as a
gynaecologist and obstetrician in 2013 and obtained various other
qualifications, inclusive of a master’s degree
in obstetrics
and gynaecology. He is a lecturer at the Charlotte Maxeke
Academic Hospital in the Department of Obstetrics
and Gynaecology.
[18]
Dr
Ndjapa
[6]
confirmed that he
interviewed the plaintiff and reviewed the Road to Health chart,
hospital records as well as the reports prepared
by Dr Redfern and
Prof Lotz. He did not have the maternal case records in
his possession when he compiled his initial
report. To enable
him to compile that report, he relied on the plaintiff’s
recollection of events; the entries in the
then available hospital
records and the presence of neonatal encephalopathy, which strongly
suggested that, in his view, that intrapartum
asphyxia was the most
probable cause associated with IS’s birth asphyxia. He
was of the opinion that, despite the lack
of clinical records, based
on the information narrated by the plaintiff and the presence of
neonatal encephalopathy, IS’s
current condition was the result
of substandard care during the intrapartum period. In his view
the harm was preventable.
[19]
After he had compiled his initial report, the clinical records,
inclusive of the maternity case records,
became available.
Since the plaintiff was not monitored between approximately 10h00 and
13h00, it is unknown when the plaintiff
went into active labour,
which commenced when the plaintiff was about 4cm dilated, and why
there was rapid dilatation during that
period.
[20]
The maternal case records also showed that at 13h37 thick
meconium-stained liquor was discharged after
the plaintiff’s
membranes ruptured spontaneously. It was recorded on the partogram
that meconium-stained liquor was present
at 14h00, 14h30 and 15h00.
Dr Ndjapa testified that the presence of meconium suggested that the
foetus was in distress, causing
the plaintiff to be placed on
dextrose saline and oxygen. What was very disturbing for Dr
Ndjapa was the absence of the recording
of foetal heart rate
decelerations which were last recorded at 13h30. It therefore
means that foetal heart rate deceleration
was not excluded after
13h30. The absence of foetal heart rate deceleration recording
after 13h30 suggested to Dr Ndjapa
that, regard being had to how IS
presented at birth, foetal heart abnormality may have been present,
but went unnoticed, resulting
in birth asphyxia. That would be
consistent with the radiological finding of Dr Lotz and the neonatal
findings of Dr Redfern.
In the circumstances, Dr Ndjapa was of the
view that, because there was no monitoring of the plaintiff between
10h00 and 12h50,
the foetal heart rate abnormality may have occurred
unnoticed over that period, resulting in birth asphyxia. That
is the
most probable cause of the harm to IS’s brain, if regard
is had to the presence of meconium which caused foetal distress and
the absence of the recording of foetal heart rate deceleration since
13h30. He was of the view that foetal distress was evident
at
13h37 with the appearance of meconium, requiring intrapartum
resuscitation. He was of the view that, in addition to
intrapartum
resuscitation, the plaintiff should have been prepared
for immediate delivery of her baby by the fastest route, being a
caesarean
section. Dr Ndjapa was of the view that had the
plaintiff undergone intrapartum resuscitation with a view of
performing a
caesarean section, the outcome of birth asphyxia would
in all probability have been prevented.
[21]
Prof Lotz qualified as a specialist in radiology in 1980. He
testified that the human brain evolved
over millions of years.
Initially there was only the reptilian brain. The vital centres
of life (that is all the aspects
that keep humans alive, like
breathing, heartbeat and swallowing) are centred in the reptilian
brain. The mammalian brain
developed around reptilian over
millions of years. It controls things like increased smell.
The human brain developed
around the reptilian and mammalian brain.
It helps to make contextual sense of life around us. The
reptilian brain,
which is surrounded by the mammalian and human
brains, is still alive. The human brain is dormant until the
child is about
three or four years old, when it starts making
contextual sense of life. Before, during and after birth the
human brain is
less important. What is controlling breathing
and other vital centres of life during that period is the reptilian
brain.
[22]
Under normal circumstances the various brains are adequately supplied
with blood and accordingly oxygen.
If, for one reason or the
other, there is a reduced supply of oxygen to the foetus, its
automatic redistribution mechanism is activated.
Blood supply
to certain organs, like the kidneys, liver and skin, will be shunted
off and channelled to the reptilian, mammalian
and human brains.
The reduced supply of oxygen to the foetus will cause foetal
distress. When a foetus is in distress,
the heart rate is
increased and the heart contracts differently during and after
contractions. The foetal distress will be
removed if the oxygen
supply is restored. If the insufficiency or lack of oxygen were
to persist, there would be less or
no more oxygen to be channelled
from other organs to the brains. The blood supply to the human
brain will then be shunted
off since the human brain is not necessary
for life at that stage. The blood supply is then channelled to
the reptilian brain.
The effect of the human brain being
starved of blood and accordingly oxygen is the dismantling of the
human brain. That process
does not happen suddenly. It is
a prolonged process, extending over hours. Once the human brain
is damaged through
an inadequate or no supply to oxygen, the foetus
stops to function as a human and would from then function like a
reptile.
In such a case the human brain would have been
destroyed by the lack of or inadequacy of oxygen, which oxygen was
channelled to
the reptilian brain to keep it alive.
[23]
In this case two images were shown on the MRI scan. On the one,
the brain ventricles were visible.
Next to them was the
reptilian brain. Outside the reptilian brain were the areas of
IS’s human brain which had been
destroyed. Those were the
areas which had been starved of oxygen so that the available oxygen
could be channelled to the
reptilian brain to keep it alive.
The MRI showed an intact reptilian brain and a destroyed human
brain. The damage
to IS’s human brain was the dominant
injury.
[24]
Prof Lotz’s evidence, based on the MRI scan only, is consistent
with Drs Redfern and Ndjapa’s
opinions and reasons therefor.
The undisputed independent evidence of Prof Lotz was that the
MRI scan showed a mixed pattern
of both moderate (prolonged partial)
and more severe (terminal) hypoxic ischaemic injury.
[25]
I am satisfied that the plaintiff’s expert witnesses are
sufficiently qualified and have sufficient
experience to testify as
experts in their respective fields of expertise. Their evidence
has been accepted as reliable.
In my view, the evidence given
by the plaintiff, together with the evidence of her expert witnesses,
demonstrated that IS suffered
harm because his brain has been
destroyed. The damage to IS’s brain occurred when it was
starved of oxygen over a few
hours while in utero. What needs
to be determined next are whether the medical personnel at the
hospital were negligent and,
if so, whether that negligence was
causally connected to IS’s destroyed brain.
[26]
Counsel for the plaintiff relied on the maternal case records as well
as the plaintiff’s and
Dr Ndjapa’s evidence for the
submission that the medical personnel were negligent. Dr
Ndjapa’s evidence was that
the conduct of the medical personnel
fell short of the norm in three respects. The first was that
the plaintiff was not properly
monitored when she was in labour.
Secondly, fundal pressure was applied to assist with IS’s
delivery. Thirdly, the
medical personnel failed to prepare
the plaintiff for theatre so that an emergency caesarean section
could be performed to have
the baby delivered.
[27]
The onus was on the plaintiff to prove on a balance of probabilities
that the conduct of the medical
personnel caused the harm. In
that regard Dr Ndjapa testified about the importance of recording
whether the recorded heart
rate reflected the position before, during
or after a contraction. Foetal distress can only be properly
determined through
an indication of when exactly a deceleration in
the foetal heart rate occurs. Foetal heart decelerations
indicate the drop
of the foetal heart rate below the baseline by
fifteen beats per minute lasting for fifteen seconds.
Monitoring decelerations
is very important in that, without
monitoring and recording them, the foetal condition would be unknown
to the attending clinician
who would not know if the foetus was
coping during labour. That would be the case even if the
baseline foetal heart rate
is monitored and assessed to be normal.
A normal foetal heart rate is between 110 and 160 beats per minute.
[28]
In this case the partogram reflected a normal foetal heart baseline
when readings were made every half
an hour between 13h00 and 15h00
and that there were no decelerations at 13h00 and 13h30. Foetal
heart decelerations were
not recorded from 13h30 onwards. Dr
Ndjapa testified that a normal foetal heart baseline does not mean
the absence of decelerations.
The failure by the medical
personnel to monitor the foetal heart decelerations from 13h30 means
that it could not be assessed how
the foetus reacted to
contractions. Had the medical personnel monitored and recorded
the foetal heart rates before, during
and after contractions, they
would have established when a deceleration in the foetal heart rate
occurred and would accordingly
have assessed whether the foetus was
in distressed. As it turned out, the foetus was indeed in
severe distress at approximately
13h37 when thick meconium-stained
liquor was draining. In this regard it is pointed out
that, according to the maternity
case records, between approximately
10h00 and 13h00 the plaintiff’s labour was not monitored.
A CTG was performed between
09h50 and 10h05 but the report turned out
to be blank. The probabilities are that the foetus was in
distress before
13h37 because the distress caused the foetus to
discharge meconium. The foetal distress went unnoticed because
of the absence
of monitoring and consequently the absence of the
recording of the foetal rate decelerations. The foetal heart
rate abnormality
resulted in birth asphyxia which is in keeping with
the evidence of Dr Redfern and the independent conclusions at which
Prof Lotz
arrived. In the circumstances, the failure to
properly monitor the plaintiff during labour constituted negligence
on the
part of the medical personnel who attended to the plaintiff
during labour.
[29]
The second ground upon which the plaintiff relied for the contention
that the medical personnel were
negligent, was the application of
fundal pressure. The plaintiff testified that while one nurse
told her to push, another
one was applying pressure on her abdomen in
the direction of the birth canal to assist with delivery. The
medical records
reflected that at approximately 13h00, almost two and
half hours before delivery,
2
/
5
of the foetal
head was above the pelvic brim. Since the foetal head was not
plotted anywhere on the partogram, except at
13h00, it was unknown
where the foetal head was when the nurse applied fundal pressure.
[30]
For the
nurse who applied fundal pressure to the plaintiff’s abdomen
(the treating nurse) to be held negligent, the plaintiff
was required
to show that a reasonable nurse in the position of the treating nurse
would have foreseen the reasonable possibility
of her or his conduct
injuring the foetus and causing harm to it, and if so, the reasonable
nurse would have taken reasonable steps
to guard against causing harm
to the foetus; and the treating nurse failed to take such steps.
[7]
[31]
In the circumstances of this case, a reasonable nurse, faced with a
situation where the position of
the head of the foetus was unknown,
would have foreseen the reasonable possibility of such conduct
injuring the foetus and that
such injury would cause harm to the
foetus; and that a reasonable nurse would take reasonable steps to
guard against conduct injuring
and causing harm to the foetus.
The treating nurse failed to take reasonable steps to guard against
her conduct injuring
and causing harm to the foetus. She was,
on the
Kruger v Coetzee
test, negligent by applying fundal
pressure under these circumstances. Whether her negligent
conduct caused harm to the foetus
is another issue altogether.
[32]
I now deal with the last ground upon which the plaintiff relied for
the contention that the medical
personnel were negligent. This
ground overlaps to a large degree with the lack of proper monitoring
of the plaintiff during
labour. The maternity case records
reflected that at approximately 13h00 the plaintiff’s cervix
was 9cm dilated.
This was after her cervix was 1-2cm dilated at
approximately 09h40. The dilation of her cervix progressed
faster than normal.
The evidence was that, during labour, the
cervix dilates at approximately 1cm per hour. No investigation
was conducted to
establish the reason for the rapid dilation after
13h00, after it had been established that the cervix was 9cm
dilated. At
13h37 the thick meconium was noted. The
nurses then initiated intrapartum resuscitation. Dr Ndjapa
testified that the
performance of intrapartum resuscitation was an
acknowledgment on the part of the nurses that the foetus was in
distress and required
assistance. It was for that reason that
they gave the plaintiff dextrose (sugar) and oxygen. The oxygen
that was given
to the plaintiff was to supplement the oxygen supply
to the foetus. Dr Ndjapa’s evidence was that, because the
foetus
was in distress at the latest at 13h37 when thick meconium was
noted, it should have been relieved from the distress as a matter
of
urgency. He commended the nurses for having performed
intrapartum resuscitation but testified that the intrapartum
resuscitation
was a means to an end. The purpose of the
intrapartum resuscitation was to assist the foetus with oxygen until
it was
delivered through caesarean section which, according to Dr
Ndjapa, was the only option to deliver the baby by the fastest
route.
In my view, had the medical personnel taken the
plaintiff to theatre for an emergency caesarean section to be
performed when thick
meconium was noticed at 13h37, the outcome of
birth asphyxia some two hours after the meconium was noticed, would
in all probability
have been prevented. The failure of the
medical personnel to prepare the plaintiff for theatre for the
performance of a caesarean
section constituted negligence.
[33]
In the circumstances, the plaintiff has demonstrated on a balance of
probabilities that the medical
personnel were negligent when they did
not properly monitor the plaintiff during labour, when fundal
pressure was applied to the
plaintiff’s abdomen and when they
failed to prepare the plaintiff for theatre for a caesarean section
to be performed.
The next enquiry is whether the
above negligence caused the outcome.
[34]
Causation
gives rise to two distinct enquiries, namely factual and legal
causation. Factual causation entails a factual enquiry
into
whether the negligent act or omission caused the harm that gave rise
to the claim. If the negligent act or omission
did not cause
the harm, then that is the end of the matter. If the factual
enquiry shows that the harm was caused by the
negligent act or
omission, a judicial problem arises. That is the second
enquiry, where the question is whether the negligent
act or omission
is linked to the harm sufficiently closely or directly for legal
liability to ensue or whether the harm is too
remote. This is
termed legal causation.
[8]
[35]
To
determine factual causation in an instance of an act or commission on
the part of the defendant, if the
conditio
sine qua non
theory or but-for test is used, the conduct is mentally removed to
establish whether the relevant consequence would still have
resulted. By way of example, in the case where the defendant
hit the plaintiff on the mouth, one must mentally remove the
hitting
to determine whether the plaintiff would have sustained the swollen
lip and loss of teeth (the harm). If the plaintiff
would have
suffered that harm in any event, then the wrongful conduct (the
physical use of force) was not the cause of the plaintiff’s
loss. If the wrongful act is shown not to be a
causa
sine quo non
of the plaintiff’s harm, then no liability can arise.
[9]
[36]
In an
instance of an omission on the part of the defendant, the but-for
test requires that a hypothetical positive act be inserted
in the
particular set of facts. This means that reasonable conduct by
a reasonable defendant would be inserted into the set
of facts.
By way of example, in the case of an educator who can swim and sees
one of his learners has difficulties in a swimming
pool during an
official school outing, the reasonable conduct by a reasonable
defendant would be inserted into the set of facts.
Where the
learner drowned, the question would be whether his death was caused
by the educator’s omission to save him.
The educator
would be liable if a reasonable attempt to save the learner would
have prevented his death by drowning. He would
not be liable if
reasonable attempts to save the learner would in any event not have
prevented the learner’s death.
The rule regarding the
application of the test in positive act and omission cases is
flexible since there is no magic formula by
which a causal nexus is
established between the wrongful act or omission and the harm.
The existence or absence of the nexus
depends on the facts of a
particular case.
[10]
[37]
Legal
causation involves the question whether the defendant should be held
liable. For the defendant to be held liable, there
must be a
reasonable connection between the act or omission and the harm done.
A defendant is not liable for harm that is
too remote from the
conduct. A defendant’s negligent conduct which manifests
itself in the form of a positive act causing
harm to the plaintiff is
prima
facie
wrongful. However, a defendant’s negligent omission is
not regarded as
prima
facie
wrongful.
The wrongfulness of the negligent omission depends on the existence
of a legal duty.
[11]
[38]
The
determination of the existence of a legal duty in any case involves
criteria of public and legal policy consistent with constitutional
norms. A negligent omission causing harm will only be regarded
as wrongful and therefore actionable if public and legal policy
considerations require that such omission should attract legal
liability for the resultant damages.
[12]
[39]
In her plea, the defendant admitted that the medical personnel were
under a legal duty of care to ensure
the rendering of proper
antenatal care, monitoring and management of labour, delivery and
postnatal care at the hospital, and that
those duties be rendered
with such skill, care and diligence that could reasonably be expected
of medical personnel in similar
circumstances.
[40]
Regard being had to the facts of the present matter, I am of the view
that the plaintiff has failed
to establish on a balance of
probabilities that the fundal pressure that the treating nurse
applied to her abdomen caused harm
to the foetus. That much was
conceded by the plaintiff’s counsel, who, in their heads or
argument, submitted that it
was ‘
impossible to determine the
exact consequences of the application of fundal pressure
’.
The fact that the treating nurse was negligent when she applied
fundal pressure under the circumstances, does not
mean that such
negligence caused harm to the foetus. Since the plaintiff
failed to prove factual causation in respect of
the application of
fundal pressure to the plaintiff, the need to enquire into legal
causation in respect of that ground of negligence
falls away.
[41]
I will deal with the remaining two grounds of negligence together,
namely the lack of adequate monitoring
of the plaintiff during labour
and the failure to prepare her for a caesarean section to deliver her
baby as a matter of urgency.
The lack of the plaintiff’s
monitoring between 09h40 and 13h00 has already been pointed out
above. Assuming a hypothetical
course of lawful conduct be
substituted for the omission to properly monitor the plaintiff during
labour and the failure to prepare
the plaintiff for theatre, namely
that the plaintiff was regularly monitored between 09h40 and the time
of delivery at approximately
15h37, the medical personnel would have
realised that there was foetal distress, as confirmed by the presence
of meconium and would
have prepared the plaintiff for theatre,
including the performance of intrapartum resuscitation. Such
hypothetical course
of lawful conduct would, in my view, probably
have prevented the harm that the foetus suffered. The plaintiff
has accordingly
succeeded in establishing factual causation.
The medical personnel breached the admitted legal duty of care.
Public
and legal policy considerations require the defendant to be
held liable for the negligent failure to treat the plaintiff with the
necessary care, which negligence on the part of the medical personnel
caused the harm to IS’s brain. In the circumstances,
the
plaintiff has established on a balance of probabilities that the
damage to IS’s brain was negligently caused by the medical
personnel. The defendant should therefore be held liable for
such damages as the plaintiff may prove arising from the brain
damage
that IS sustained during labour on 27 July 2008 as well as the
consequences of such brain damage.
[42]
The plaintiff was successful. She is entitled to the costs of
the action, such costs to be paid
by the defendant.
[43]
In the result, it is ordered that:
1.
The defendant is liable to the plaintiff, in her personal and
representative
capacity, for such damages as she may be able to prove
or agreed arising from the brain damage that IS sustained during
labour
on 27 July 2008 as well as the consequences of such brain
damage.
2.
The defendant shall pay the plaintiff’s costs to date of this
judgment, such costs to include:
2.1.
the costs attendant upon the obtaining of the medico-legal reports,
addenda thereto and joint minutes,
if any, of the expert witnesses in
respect of whom notices in terms of rule 36(9) were delivered;
2.2.
the qualifying and appearance fees of the expert witnesses in respect
of whom notices in terms of rule
36(9) were delivered;
2.3.
the reasonable and necessary air transport and accommodation costs
and expenses of the expert witnesses
in respect of whom notices in
terms of rule 36(9) were delivered;
2.4.
the expenses relating to the transcription of the evidence of Prof
Jan Lotz; and
2.5.
the reasonable fees of two counsel, where such services were engaged,
including the preparation of
heads of argument, and expenses in
respect of consultation when preparing for trial with expert
witnesses in respect of whom notices
in terms of rule 36(9) were
delivered.
3.
The defendant shall pay interest on the plaintiff’s taxed or
agreed costs of suit at the prescribed statutory rate calculated from
a date 14 (fourteen) days after agreement in respect thereof,
or a
date 14 (fourteen) days after affixing of the taxing master’s
allocatur
, to date of payment.
GH
BLOEM
Judge
of the High Court
Appearances
For
the plaintiff:
Mr
AM
Bodlani SC
and Ms
Z Nxazonke-Mashiya
, instructed by
Sakhela Inc, East London.
For
the defendant:
No
appearance.
Date
heard:
7,
14,15 and 16 August 2023
Date
of delivery of the judgment:
3
October 2023
[1]
An
abnormally small head size secondary to brain damage.
[2]
HN v
MEC for Health, KZN
[2018]
ZAKZPHC 8 paras 6-9.
[3]
Dr Redfern testified that Apgar scores are recorded by the birth
attendants to describe the condition of the baby at birth.
Factors considered include the colour of the baby, whether the baby
is breathing and at what rate (respiration), the baby’s
heart
rate, whether the baby is crying and how active the baby is
(response). In this case IS’s Apgar scores were
recorded
as 5 in the first minute after birth, which is abnormally low; 5 in
the fifth minute, which is also low and 6 in
the tenth minute, which
is also low.
[4]
JJ Volpe’s
Neurology
of the Newborn
6 ed (2018) Philadelphia, PA: Elsevier; is seen by many as the
leading textbook on the neurology of babies.
[5]
Meconium
is a stool passed by a newborn, usually after birth. When a
foetus passes a stool while in utero, it is a sign
that the foetus
is in distress due to low levels of oxygen because of insufficient
blood supply to the foetus.
[6]
Although his surname is Ndjapa-Ndamko, I shall refer to him as Dr
Ndjapa, as he was referred to by the plaintiff, her counsel
and the
two medical practitioners. He also referred to himself was Dr
Ndjapa.
[7]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-F.
[8]
Lee
v Minister for Correctional Services
2013
(2) SA 144
(CC) para 38.
[9]
International
Shipping Coal (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700E-I.
[10]
Lee
fn
8 para 41.
[11]
Hawekwa
Youth Camp and Another v Byrne
2010
(6) SA 83
(SCA) para 22.
[12]
See
also
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) paras 21 and 22.