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[2024] ZAECBHC 3
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A.D obo L.D v Member of the Executive Council for Health Eastern Cape (505/2021) [2024] ZAECBHC 3 (19 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO
)
Case
no: 505/2021
In the matter between:
A
D obo L D
Plaintiff
and
THE MEMBER OF THE
EXECUTIVE
COUNCIL
FOR HEALTH EASTERN CAPE
Defendant
JUDGMENT
GQAMANA
J
[1]
On 24 January 2017, the plaintiff was admitted at Bisho hospital and
was later transferred by an ambulance
to Cecelia Makiwane
hospital. The reasons for such transfer or referral will
be dealt with below. She
gave birth to a son,
L
,
by vaginal delivery at 05h15 at Cecelia Makiwane hospital.
The plaintiff was 32 years old at the time and she was
gravida 2 para
1.
[1]
L
was born in a compromised state, he did not cry at birth and
immediately after birth he had to be resuscitated for 20 minutes.
L
also had convulsions following resuscitation and required supportive
ventilation.
[2]
The plaintiff instituted action in her personal and representative
capacity against the the defendant,
the Member of the Executive
Council for Health in the Eastern Cape Province Government (the
MEC). In the particulars of claim
she alleged that the
defendant had a duty to ensure that public hospitals
under her control render medical care,
treatment and advice to the
public with such skill, care and diligence as is reasonably
expected of medical personnel, medical
practitioners and nursing
staff in ensuring that proper, efficient and reasonable health
services are provided to the members of
the public including the
plaintiff and
L
.
[3]
The plaintiff further alleged that, on 24 January 2017, she
was admitted at Bisho hospital
for maternity and obstetric care and
was later transferred to Cecelia Makiwane hospital where she gave
birth to
L
. Further it is alleged that by reasons of her
admission, the defendant’s medical staff in the aforementioned
hospitals
were under a legal duty of care to ensure that they render
to the plaintiff and
L
medical care, treatment and advice with
such skill, care and diligence reasonably expected of medical
practitioners and nursing
staff in similar circumstances. In
addition she alleged that the defendant’s medical staff were
negligent and it was
their negligence that caused
L
to suffer
a permanent impairment to his brain. As a result thereof, the
plaintiff claimed damages in the sum of R
57 million
against
the defendant.
[4]
The defendant admitted that she owed the plaintiff and
L
duty
of care while they were admitted in the aforementioned hospitals.
The defendant denied liability and breach of such
duty of care by the
medical staff. In addition to that, the defendant denied that
there was any undue delay in attending
to the plaintiff. In
amplification of such denial, the defendant pleaded that, the
plaintiff and
L
were afforded proper medical care and
treatment in accordance with the guidelines and protocols and that
the services were rendered
to the plaintiff and
L
within the
available resources at the aforementioned hospitals.
[5]
At the commencement of the trial, parties agreed to separate the
determination of liability from quantum
and I made an order to that
effect. In addition, issues were further narrowed down and the
only issue remaining is the question
of negligence. The defendant
denied that the medical staff were negligent and that
L’
s
condition was as a result such negligence.
[6]
The basis of the test for negligence is that set out in
Kruger
v Coetzee
[2]
:
“
For the purposes of
liability culpa arises if:
(A)
A diligens paterfamilias in the position of the defendant:
(I)
Would foresee the reasonable possibility of his conduct injuring
another in his personal property and causing him patrimonial
loss;
And
(II).
Would take reasonable steps to guard against such occurrence; and
(B).
The defendant failed to take such steps.”
[7]
As a point of departure
,
I will set out the common cause facts
in order to give factual perspective underlying the issues in
dispute. Most of those facts
are derived from the plaintiff’s
evidence as well as that of sister
Mangesana
considered
together with the joint minutes filed by the pediatricians and
radiologists experts and the maternity case record.
[8]
On or about June/July 2016, plaintiff attended a local clinic because
she was not feeling well and it
is then that she became aware
that she was pregnant. She was also tested her for viral
infections and her results were
positive. She was immediately
placed on appropriate medication. Thereafter she attended antenatal
clinic regularly.
The estimated date of delivery according to
the pregnancy scan was 28 January 2017. Her antenatal care was
uneventful.
[9]
On 24 January 2017, she was admitted at Bisho hospital at 00h30
complaining of labour pains. On
admission and on the history
obtained from her, she reported that her contractions started around
21h00, the previous night
[3]
and her membranes ruptured at 22h30.
[10] Upon
vaginal examination by sister Mangesana
[4]
at labour ward, it was found that the plaintiff was in the active
phase of labour. She was 6cm dilated and her cervix was
thick.
The presenting part was stationed at -3. The liquor was
clear
[5]
and her pelvic was adequate. The contractions were lasting 40
seconds.The plaintiff was advised not to push because
she was
still far from delivery. The plaintiff testified that she
complied with the nurses’ instructions not to push
although she
was in extreme pains and was experiencing contractions. However,
according to sister
Mangesana’s
evidence,
plaintiff continued bearing down prematurely despite her advise and
was uncooperative.
[6]
Plaintiff then said she was in pains and she felt the urge to push. I
will deal with this later below.
[11] On
general examination, plaintiff’s pulse was 123 beats per minute
(bpm) and her blood pressure level was
elevated, it was 143/94.
[7]
She also had blood spots in her urine. Her body temperature was
36.8 degrees celsius.
[12] The
fetal status
[8]
was also checked by sister
Mangesana
on admission. The foetus lie was longitudinal. The foetus was
in the cephalic presentation.
[9]
Generally this position allows for smoothest delivery. The
liquor was normal. The foetal head was at 4fifths
above the
pelvic brim. The foetal heart rate was 159 bpm. It was checked
by use of a transducer. The cardiotocography
(CTG)
[10]
was not be done because plaintiff was uncooperative. Having
assessed and examined the plaintiff, sister
Mangesana
recorded the following maternal, fetal and labour risk factors:
‘
mother
bearing down continuously? Big baby
[11]
,
and possible obstructed Labour”
respectively.
The plan was to place plaintiff on the CTG and for the doctor to
assess her. All the information was also
recorded in the
partogram.
[12]
The doctor on duty was notified of the plaintiff’s condition
but was unable to attend to her immediately as the doctor
was busy
resuscitating another baby that had meconium aspiration syndrome.
[13]
[13]
It is common cause that the combination of the continuous bearing
down and a thick cervix in active phase of labour
is called “
Khanula
syndrome”.
[14]
Upon plaintiff’s examination on admission it was known by
the nursing staff that there was a possible
macrosomia with a
possibility of an obstructed labour. It was also known that
there was no theatre sister on duty.
[15] It is
common cause that from admission at 00h30 until 03h30, the foetal
heart rate was monitored half hourly
in accordance with the maternity
guidelines. Sister
Mangesana
however,
conceded that the record does not show that the foetal heart rate was
monitored before and after the contractions.
[14]
At 01h00 the foetal heart rate was 160bpm meaning the foetus was
still in good condition. The maternal condition was
also
assessed hourly.
[16]
At 01h30, the plaintiff was assessed by Dr
Beets
. The foetal
heart rate was 127 bpm. However, labour had not progressed because
cervix dilatation was still 6cm and the head position
was still at
4fifths above the pelvic brim.
[17]
Normal progress of labour requires dilatation at a rate of at least
1cm per hour in primigravidae and 1.5 cm per
hour in multigravidae.
Because plaintiff was a multigravidae it would have been expected of
her to have delivered at 03h30
if one moves on the basis that, she
was 6cm dilated on admission.
[18] If the
rate of dilatation is slower, the medical staff attending to the
patient must search for the cause of poor
progress.
[15]
Subject to the diagnosis of the cause of poor progress and the
condition of both the mother and the foetus, the medical staff
may
allow 2 hours of observation during which the uterine contractions
have to be normal.
[19]
Plaintiff’s labour was allowed to progress with a possibility
of vaginal delivery. However, from 00h30
to 02h30 there was
neither progress on cervical dilatation nor head descent because
plaintiff remained at 6cm dilated and the foetus
head at 4 fifths
above the pelvic brim.
[20] At
02h30, the plaintiff was again assessed by Dr
Beets
and it was recorded on the maternity case record that, the dilatation
curve had crossed the action line on the partogram.
It is
then that Dr
Beets
took the decision to refer plaintiff for caesarian section because of
obstructed labour with poor progress and gave instructions
that she
be tocolysed.
[16]
Plaintiff was given 30mg of Adalat to suppress contractions.
She was also catheterised. Plaintiff refused CTG saying
that she was
still in pains. The fetal condition at this stage was still
good.
[17]
[21]
Again at 03h00, plaintiff was given tocolytic drug, i.e 20mg of
Nifedipine. Although there are three regiments
for tocolyis, but the
first line regiment was the most suitable for the plaintiff.
There was no stock for the second line
regiment which would have been
a suppository. And the third line of regiment is the Salbutamol and
it is unsuitable to a patient
with a heart rate above 120 bpm. The
fetal heart rate was 129 bpm. Sister
Mangesana
recorded in the
maternity case record at 03h10 that she was unable to sedate the
plaintiff due to CTG not being traceable.
Sedation is given to
a patient to reduce labour pains. But before a patient is given
sedation the fetal condition has to
be known.
[22]
At 03h30, again Nifedipine (20mg) was administered to plaintiff. The
fetal heart rate was 137bpm. No information
recorded in the
partogram at 03h30 of the cervical dilatation and head position.
[23]
The information recorded in the clinical notes at 03h40 is that
plaintiff was handed over to the Emergency medical
services (EMS) “
in
a stable condition’’
and the fetal heart rate at that
time was 127bpm.
[24]
The next entry is at 04h45 by the medical staff at Cecelia Makiwane
hospital. The plaintiff was fully dilated
and the foetus head
was on the perineum. The foetal heart rate was recorded as 105
bpm. It was also recorded that the
patient was pushing all the
way from Bisho hospital and even on admission at Cecelia Makiwane
hospital, she was still pushing.
None of the medical staff from
Cecelia Makiwane hospital testified during trial.
[25]
The plaintiff delivered vaginally at 05h15 and her newborn baby was
in a compromised state. She testified
that her baby,
L
did not cry at birth, and he was immediately removed from her by the
nurses. She saw him later in the day at the Intensive
Care
Unit.
[26]
The maternity records shows that
L
was assigned Apgar scores
of 2/10 at one minute, 2/10 at five minutes and 4/10 at ten minutes
after birth. The Apgar score
is the test given to newborns soon
after birth and this test checks an infant’ heart rate, muscle
tone and other signs to
see if extra medical care or emergency care
is required.
[27] The
parties also submitted joint minutes of the paediatric experts,
[18]
the radiologists
[19]
and obstetricians.
[20]
In the joint minutes, the aforementioned experts agreed that the
brain injury to
L
occurred
intrapartum.
[21]
[28] The
paediatrician experts agreed that
L
was not breathing at 10 minutes after birth and had convulsions
following resuscitation and required supportive ventilation. They
further agreed that
L’s
head size at birth was normal with no signs of intrauterine growth
restriction (IUGR). In addition they excluded the antenatal
injury as the probable cause of
L’s
brain
injury, despite the plaintiff’s HIV status.
[22]
Further they are in agreement that
L
has
spastic and dyskinetic cerebral palsy (GMFCS 5).
[23]
They also agreed that
L
suffered
hypoxic ischaemic injury.
[24]
[29] Insofar
as the cause of the brain injury that
L
suffered,
radiologists are in agreement that the MRI scan excludes the genetic
disorders as a cause. They further agreed that
the MR study
displays chronic features related to a peripartum
[25]
hypoxic ischaemic injury of the brain. Further they agreed that
the imaging features are in keeping with Peripheral Watershed
(partial prolonged) hypoxic ischaemic injury.
[30]
Regarding plaintiff’s management of labour the obstetrician
experts are at loggerhead. Dr
Swan
who was called on behalf of the plaintiff is of the opinion that the
medical staff at Bisho hospital failed to offer appropriate
care to
plaintiff and the management of her labour was not according to the
guidelines for maternal care in South Africa.
His view was that
the failure to timeously deliver
L
is the cause of him to be born in extremely poor condition with signs
of hypoxic ischemic encephalopathy (HIE).
[26]
[31]
The manner in which the foetal condition was monitored and the
completion of the partogram by the medical staff
is not an issue. The
plaintiff’s case is that the defendant’s medical staff at
Bisho hospital were negligent in that,
they failed to offer her
appropriate care during her labour and also failed to deliver
L
timeously. As a result of such negligence,
L
was born in
poor condition and suffered brain damages.
[32]
On the other hand, the defendant denied that her medical staff were
negligent and pleaded that plaintiff and
L
received reasonable
maternity and obstetric care, there was no undue delay in attending
to her and that the treatment given to them
was in accordance with
the maternity guidelines and protocols of her department. The
defendant in support of its case presented
the expert evidence of Dr
Mbokota.
[33]
Dr
Swan
was very critical on the manner in which the medical
staff at Bisho hospital managed the plaintiff’s labour pains.
He
testified that nitrous oxide should have been administered and
that would have reduced the pains and in turn reduced her
non-cooperation.
This is neither here nor there because
such omission was not the probable cause of
L’ s
brain
injury.
[34]
To me the crux of this case lies on whether the management of the
plaintiff’s labour at Bisho hospital was
in accordance with the
maternity guidelines and protocols. As indicated above the
obstetrician experts expressed conflicting opinions
in this regard.
[35] Where
there are conflicting expert opinions, this Court
[27]
recently articulated the approach therein as follow:
“
49. The
correct approach to the evaluation of the conflicting experts
opinions offered to the court to assist it in determining
an issue
does not involve considerations of their credibility but rather
entails an examination of the opinions presented and the
analysis of
their reasoning, preparatory to the court in reaching its own
conclusion on the issues at hand”
[28]
.
[36] The
point of departure is that an expert witness must base his opinion on
facts and the court must be satisfied
that such opinion has a logical
basis. There are plethora of authorities that have stressed the
need for clarity as to the
facts upon which an expert’s opinion
is based.
[29]
[37]
The factual evidence herein is the plaintiff on admission was 6cm
dilated and the foetus head was stationed at
4 fifths above the
pelvic brim. Despite her non-cooperation and her continuously
bearing down, the medical staff were able
to assess her condition and
the foetal condition. From the common cause facts there were no signs
of fetal distress. The
existing risk factors as identified at
the initial assessment, namely the possible macrosomia, the
continuous bearing down and
the possible obstructed labour were known
by the medical staff at Bisho hospital as early at 00h30.
Coupled thereto it was
known that the intervention measures for an
obstructed labour was a caesarean section. When the night shift
started at 19h00
it was known that the scrub nurse was not on duty.
Despite the existing protocol, no arrangements were made to ensure
that
the hospital is able to perform caesarean section delivery 24
hours a day.
[38] In terms
of the guidelines on maternity care,
[30]
Bisho hospital as a district hospital is required to have staff and
facilities for performance of caesarean section delivery 24
hours a
day. Firstly, Dr
Mbokoto’s
evidence that because there was no scrub nurse and as such the
theatre facilities to perform caesarean sections on the night in
question changed the status of the Bisho hospital to that of a
community health centre has no logical basis.
[39]
Secondly, his view that even if there was a scrub sister it would
have been inappropriate to perform the caesarean
section at Bisho
hospital because of the fact that plaintiff was morbidly obese and
the possibility of an obstructed labour is
neither sound nor
supported by the factual evidence.
[40] On the
defendant’s own evidence, the reason why the caesarean section
could not be performed at Bisho hospital
was because of the
unavailability of the theatre sister on duty.
[31]
Dr
Beets’
decision to transfer the plaintiff to Cecelia Makiwane hospital was
not influenced by expectation of difficulties with the surgery
due to
morbid obesity of the plaintiff and serious co- existing medical
conditions. The so-called possible problems of anaesthesia
that
underlie Dr
Mbokota’s
opinion
were as matter of fact not a concern to the medical officer that was
managing the plaintiff’s labour.
[41] A court
is not bound to absolve a defendant from liability for negligent
medical treatment just because evidence
of expert witness, albeit
genuinely held is that the treatment in issue accorded with sound
medical practice.
[32]
[42]
Further in terms of the maternal care guidelines, all hospitals
should be able to perform an emergency caesarean
section within one
hour of the decision to operate. In the instant matter, the
decision for caesarean section was taken at
02h30. The
plaintiff should have been operated by no later than 03h30. Plaintiff
only delivered at 05h15 and her baby was
in extremely compromised
state. The medical staff at Bisho hospital failed to deliver
the plaintiff’s baby timeously.
There are two reasons for
saying that. Firstly, the possibility of an obstructed labour
was diagnosed on admission.
The appropriate intervention
measure for that is a caesarean section. There was no scrub
sister and as such it would not
have been possible to perform
caesarean delivery at Bisho hospital. That information was
known by the night supervisor and
also sister
Mangesana.
However
plaintiff’s labour was allowed to progress at Bisho hospital
and was not timeously transferred to Cecelia Makiwane.
Again at 01h30
there was no progress with the plaintiff’s labour. It is
not disputed that for a multigravidae the expected
dilatation is
1.5cm per hour. At 01h30 even though there was no progress with
her labour, plaintiff was not transferred to
another hospital with
theatre facilities. Secondly, even when the decision was taken
at 02h30 for a caesarean section, same
was not performed within one
hour of the decision to operate medical when the labour
progression crossed the action
line, a decision was taken to transfer
the plaintiff to Cecilia Makhiwane hospital for delivery by cesarean
section. Dr
Swan
testified that in terms of the maternity case
guidelines, all hospitals should be able to perform an emergency
caesarean section
within one hour of the decision to operate. There
is no exception to this ‘
one hour
rule’ and I
reject the opinion expressed by Dr
Mbokota
that the one hour
applies only if the cesarean section would be performed in the same
hospital. There is simply no logical basis
for his opinion.
[43]
For all the above reasons, I’m satisfied that on the balance of
probabilities the issue of negligence has
been established by the
plaintiff. The defendant’s medical staff at Bisho hospital
failed to provide plaintiff and
L
with proper medical care and
that they failed to deliver
L
timeously.
[44] It is
trite that there has to be a causal link between the defendant’s
actions or omissions and the harm
suffered by the plaintiff for a
successful delictual claim to succeed.
[33]
The existence of a nexus depends on the facts of a particular case.
On the facts herein, the brain injury to
L
was caused by the negligence of the defendant’s medical staff
at Bisho hospital. The failed to provide plaintiff and
L
with
proper medical care and treatment and they failed to deliver
L
by caesarean section within a hour of the decision to operate, the
failure to comply with the maternity care guidelines and protocol
which required Bisho hospital to be able to perform caesarean
delivery 24 hours a day and within an hour of the decision to
operate.
But for the above actions and omissions by the
defendant and her medical staff at Bisho hospital,
L
would not have suffered cerebral palsy.
[45]
In the results, the following order shall be issued:
1.
The separated issues relating to the merits are determined in favour
of the plaintiff and
accordingly, the defendant is held liable in
respect of the cerebral palsy suffered by
L
and the damages
suffered thereto, in both her personal and representative capacity on
behalf of
L
.
2.
The defendant is ordered to pay the plaintiff’s taxed or agreed
party and party costs
of the plaintiff’s action on the merits,
on the High Court scale, together with interest thereon calculated at
the prescribed
legal rate per annum and from 14 (fourteen) days after
date of taxation or agreement, as the case may be, to date of final
payment,
and with such costs to include:
2.1
costs up to and including 10 November 2023,
2.2
counsel’s costs for drafting heads of argument,
2.3
the reasonable costs of consultations, travelling and subsistence
of
plaintiff’s experts and legal representatives for purposes of
consultations and trial; and
2.4
the costs of report, supplementary reports,
qualifying expenses, joint minutes and reasonable day reservation
fees in respect of plaintiffs’ merit expert witnesses, in
respect of Dr Swan and any other experts who have filed Rule 36(9)
(a) and (b) notice in relation to the determination of the issue of
liability.
N GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
Plaintiff
:
Adv Y Malunga
Instructed by
: Attorneys
East
London
Counsel for the
Defendant
:
Adv Simoyi
Instructed by
: State Attorneys
East
London
Dates heard
on
: 16, 17, 19
October 2023; 10
November
2023
Judgment Delivered
on
:
19 March 2024
[1]
A G2P1 would describe a female who has been pregnant twice, had one
miscarriage at 8 weeks, and one live at term.
[2]
1966 (2) SA 428
(A) 430E.
[3]
On
23 January 2017.
[4]
The
sister on duty at labour ward on the night in question.
[5]
Which
is suggestive of a baby who was not in distress.
[6]
Ms
Mangesana: I was trying to get her co-operation because I
wanted her to understand that she must not push before she
was fully
dilated. I told her she must not push because that may even injure
the baby. As she was pushing continuously without
stop, she would
possibly injure the baby …...
[7]
Normal
blood pressure level is less than 120/60
[8]
The
size, number, lie, position and presentation.
[9]
Meaning
the baby is head down, chin tucked to chest, facing the mother’s
back.
[10]
The
CTG is used during labour to measure the fetal heart rate at the
same time it measures the contractions in the uterus to monitor
the
fetal for any signs of distress.
[11]
Fetal
macrosomia
[12]
A
partogram is a measure for evaluating the progress of labour
graphically.
[13]
Meconium
aspiration syndrome occurs when a newborn infant breathes a mixture
of meconium and amniotic fluid into the lungs around
the time of
delivery.
[14]
Mr
Malunga: Okay there is no entry before the contraction? Ms
Mangesana: No sir. Mr Malunga: Why is that? Ms Masengana :
Here I was using the transducer just to see the fetal heart rate . I
was not oscillating. Mr Malunga: Is that in
keeping with
proper record keeping? Ms Masengana : No, sir.
[15]
The
use of the Rule of Ps, meaning one has to check the condition of the
Patient, Power i.e. uterine contractions, the Passenger
(the fetus)
condition, ones has to look for signs of fetal distress, fetal
size,fetal lie, fetal presentation and position and
the level of the
presenting part and Passage - the pelvic size and shape, cervix .
[16]
Tocolysis
is an obstetrical procedure carried out with the use of medications
with the purpose of delaying the delivery of a fetus
in women
presenting preterm contractions.
[17]
Fetal
heart rate was 133 bpm.
[18]
Dr
Kara and Dr Kganane.
[19]
Dr
Macdonald and Dr Kamolane
[20]
Dr
Swan and Dr Mbokota.
[21]
This
is the period from the onset of labour until the end of the third
stage of labour.
[22]
She
was HIV positive which is a risk factor
[23]
Gross
Motor Function Classification System Level V meaning that all areas
of motor function are limited.
[24]
Lack
of oxygen to the brain.
[25]
That
is the period shortly before, during and immediately after birth.
[26]
This
is a type of brain damage caused by lack of oxygen to the brain
before or shortly after birth.
[27]
TY
obo MY v MEC for Health, Gauteng Province Case No: CA 18/2022
judgment delivered on 8 March 2024.
[28]
Michael
and another v Linksfield Park Clinic Pty Ltd and another
2001 3 SA
1188
(SCA) and Oppelt v Head, Department of Health Provincial
Administration: Western Cape
2016 1 SA 325
(CC) at 35.
[29]
AM
and another v MEC for Health, Western Cape
2021 3 SA 337
(SCA),
PriceWaterhouseCoopers Inc and others v National Potato CO-Operative
Ltd and another [2015] 2 ALL SA 403 (SCA).
[30]
Fourth
Edition 2016.
[31]
Yes
madam, do you know why this patient was referred to Cecelia
Makhiwane hospital?
Response:
As we do not have at Bisho, a theatre sister that night. She was
sick and the doctor decided at 02h30 [that] the patient
will not
deliver as we expected- that is why we started tocolysis so the
patient was transferred or referred.
[32]
Oppelt
(supra).
[33]
Lee
v Minister of Correctional Services
2013 2 SA 144
(CC).