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[2023] ZAECMHC 27
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A.S obo S v Member Of The Executive Council For The Department Of Health, Eastern Cape (CA 29/2022) [2023] ZAECMHC 27 (11 May 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO. CA 29/2022
In
the matter between:
A[....]
S[....]obo [S]
Appellant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF HEALTH,
EASTERN
CAPE
Respondent
JUDGMENT
Rugunanan
J
[1]
In an action instituted in the high court,
Mthatha, the appellant (plaintiff) claimed delictual damages on
behalf of her minor child
[S] against the respondent, the Member of
the Executive Council for Health, Eastern Cape Province (the
defendant). For convenience
the parties’ trial designations
will be retained in this judgment.
[2]
The claim arose from the child having
suffered a brain injury by an occurrence known as an intrapartum
hypoxic event during the
plaintiff’s labour and delivery on 25
– 26 December 2012 in the St Barnabas Hospital (the hospital).
[3]
The court a quo (Da Silva AJ), by
agreement between the parties, was called upon to decide only the
question of liability on the
merits and in a judgment delivered on 27
August 2020, dismissed the claim.
[4]
The merits involved a determination of
whether the plaintiff succeeded in establishing on a balance of
probabilities causal negligence
on the part of the clinicians and/or
the hospital staff of the defendant which caused the injury to S.
[5]
The appeal is with the leave of the learned
judge.
[6]
The effective basis upon which the trial
court found against the plaintiff is evinced in its judgment by
findings: (i) relevant
to the failure to treat and monitor the
plaintiff and her unborn child with the required and applicable
standards, the delay between
the diagnosis of foetal distress and the
performance of a caesarean procedure on the plaintiff being
attributed to the lack of
resource availability at the hospital; and
(ii) the occurrence of an unforeseeable sentinel event consequent to
the plaintiff’s
negative reaction to spinal anaesthesia while
undergoing the procedure.
[7]
The matters aforementioned were essentially
supported by the evidence of Dr Brannigan, an expert who testified
for the defendant,
the plaintiff contending that same were not
heralded in the defendant’s plea, and presented a departure
from joint minutes
between obstetricians and as between
paediatricians, Dr Brannigan being neither and thus not in a position
to contradict from an
expert point of view the effect of the common
cause facts set out in the joint minutes. The plaintiff contended
moreover that the
trial court did not properly direct itself to the
significance of the joint minutes.
The procedural context
for the determination of the appeal
[8]
Common cause at the hearing of the appeal
was that its prosecution did not comply with the prescripts of
Uniform Rule 49, this occasioning
an application by the defendant
declaring the appeal to have lapsed in terms of rule 49(7)
(d)
.
In opposition thereto the plaintiff, in answer, sought condonation
and reinstatement.
[9]
It is not intended to sprawl the length of
this judgment by extrapolating every minute detail of non-compliance,
suffice to state
that the key provisions of rule 49 which are
undeniably in breach are sub-rules (6)
(a)
;
(7)
(a)
;
(9); (13)
(a)
and
(b)
;
and (15). Among the fundamental complaints raised by the defendant
are: the absence of a properly compiled record having been
served and
filed; the failure by the plaintiff to have filed security; and her
failure to have taken any steps to seek condonation
despite a
considerable lapse of time.
[10]
In brief, the defendant’s stance
asserted prejudice compounded by the flagrant non-observance of the
prescripts of the rule,
the lack of diligence and attention to the
matter, and the delay in seeking condonation – all of which not
being adequately
explained in the plaintiff’s answering papers,
in particular the egregious default being incapable of the court’s
indulgence.
[11]
The answering affidavit by the plaintiff’s
attorney Mr Thulisile Mjulelwa does little to explain the delays in
the prosecution
of the appeal and the failure to have complied with
the abovementioned sub-rules. Where he relies on information supplied
to him
by other persons, no confirmatory affidavits have been filed.
[12]
The key explanation put forward is that the
matter was channelled through a case management process. The
plaintiff was granted leave
to appeal on 12 November 2021 and
was obliged to file the appeal record by 15 February 2022. The case
management procedure
took place during May 2022 long after the
obligations placed on the plaintiff by rule 49 had lapsed.
[13]
The
fallacy in the approach by Mr Mjulelwa is that case management
procedures can only apply to appeals once there has been compliance
with rule 49. Recourse to case management does not have the effect of
reviving an appeal that has lapsed. Asserting (albeit perfunctorily)
that prospects of success in the appeal are strong and that
condonation will not prejudice the defendant, does not lay a
sufficiently
candid basis for enabling this court to understand how
the default came about. The defendant’s position is that the
plaintiff
was at all times required to demonstrate good cause and
where she has failed to do so, she cannot escape the consequences of
her
attorney’s lack of diligence or the insufficiency of the
explanation tendered.
[1]
[14]
The plaintiff adopts the misguided approach
that the defendant had to remind her of the stages of non-compliance
complained of.
In heads of argument she holds the view that whatever
deficiencies existed could readily have been rectified upon notice to
cure
by the defendant. It was at all times the responsibility of the
plaintiff to have complied with the prescripts of the rule and to
have prepared a record that complied therewith. To contend otherwise
is, in the circumstances of the matter, disingenuous.
[15]
The events in the prosecution of the appeal
reveal a disquieting history indicative of a reckless disregard for
the rules of court.
By way of example, features of this history
include:
15.1 A
failure to have furnished the defendant with two hard copies of the
record;
15.2 An
explanation that the defendant was in possession of all documents
forming part of the trial record during the
trial and that it was
considered necessary only to serve the indices of the appeal and
leave it to the defendant to compile its
own record and attend to
pagination in accordance with the indices (Mention is made of the
fact that the indices were filed on
10 February 2022. In an exercise
inherently prejudicial the defendant incurred substantial costs in
trying to match the documents
it had with those in the indices. I
would add that the indices are wholly inadequate for failure to have
identified portions of
the transcript applicable to the evidence of
the witnesses – a failing that significantly contributed to
much frustration
and inconvenience in having to navigate through a
record with handwritten pagination that was at times dishevelled and
illegible,
and the record itself comprising of four lever-arch
volumes with pages that did not withstand regular use at times
becoming plucked
from the arch mechanism (even with delicate
handling);
15.3 A
failure to have taken steps in accordance with rule 49(7) which
provides that if the necessary copies of the
record are not ready
within the period stipulated in rule 49(6)
(a)
, the registrar
may accept an application for the date of the hearing of the appeal
without the copies of the record provided the
application is
accompanied by a written agreement between the parties that the
record may be filed late or, failing such agreement,
the plaintiff
delivers an application together with an affidavit in which the
reasons for such omission are set out;
15.4 The
inexplicable failure to furnish security in the appeal, despite the
unchallenged and clear obligation to do
so; and
15.5 A
preference for an unusual procedure of seeking condonation and
reinstatement in the answering affidavit without
having filed a
substantive application for such relief.
[16]
In raising issues pertaining to the
plaintiff’s non-compliance with the prescripts of rule 49, the
defendant, in my view,
was not engaging in an exercise of pedantry
for tactical reasons to avoid the appeal being determined on its
merits. The plaintiff’s
insouciant approach justified the
stance adopted by the defendant particularly as regards the
furnishing of security. The criticism
directed at the defendant for
not engaging with the plaintiff on this issue is unwarranted. The
fact remains that there was no
waiver of the right to security, and
the plaintiff did not make application to be released from the
obligation to furnish security
– nor if I might add did the
plaintiff seriously dispute the obligation ordained by the relevant
rule of court.
[17]
With
all indications pointing to the conduct of the plaintiff’s
attorney in failing to prosecute the appeal, counsel for the
plaintiff properly conceded culpability of the attorney but urged
that the importance of the matter and significantly prospects
of
success would have a moderating effect.
[2]
[18]
There is indubitable merit in the stance
adopted by the defendant that an acceptance of the opposition put up
by the plaintiff would
grant
carte
blanche
to litigants to ignore the
provisions of rule 49. My sense therefore is that the order at the
conclusion of this judgment would
signal a deterrent against future
infractions of the appeal procedure by litigants or their legal
representatives.
[19]
Reluctant to order an outright striking
from the roll we deemed it expedient in our discretion to hear
argument on the merits of
the appeal – the parties although
differing in their views on prospects of success acknowledged that
this was an eminently
sensible and pragmatic approach for dealing
with the matter.
The pleadings and
conduct of the trial
[20]
In the particulars of claim the plaintiff
asserts:
‘
15
As a consequence of the plaintiff’s prolonged and obstructed
labour and the non-performance
of an emergency caesarean section
delivery timeously and appropriately to deliver [S], [S] suffered an
intrapartum acute profound
hypoxic incident and neonatal
encephalopathy as a result of which she sustained severe brain damage
which resulted in her suffering
cerebral palsy, delayed development
milestones secondary to hypoxic ischaemic encephalopathy (HIE) that
occurred intrapartum.’
[21]
The essence of the claim was that the
defendant’s servants who attended to the plaintiff (and by
implication her unborn child)
were negligent in that they failed to:
‘
16.1.1
permanently, alternatively temporarily employ the services of
suitably qualified and experienced medical practitioners
who would be
available and able to manage the plaintiff’s labour and to
perform a caesarean section timeously and appropriately
as and when
required;
16.1.2
permanently, alternatively temporarily employ the services of
suitably qualified and experienced nursing staff,
including midwives,
as well as competent medical personnel who would be able to assess,
monitor and/or manage the plaintiff’s
labour and deliver the
plaintiff’s unborn child expeditiously and appropriately;
16.1.3 ensure
that the hospital was suitably, adequately and/or properly equipped
to render emergency medical treatment
to the plaintiff, including the
timeous and appropriate performance of a caesarean section if and
when required;
16.1.4 take
all reasonably required steps to ensure proper, timeous and
professional assessment of patients, in particular
the plaintiff, a
monitoring and management of labour, and transfer of patients to a
suitable hospital or medical facility when
indicated; and
16.1.5
implement such steps as could and would reasonably be required to
prevent the occurrence of the complication…
[22]
There
is much to be said about the measure of generality and lack of
clarity in the pleaded grounds of negligence. In
HAL
obo MML v MEC for Health, Free State
[3]
,
Wallis
JA, in circumstances similar to the present, condemned the failure to
have set out the material facts underlying the pleaded
grounds of
negligence as also the failure to have identified those for whose
conduct the defendant is alleged to have been liable,
who must at
least be identifiable. The particulars of claim were based entirely
on the imagination of the practitioner who drafted
them, and the
learned judge deprecated what he branded ‘this diffused,
unfocussed approach to the conduct of complex litigation’.
These sentiments are apposite in the present context.
[23]
For its part, the defendant does not escape
the censure attributed to the state of the plaintiff’s
pleadings. There is also
much to be said about how the defendant
formulated its plea, the plaintiff’s allegations in question
having elicited: (i)
a bald denial; and (ii) no defence being pleaded
by way of a confession and avoidance alerting the plaintiff to a
reliance on resource
availability/capacity problems or a sentinel
event occasioned by anaesthetic complications.
[24]
On these aspects the trial court, obviously
not alive to the defendant’s failure to have pleaded a
confession and avoidance,
determined the matter primarily on the
evidence tendered by Dr L Brannigan, an expert specialising in
anaesthesiology.
[25]
Despite Dr Brannigan’s caveat that
the issue relating to resource availability required extensive data
collection it appears
that the learned trial judge perfected her
judgment by considering the issue to have been fully ventilated. In
this regard she
erred in doing so, and so too by having regard to the
sentinel event without determining whether Dr Brannigan was
appropriately
qualified to have expressed an opinion thereon.
[26]
The
report by Dr Brannigan was no substitute for a proper definition of
the issues in the defendant’s plea preferably narrowed
down by
a pre-trial conference under rule 37.
[4]
[27]
The plaintiff testified and closed her case
after handing up joint minutes between Dr A Ebrahim and Dr M
Songabau, the obstetricians
respectively for the plaintiff and
the defendant as well as joint minutes between paediatricians Dr A
Redfern and Dr W Dibote
and joint minutes between radiologists Dr B
Alheit and Dr J Swarztberg.
[28]
Three witnesses were called for the
defendant; Dr Z Madikane who was on duty at the hospital on 25 –
26 December 2012 and
Dr B Mlandu who was on call. Last was Dr
Brannigan, an anaesthetist with a sub-speciality in critical care.
[29]
Except for Dr Brannigan, no other expert
witness testified during the trial.
[30]
The trial was conducted upon the acceptance
of the joint minutes concluded and signed by the parties’
expert witnesses setting
out areas of agreement.
The evidence
[31]
This is summarised only to the extent
considered necessary.
The plaintiff
[32]
The gist of the plaintiff’s evidence
is that she was examined at the hospital on 25 December 2012 at
21h32. She was already
in labour and her cervix had been about 8
centimetres dilated. She was unable to deliver her unborn child
through normal vaginal
delivery and was informed that she required a
caesarean procedure. This commenced at about 00h20 on 26 December
2012. Upon administration
of spinal anaesthetic, she got dizzy and
did not feel well. She recalled that attempts were made to
resuscitate her and that she
regained consciousness on 27 December
2012. Referring to the hospital records she indicated that the
caesarean procedure was completed
a 01h20 at which time baby [S] was
delivered.
Dr
Zetu Madikane
[33]
She is a former employee at the hospital
where she was on duty on 25 December 2012. At 22h50 she took the
decision to prepare
the plaintiff for caesarean surgery after
receiving a call that the patient was in foetal distress. Prior
thereto she was busy
with another patient for whom she had been
inserting a chest drain. The plaintiff presented as a primagravidia
and upon assessing
her, indications were that the plaintiff’s
labour was obstructed necessitating a caesarean procedure. She
contacted Dr Mlandu
for assistance. Dr Malndu was on call but not on
site. Surgery commenced at 00h20 on 26 December 2012, the reasons
being that Dr
Mlandu was in Mthatha about 40 kilometres away from the
hospital, the plaintiff needed to be counselled and, the operating
theatre
sterilised.
[34]
In theatre when the anaesthetic was
administered by her, the plaintiff desaturated and her pulse dropped.
Her blood pressure read
50/35 at which point the plaintiff was
critically ill and the oxygen supply to the foetus was at a critical
point. Put otherwise
the plaintiff ‘crashed’ and was near
dying. This necessitated resuscitation and discontinuing with the
surgery. At
the time she was positioned at the head of the plaintiff
and was separated by a screen from which side Dr Mlandu worked
on
the plaintiff’s abdomen. Dr Mlandu had to stop the surgery
and assist with the plaintiff’s resuscitation. Dr Mlandu
resumed after the plaintiff was resuscitated. Surgery would in any
event had to be stopped even if a third doctor was in attendance.
[35]
In cross-examination she stated that it
would have been ‘nice’ to have had another doctor on
site, though not necessary
as the doctors work according to hours.
She accepted that the plaintiff had to deliver with the least delay
which meant that surgery
had to be undertaken within the hour, namely
23h50 on 25 December 2012. Commenting about the delay from 21h34
on 25 December
2012 to 00h20 on 26 December 2012 in performing the
caesarean procedure, she maintained that the delay was beyond her
control.
[36]
In re-examination she explained that there
were two doctors on duty at the material time and that the same
situation prevailed on
public holidays. Pregnancies and deliveries
were managed this way and only one theatre was available at the
hospital.
[37]
On enquiry from the trial judge she
recollected that she had experience of similar incidents on at least
five occasions during 2019
but was unable to say whether foetal
distress was present.
Dr Banomsa Mlandu
[38]
She qualified as a doctor in 2008 and as a
paediatrician in 2018. On the night in question the hospital had only
one doctor on duty.
She was the second doctor on call but was at her
home in Mthatha because the hospital did not have accommodation. She
drove to
the hospital upon being contacted by Dr Madikane. Night-time
driving conditions were difficult and it took her about 30 to 40
minutes
to get there. On arrival, the theatre staff were in waiting
and she delivered the plaintiff’s baby by caesarean procedure.
[39]
Although not having an independent
recollection but gauging from the hospital records, surgery commenced
at 00h20 and was completed
at 01h20 on 26 December 2012.
Approximately 10 minutes after spinal anaesthesia was administered
and some 5 minutes after surgery
commenced, the plaintiff’s
oxygen saturation dropped, so did her blood pressure and pulse.
Because the plaintiff’s
condition was critical, surgery was
stopped so that the plaintiff could be resuscitated and stabilised.
As senior doctor she made
that judgment call and proceeded to assist
Dr Madikane. Resuscitation is a team effort, requiring a minimum of 4
people, hence
Dr Madikane would not have managed by herself.
[40]
Commenting on the medical records, she
explained that the drop in the plaintiff’s blood pressure
signified almost no blood
supply to the foetus. She agreed with Dr
Madikane’s description that the plaintiff was a dying patient.
[41]
Under cross-examination, she commented that
hospital cases tend to peak during public holidays and it would have
been ideal to have
had an additional doctor on call. She also stated
that instant action is required once foetal distress is detected and
that Dr
Madikane correctly made the call to prepare the plaintiff for
caesarean surgery that had to be carried out within the hour in terms
of the maternity care guidelines.
[42]
As for the term that the plaintiff
‘crashed’, she stated that this is not a medical term –
it is merely used to
describe a patient in need of resuscitation. The
plaintiff’s compromise occurred approximately 5 minutes after
surgery commenced.
[43]
At the time of testifying she performed
more than 100 caesarean procedures. Hypotension (i.e. the medical
term for low blood pressure)
is a normal occurrence when spinal
anaesthesia is administered. This is not unusual and can be managed.
But on the occasion of
the plaintiff it was the first time, as a
doctor in charge (as opposed to previous occasions when she observed
this during training),
that she experienced what she described as ‘a
fully established high spinal’ where, in addition to
hypotension, the
plaintiff’s heart rate dropped and her oxygen
saturations were lowered which affected her lungs taking oxygen
normally. She
described this condition as critical maintaining that
it could not have been foreseen. In the occurrence of an event such
as what
the plaintiff had experienced and being on the verge of
cardiac arrest, priority is accorded to the mother and not the
foetus.
Dr L Brannigan
[44]
He is a specialist anaesthesiologist with a
sub-speciality in critical care. He obtained these
qualifications in 2009 and in
2011 respectively. His sub-speciality
is in the area of theatre resuscitation medicine in critical care.
The purpose of his evidence
is best understood from the following
extract in the transcript:
‘
Court:
[W]ithout changing your
qualifications, but are you the best person
to say whether what the surgeon did – the surgeon, was correct?
Dr Brannigan:
Yes, I think so, and I will tell you why, because what the surgeon
did had nothing
to do with surgery, that had to do with my area of
expertise.
Court:
[F]or her to stop the
continuation of the C-section to assist (?)
Dr Brannigan:
Yes, and because, because my area of expertise is resuscitative
medicine, that
is in theatre resuscitation medicine in critical
care.’
[45]
The excerpt renders it unnecessary to
traverse Dr Brannigan’s evidence beyond the scope of his
expertise.
[46]
Testifying that he compiled a report dated
9 November 2019, he commented that it is likely that the foetus was
in distress from
21h34 (i.e. on 25 December 2012) and that a
caesarean section should have been expedited. In his assessment there
was a delay
exceeding acceptable limits between the diagnosis of the
foetal distress and the performance of the surgery. This delay, he
opined,
likely placed the foetus at risk for an intra-uterine hypoxic
event. However, the intra-operative hypotension and/or cardiac arrest
of the plaintiff contributed to the delivery of a child with low
Apgar scores and subsequent cerebral palsy (CP).
[47]
In addition, the report indicates that it
is standard protocol to continue with caesarean surgery during
periods of maternal haemodynamic
collapse to facilitate the rapid
delivery of the foetus to ensure minimal harm thereto. Dr Brannigan
notes that there was a delay
between 00h30 and 01h05 (i.e. on 26
December 2012) with the delivery of the foetus which is unexplained.
(I pause to state that
this was not canvassed with Dr Madikane or
with Dr Mlandu).
[48]
He moderated his report by stating that the
delay in delivering the child after the hypotensive and/or cardiac
arrest state breaches
best practice limits and requires explanation
as to the circumstances in the operating room at the time of the
incident. In this
regard he referred to context.
[49]
What followed was an addendum dated 15
November 2019 consequent to being provided with information as to
context. This related to:
(i) a high emergency burden in the hospital
at the time of the plaintiff's admission; and (ii) at the time of the
hypotensive scenario/cardiac
arrest, the senior clinician who was the
operating surgeon made the decision to un-scrub and assist the junior
clinician with the
plaintiff's resuscitation, which decision was
taken to ensure the survival of the mother.
[50]
Testifying in explanation of his first
report, Dr Brannigan was of the view that the delay in performing the
required surgery on
the plaintiff may have primed the foetus for an
event that would result in a brain injury. That delay primed the
plaintiff's susceptibility
to a sentinel event.
[51]
A sentinel event is profound in its
magnitude and acuity and directly related to the issue in question
such as a cardiac arrest
on an operating table. Such an event is
generally unforeseen or unforeseeable in the sense that there is no
accurate way of measuring
its expectation.
[52]
Once the event interceded, there was a dual
responsibility to the mother and to the foetus. The senior clinician
had to act aggressively
and the first duty was to try and assist the
mother because she was near death. The senior clinician took a
decision to stop the
surgery and to save the plaintiff.
[53]
The plaintiff’s management was
determined according to the procedure of ‘triage’. In
medical terms the procedure
requires that resources be applied to the
patient who is in most dire need thereof. This meant that resources
had to be allocated
to the plaintiff because her situation was more
compelling. The resources available in theatre (at the time a scrub
sister, and
a clinician performing the anaesthesia with a nursing
assistant) were utilised for resuscitating her.
[54]
In his opinion, the clinician who performed
the surgery acted appropriately. She made the correct call, both on
an ethical and technical
level to stop the surgery and exercised a
reasonable choice in assisting with resuscitation which resulted in
the survival of the
plaintiff. The resources available at the time
were consistent with the required standard for the theatre
environment (the context)
at that particular time.
[55]
Dr Brannigan confirmed his reports and
expressed the view that the addendum was not inconsistent with the
first report.
The joint minutes
[56]
These
are as between: (i) the obstetricians, Dr Ebrahim and Dr Songabau
[5]
;
(ii) the paediatricians, Dr Redfern and Dr Dibote
[6]
;
and (iii) the radiologists, Dr Alheit and Dr Swarztberg
[7]
.
[57]
The minutes have the following essential
features:
57.1 The
plaintiff was admitted to the hospital at 21h32 – her foetal
heart rate was not monitored from 21h34
until commencement of the
caesarean procedure;
57.2 There
was sub-standard foetal heart rate monitoring during labour until the
commencement of the caesarean procedure;
57.3 It is
unlikely that the child’s cerebral palsy was caused by an
antenatal event;
57.4 There
was delayed delivery ‘both in terms of delivering the baby
after the recognition of foetal distress
and in terms of delivering
the baby once maternal cardiac arrest occurred’;
57.5 The
delay led to the delivery of an asphyxiated baby with low Apgar
scores and signs of depression and required
administration of oxygen;
57.6 The MRI
scan excluded genetic disorders or previous or current infective or
inflammatory diseases as likely causes
of the child’s brain
damage;
57.7 The most
likely cause of the child’s cerebral palsy was intrapartum
asphyxia (i.e. too little blood and oxygen
to the brain during labour
and delivery);
57.8 The
injury was most likely caused during the peripartum period (i.e. the
period shortly before, during or immediately
after delivery).
Discussion and
liability
[58]
To begin with, the plaintiff’s
pleaded case is that baby [S] suffered an ‘intrapartum acute
profound hypoxic incident’
consequent to which she suffered
brain damage.
[59]
On the pleadings, the plaintiff attributes
the incident to negligence: (i) in the form of the defendant’s
failure to have
employed experienced medical practitioners who would
have been able to have timeously performed a caesarean procedure;
(ii) the
defendant’s failure to have employed experienced
nursing staff who would have been able to have assessed/monitored her
labour;
and (iii) the failure by the defendant’s hospital staff
to have taken reasonable steps to have assessed, monitored and
managed
her labour.
[60]
On appeal the plaintiff’s case on
negligence was limited to the failure to have adequately monitored
the plaintiff during
her labour – in particular, the failure to
have monitored the foetal heart rate and to have intervened timeously
to perform
a caesarean procedure.
[61]
The failure to have adequately monitored is
borne from the joint minutes signifying agreement that there was
substandard foetal
heart rate monitoring and the evidence by Dr
Madikane who effectively conceded negligence where there was a
failure to have undertaken
monitoring at 30 minute intervals.
[62]
On the available evidence negligence
appears to be common cause or not realistically in dispute.
[63]
The gist of the dispute pertains to
causality.
[64]
The argument advanced for the plaintiff is
that the lack of proper foetal heart rate monitoring and the failure
to intervene timeously
created a risk of hypoxic damage to the
foetus. According to the obstetricians, the risk of foetal distress
materialised during
labour. While accepting that the lack of adequate
monitoring constitutes a negligent omission, factual causation, it
was argued,
is to be found in the creation of a situation in which
the foetus was placed at risk of hypoxia which could have been
avoided had
there been proper and adequate monitoring.
[65]
The opposing position is the defendant’s
argument that inadequate monitoring in itself would not have averted
the hypoxic
outcome – it being the consequence of an
unforeseeable sentinel event.
[66]
The onus was at all times on the plaintiff
to prove on a balance of probabilities that the conduct complained of
caused the harm.
Accepting that the defendant’s servants were
negligent, the question that arises is, what caused the injury, and
when on
the probabilities did it arise?
[67]
The evidence by Dr Madikane and Dr Mlandu
does not answer this question. So too does Dr Brannigan’s
evidence. I am hesitant
to rely on his conclusion/s beyond what he
obviously stated was the purpose of his testimony. His expertise is
limited to assessing
the conduct of the surgeon and assumes no
relevance in the enquiry into causality. His views on this issue were
rightly criticised
during argument.
[68]
This
brings me to the joint minutes between the parties’ experts. It
has been confirmed by the Supreme Court of Appeal in
Bee
v Road Accident Fund
[8]
that where experts have met and compiled a joint minute, the joint
minute will be understood as limiting the issues on which evidence
is
needed – and in the absence of repudiation (i.e. fair warning),
the other litigant is entitled to proceed with the case
on the basis
that the matters agreed between the experts are not in issue.
[69]
The
effect of the above, informed by the approach in
Thomas
v BD Sarens (Pty) Ltd
[9]
,
is that
[10]
:
69.1 The
court is bound by certain facts agreed by the parties in civil
litigation even if it is sceptical about those
facts.
69.2 Where
experts are engaged by the parties to investigate those facts, and
where the experts have met and agreed
upon them, a party may not
repudiate the agreement unless it does so clearly and at the very
latest at the outset of the trial.
69.3 Absent a
timeous repudiation, the facts as agreed between the experts are
cloaked with the same status as facts
which are common cause on the
pleadings, or facts agreed in a pre-trial conference.
69.4
Where the experts have reached agreement on matters of opinion, the
parties are not at liberty to repudiate the
agreement – the
trial court is not bound to adopt the opinion though the
circumstances in which it would not do so are likely
to be rare.
[11]
[70]
In addressing the question posed earlier,
the focus shifts to the joint minutes. Beginning with the
obstetricians it is necessary
for the sake of clarity and
completeness to recapitulate their points of agreement in full:
‘
1.
Ms S[....] booked for antenatal care at Majola Clinic at about 24
weeks gestation during her first pregnancy
during 2012.
2.
She was a low-risk patient as evidenced by her good general health,
sober habits and an uncomplicated
antenatal course. It is therefore
unlikely that her baby’s cerebral palsy (CP) is due to an
antenatal cause.
3.
[Ms S[....] ] was admitted to Majola Clinic at 19h20 on 25/12/2012
and was transferred to St. Barnabas
Hospital.
4.
She was admitted to St. Barnabas Hospital at 21h32.
5.
At an unknown time (??h50) a diagnosis of obstructed labour was made
and an emergency caesarean section
was arranged.
6.
There was sub-standard heart rate monitoring in labour. The fetal
[12]
heart rate was not monitored from 21h34 until the commencement of the
caesarean section.
7.
The caesarean section was delayed by about 3 hours and commenced at
00h20 [on] 26/12/2012 due to operational
hiccups (shortage [of]
personnel, busy Christmas Eve). The best option could have been a
transfer to the nearest facility Mthatha
40 minutes away by ambulance
after an intra-uterine resuscitation.
8.
Due to such significant delay whereupon a severely asphyxiated baby
was delivered. He required resuscitation
at birth, supplemental
oxygen and admission to the neonatal unit for further treatment.
9.
The spinal anaesthetic that was administered for the caesarean
section was complicated by severe maternal
hypotension which
necessitated cardio pulmonary resuscitation and adrenaline injection
to the mother.
10. Baby was
diagnosed with spastic CP in childhood.
11. Her
recent MRI brain scan shows features of brain injury due to acute
profound hypoxic ischaemic injury.
12. The most
likely explanation for her CP is hypoxic ischaemic encephalopathy due
to foetal distress in labour. Fetal
distress was not detected because
of sub-standard fetal heart rate monitoring in labour and the
aggravating effect of a high spinal
anaesthetic in Ms S[....] which
ought to have been avoided or managed timeously.
13. CP would
probably not have occurred if Ms S[....] was monitored and managed
appropriately in labour and if the anaesthetic
complication was
avoided/managed timeously.’
[71]
Adverting
to the joint minute by the paediatricians, they agree:
[13]
‘
The
most likely time period of hypoxic ischaemic brain injury was the
peripartum period (i.e. the period shortly before, during,
or
immediately after delivery)’
and,
‘…
the
most likely cause of [S]’s cerebral palsy was intrapartum
asphyxia
[14]
.’
[72]
Analysis of the joint minutes indicates
that it is common cause between the obstetricians that the cerebral
palsy most likely resulted
from ‘hypoxic ischaemic
encephalopathy’ and obvious resultant brain damage ‘due
to fetal distress in labour’
that ‘was not detected
because of sub-standard fetal heart rate monitoring in labour’.
[73]
The plaintiff pleaded that the injury
occurred intrapartum, being as the term indicates, ‘during
labour’ which coincides
with the consensus between the
obstetricians that the injury occurred ‘in labour’. This
is clearly the period that
required scrupulous monitoring of the
foetal heart rate, an indicator of foetal distress, to ensure a
timely intervention in the
latter event. According to Dr Madikane
monitoring was necessary at 30 minute intervals. This never happened.
Hence negligence was
established consequent to poor management of the
plaintiff’s labour.
[74]
As for the timing of the injury the opinion
of the paediatricians attributes the injury to ‘the peripartum
period’,
which is the period shortly before, during or
immediately after delivery. One could probably exclude the last
mentioned possibility
which finds no basis in the evidence and
conclude that the injury occurred shortly before or during delivery.
Their opinion is
discernably more precise in identifying the timing
of the injury (as opposed to the cautious approach of the
obstetricians).
[75]
There can accordingly be little doubt that
the injury occurred during the period when the relevant clinicians
were required (but
failed) to properly monitor the foetal heart rate
and determine foetal distress.
[76]
Common
sense and simple logic dictates that the facts contained in the joint
minutes and the probabilities emerging therefrom will
inform the
conclusion arrived at on the question of causation (more accurately,
factual causation). In
Minister
of Safety and Security v Van Duivenboden
[15]
the Supreme Court of Appeal aptly summed up the position in the
following terms:
‘
A
plaintiff is not required to establish a causal link with certainty,
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.’
[77]
I am therefore satisfied that on the
available evidence (i.e. the joint minutes) and the probabilities,
causation has been established.
The order
[78]
In the result:
78.1 The
appeal is upheld with costs including the costs of two counsel.
78.2 The
costs shall exclude the preparation of the record on appeal.
78.3 The
appellant shall pay the respondent’s costs in the application
under Uniform Rule 49(7)
(d
), such costs are to be taxed on the
opposed scale and shall include the costs of two counsel where so
employed.
78.4 The
order of the court
a quo
is set aside and replaced with an
order in the following terms:
‘
It
is ordered:
1.
In respect of the separated issues relating
to the determination of the merits, these issues are determined in
favour of the plaintiff
and the defendant is ordered to pay damages
to the plaintiff in both her personal and in her representative
capacities such as
are proved in due course, in consequence of the
hypoxic ischaemic encephalopathy and brain injury together with the
sequelae thereto,
sustained by Sanelisiwe during her intrapartum
stage.
2.
The defendant is ordered to pay the
plaintiff’s costs of suit in respect of the determination of
the merits to date hereof,
such costs to include the costs of two
counsel and:
2.1
The costs of travelling and subsistence of plaintiff, plaintiff’s
legal representatives, and plaintiff’s
expert witnesses for
purposes of consultation and trial;
2.2
The costs of reporting, supplementary reporting (if any), preparation
of joint minutes, qualifying expenses
(if any), and reasonable day
reservation fees of plaintiff’s expert witnesses;
2.3
Interest on costs at the legal rate from date of allocatur to date of
payment.
3.
The aforementioned costs are to be paid
into the trust account of the plaintiff’s attorneys, Messrs
Mjulelwa Inc. Attorneys,
the details of which are as follows:
Account name: Mjulelwa
Attorneys
Bank: Standard
Bank, Mthatha
West
Account No: [....]
Branch code: [….]
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree.
J.
E. SMITH
JUDGE
OF THE HIGH COURT
I agree.
D.
O. POTGIETER
JUDGE
OF THE HIGH COURT
Appearances:
For
Appellant:
A. G.
Dugmore SC and P. Mnqandi
Instructed
by:
Mjulelwa Inc.
Mthatha
Tel:
047-531 2845 / 079 341 2067
(Ref.
T. Mjulelwa)
For
Respondent:
H. J. van der Linde SC and N.
James
Instructed
by:
Norton Rose Fulbright
c/o
Smith Tabata Attorneys
Mthatha
Tel:
011-685 8998 / 060 553 0510
(Ref:
S. Chendip)
Date
heard: 13
February 2023.
Date
delivered: 11
May 2023
[1]
Saloojee
v Minister of Community Development
1965 (2) SA 135
(AD) at 141B-E.
[2]
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(AD) at 532E.
[3]
HAL obo
MML v MEC for Health, Free State
[2021] ZASCA 149
paras 189-199.
[4]
HAL
supra
para 196.
[5]
Record, exhibit A.
[6]
Record, exhibit B.
[7]
Record, exhibit C.
[8]
Bee v
Road Accident Fund
[2018] ZASCA 52
para 66.
[9]
[2012] ZAGPJHC 161 161, and see
Bee
supra
at fn 9 para 64.
[10]
See also
Malema
v Road Accident Fund
[2017] ZAGPHC 275
para 92 wherein the summarised exposition has been
approved.
[11]
Such as where the trial court is dissatisfied with the agreement and
alerts the parties to the need to adduce evidence on the
agreed
material:
Bee
supra
fn 9 para 73. See further the judgment by Govindjee J in
Jonathan
Peter Krebs v Road Accident Fund
,
Unreported ZAECQBHC Case No 2734/2020 (25 April 2023) paras 37-39 in
particular fn 12 quoting Wallis JA’s concurring judgment
in
HAL obo
MML v MEC for Health, Free State
2022 (3) SA 571
(SCA) para 229 where the learned judge of appeal
explains the position as follows: ‘In accordance with
Bee
,
if they agree on issues of fact and the appropriate approach to
technical analysis, the litigants are bound by those agreements
…
If the experts have reached agreement on a common opinion on a
matter within their joint expertise, that is merely part
of the
total body of evidence. The court must still determine whether to
accept the joint opinion.’
[12]
As spelt in the joint minutes.
[13]
Paras 5 and 6.
[14]
The word is misquoted as ‘hypoxia’ in appellant’s
heads of argument.
[15]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 26.