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[2023] ZAECELLC 10
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ZM obo SM v Member Of The Executive Council Department Of Health, Eastern Cape (EL314/2015; 714/2015) [2023] ZAECELLC 10 (5 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO: EL314/2015
ECD
NO: 714/2015
(1)
REPORTABLE: NO/YES
(2)
OF INTEREST TO OTHER JUDGES: NO/YES
(3)
REVISED NO/YES
DATE:
05/05/2023
In
the matter between:
ZM
obo
SM
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH, EASTERN CAPE
Defendant
J U D G M E N T
DREYER
AJ:
In
this matter I make the following order:
1.
The plaintiff’s
claim is dismissed.
2.
No order as to costs
INTRODUCTION
[1]
The
plaintiff, ZM, gave birth to her daughter, SM 29 September 1996, by
caesarean section, after a protracted and difficult labour,
in the
Frere Hospital, East London. SM suffered a hypoxic ischaemic injury
(HIE) of the brain prior to birth, resulting in neonatal
encephalopathy (NE) and cerebral palsy (CP) (“the injury”)
[1]
.
As a result of the injury, SM is a quadriplegic. SM never learned to
walk, is unable to attend to her basic hygiene needs, is
unable to
dress herself has a pronounced slur, making it difficult for her to
be understood.
[2]
ZM seeks to claim damages
against the defendant, the MEC for the Department of Health, Eastern
Cape (“MEC”) both in
her personal capacity and in her
capacity as well as the mother and natural guardian of SM, for the
injury SM suffered as a result
of the alleged negligence of the Frere
Hospital’s medical and/or nursing staff (“the defendant
employees”) during
ZM’s labour and delivery of SM.
[3]
ZM’s claim is one in
delict. As in all delicts, ZM as the party alleging injury must prove
three elements. Firstly, that there
was an injury. SM’s injury
is not in dispute. Secondly, that the defendant’s employees
were negligent in the care of
ZM and by extension SM. Thirdly that
SM’s injury was caused by the negligence of the defendant’s
employees. The latter
two elements are questions I am called to
determine.
[4]
ZM alleges that the
defendant’s employees were negligent in the failing to:
4.1
property assess and
examine the plaintiff on her admission;
4.2
note or appreciate that
the plaintiff had developed complications;
4.3
monitor the plaintiff’s
labour and foetal well-being appropriately and with sufficient
regularity;
4.4
monitor the plaintiff
labour appropriately, timeously, with the sufficient frequency;
4.5
arrange timeously for the
transfer of the plaintiff to an appropriate facility for the
performance of the caesarean section;
4.6
inform the plaintiff of
the reasonable or expected risk associated with an unduly prolonged
period of labour or failure to timeously
perform a caesarean section;
4.7
prevent SM from suffering
cerebral damage at birth.
[5]
In the course of the
trial, ZM’s representatives, only canvassed the grounds of
negligence set out in 4.3, 4.4, and 4.7 above.
ZM contention is that
SM’s injury and the resultant cerebral condition is due to the
substandard and negligent treatment
ZM received at the hands the
defendant’s employees, during ZM’s labour and birth of
SM, which was preventable.
[6]
The MEC denied her
employees were negligent or provided substandard care to ZM. The MEC
pleaded that her employees did all they
could to prevent SM from
suffering cerebral damage. In addition, the MEC pleaded that should
such negligence be proven; this negligence
did not cause SM’s
cerebral condition.
[7]
At the commencement of the
trial, the parties requested a separation of the merits and quantum.
I granted such order, by agreement,
in terms of uniform rule of court
33 (4). The trial proceeded solely on the merits, more specifically
the determination of the
questions of negligence and causation.
LACK
OF MEDICAL RECORDS
[8]
The only medical records
tendered in evidence at trial were SM’s “Road to Health
Chart” and her hospital records
from various units of the Frere
Hospital, including the paediatric neurodevelopment clinic. The Road
to Health Chart, is not itself
a medical record. It is merely a
recordal of a child’s health immunisations and health
interventions at a primary health
care facility. As such it is
secondary evidence.
[9]
No antenatal nor neonatal
nor maternity records were tendered in evidence. These records record
the medical attention provided and/or
medication given to the mother
in the instance of the antenatal and maternal records and the
new-born infant in the instance of
the neonatal record. The records
are critical evidence of the standard and extent of care that the
defendant employees provided
to both ZM and SM. Absent these medical
records, there is no objective recordal of the actual care that
either ZM or SM received
from the defendant’s employees. There
was no explanation from either party as to the absence of these
medical records. The
parties accepted that SM’s Road to Health
Chart and her hospital records from the age of 6 months, were the
only available
medical records. Though I specifically requested the
parties to address me on the absence of medical records in argument,
regrettably,
the plaintiff’s representative did not do so.
[10]
The
defendant representative argued that, given the lapse of time between
the birth of SM in 1996 and the institution of the action
in 2015
when SM was 18 years old, it is not surprising that the records were
not available. In the absence of evidence by the defendant
providing
an explanation for the missing medical records, this line of argument
by the defendant’s representative is mere
speculation. The
failure by the MEC to account to the court for the absence of medical
records at a health facility under her control
is unfortunate.
[2]
[11]
The defendant’s
representative argued that the absence of medical records is a
neutral factor, as both parties were equally
hampered by the
unavailability of medical records. While this may be factually true,
this is not the legal standard.
[12]
The
implications for missing medical records are articulated by Spilg J
in
Khoza
v The MEC for Health and Social Development, Gauteng
:
[3]
“
In
summary, the failure to produce the original medical records which
are under a hospital’s control and where there is no
acceptable
explanation for its disappearance or alleged destruction –
a.
may result in the inadmissibility of ‘secondary’ evidence
if the interests of justice so dictate,
whether such evidence is of a
witness who claims to have recalled the contents of the lost document
or to have made a note of its
contents on another document;
b.
cannot of its own be used to support an argument that a plaintiff is
unable to discharge the burden of proof because
no one now knows
whether the original records would exonerate the defendant’s
staff from a claim of negligence;
c.
may result in the application of the doctrine of res ipsa loquitur in
an appropriate case;
d.
may result in an adverse inference being drawn that the missing
records support the plaintiff’s case in matters
where the
defendant produces other contemporaneous documents that have been
altered, contain manufactured data or are otherwise
questionable,
irrespective of whether the evidence of a secondary witness called in
support is found to be unreliable or untruthful.
”
[13]
These
observations by the court in the Khoza decision are apposite to this
matter, particularly as no medical records exist. Both
parties
accepted the secondary evidence recorded in the Road to Health
Chart.
[4]
[14]
Pillay
J, in
Madida
obo M v The MEC for Health, Province of KwaZulu-Natal
,
[5]
takes the implications for missing medical records further is by
addressing the absence of medical records in light of the obligations
of employees of a MEC for Health in terms of the National Health
Act
[6]
and the Health
Professions Council’s Guidelines.
“
[10]
In terms of
sections
13
and
17
of
the
National
Health
Act 61 of 2003
,
the
defendant’s
employees have a statutory duty to preserve and protect such hospital
and medical records. Failure to do so opens
the defendant’s
employees to criminal prosecution
and
liable on conviction to a fine or to imprisonment for a period not
exceeding one year or to both such fine and imprisonment
.
[11]
The Health Professions Council’s Guidelines on the keeping of
patient records dated May 2008 applies to health care practitioners
in both the private and public service. It identifies what
constitutes health records, why documents or materials should be
retained
and what information is compulsory for recording. It
prohibits alteration of records and requires reasons for any
amendments to
be specified on the record. Errors may be corrected but
the date of the change must be entered, and the correction signed in
full.
The original record must remain intact and fully legible.
Additional entries at a later date must be dated and signed in full.
The guidelines also provide for the retention of health records,
which must be stored in a safe place and if stored electronically
then safeguarded by passwords. In the case of minors, their records
must be kept until the minor’s twenty-first birthday.
For
mentally incompetent patients the records must be kept for the
duration of the patient’s life. Health records kept in
a
provincial hospital or clinic including the records of minors and
mentally incompetent patients may only be destroyed with the
authority of the Deputy Director General concerned.
[12]
I have detailed the
National
Health Act and
Guidelines
to emphasise their importance and the rationale and seriousness with
which the health professions view the keeping of
patients’
records. So, when they are not available when they should be there is
potentially a breach of the rule of law and
codes of good practice.
Non-compliance with statutory requirements and codes of good practice
that impact directly on the health
of members of the public is cause
on its own to refuse the adjournment. To do otherwise would lead to
the mistaken inference that
the court is prepared to condone or
tolerate the illegality. The lack of a bona fide explanation for the
unavailability of the
records fortifies my opinion.
”
[15]
While
National Health Act
was
not enacted in 1996, and the pre-emptory provisions relating to
record keeping were not application at the time of ZM’s labour
and SM’s birth, there has always been a duty on medical
professionals, including the employees of the MEC, to ensure that
medical records are retained.
[16]
Medical
professionals are required to register with the Health Professions
Council (HPCSA)
[7]
. The HPCSA
Professional Ethical, Guidelines record the obligation to retain
medical records thus:
“
Health
records should be stored in a safe place and if they are in
electronic format, safeguarded by passwords. Practitioners should
satisfy themselves that they understand the HPSA’s guidelines
with regard to the retention of patient records on computer
compact
discs. Health records should be stored for a period of not less than
six (6) years as from the date they became dormant.
In the case of
minors and those patients who are mentally incompetent, health care
practitioners should keep the records for a
longer period. For minors
under the age of 18 years health records should be kept until the
minor’
s 21
st
birthday because legally minors have up to three years after they
reach the age of 18 years to bring a claim. This would apply
equally
for obstetric records …
Notwithstanding
the provisions … above, the health records kept in a
provincial hospital or clinic shall only be destroyed
if such
destruction is authorised by the Deputy Director-General concerned
…
”
[8]
[17]
These guidelines emphasise
the importance of the retention of medical records, in particular as
far as these relate to children.
Of critical importance in this
matter, is that provincial hospital, such as the Frere Hospital, may
only destroy medical records
if so authorised by the deputy director
general. No such evidence was led, that any person had authorised the
destruction of the
missing medical records.
[18]
The absence of medical
records was a factor raised by all the experts, as limiting their
ability to give definitive opinion on the
cause and timing of SM’s
injury.
[19]
Despite the absence of
medical records under her control, the defendant pleaded a bare
denial that her employees were negligent.
Pleading to each aspect of
negligence as pleaded by the plaintiff, that the defendant
“
categorically
denied negligence and put the plaintiff to the proof
”.
[20]
Pillay
J, in
Madida
,
considered such pleading as “
to
plead ‘no knowledge’ and to put to the plaintiff to the
proof of facts that should be easily ascertainable was not
a plea in
good faith. It is hardly the response of a caring health service.
Proof as to whether a medical doctor had attended to
the plaintiff
had to come from the hospital staff on duty at the time and from
their records
”.
[9]
[21]
The observations of the
court in Madida are equally applicable to the facts in this matter.
There was no explanation by the defendant
for the lack of ZM’s
medical records, despite the obligations of the MEC’s employees
to retain such records.
[22]
The only medical record
available of evidentiary value in the determination of SM’s
injury was the Road to Health Chart. This
was the sole medical record
referred to by the parties in evidence. The information as recorded
on the Road to Health Chart is
accepted by both parties
inter
alia
.
22.1.1.
the name of SM, her date
and place of birth (29 September 1996 at the Frere Hospital), SM’s
birth length (52cm) and her birth
head circumference (36cm). These
measurements were taken on 9 October 1996;
22.1.2.
under the heading
“
problems during
pregnancy, birth or neonatally
”
is recorded, caesarean section, severe HIE, nursed on a ventilator x
2 days, the Apgar scores at one minute- 2/10 and at
ten minutes -
3/10;
WITNESSES
[23]
ZM was the only factual
witnesses who testified. No factual witness testified for the
defendant.
[24]
Both the plaintiff and
defendant called an Obstetrician and Gynaecologist (Dr Nyjapa for the
plaintiff and Dr Wright for the defendant)
and a Paediatrician (Dr
Maponya for the Plaintiff and Dr Ramsurpdam; a Neuro Developmental
Paediatrician).
[25]
The parties agreed to
contents of the joint minutes of the Radiologists (Dr Zulu for the
plaintiff and Andronikou for the defendant)
in relation to the
magnetic resonance imaging (MRI) brain scan SM underwent on 21
October 2015. The joint minute was accepted into
evidence without
either of the radiologists testifying.
COMMON
CAUSE FACTS
[26]
The
common cause facts as recorded in the pretrial minutes were the facts
recorded in the Road to Health Chart set out above and
[10]
:
26.1
the plaintiff is acting in
her personal and representative capacity as the mother and natural
guardian of SM, born on 29 September
1996, at the Frere
Hospital, East London;
26.2
the plaintiff was admitted
to the Frere Hospital on 29 September 1996 for the birth of SM;
26.3
SM was delivered by
caesarean section at approximately 16h00, with a diagnosis of foetal
distress;
26.4
at birth, SM was floppy,
did not cry and asphyxiated with low Apgar scores, requiring oxygen
therapy management in ICU;
26.5
SM was born with a large
foetal head size, which might be indicative of cephalopelvic
disproportion;
26.6
SM suffers from dyskinetic
quadriplegic cerebral palsy or athetoid cerebral palsy;
26.7
MRI study, as agreed to by
the Radiologists,
26.7.1.
displays
hypoxic ischaemic injury of the brain with central basal ganglia
thalamic pattern, which likely occurred in the peri-
and/
intrapartum
[11]
, period of a
brain of term maturity;
26.7.2.
suggests that it unlikely
that genetic disorder or congenital malformation are a cause of the
child’s brain damage.
27.8.
The cause of SM’s neonatal encephalopathy is a severe hypoxic
encephalopathy according to the Road
to Health Chart.
[27]
Despite the agreement
between the parties that SM was “floppy at birth and did not
cry” the defendant’s experts
disputed this, as there were
no medical records to support this fact. I will return to this later.
PLAINTIFF’S
EVIDENCE
[28]
ZM testified that she went
into labour in the early hours of 26 September 1996. She woke at
03h00 in the morning and noticed
that she had blood spotting and
mucus in her underwear. This was ZM’s second pregnancy. ZM woke
her husband and told him
she was in labour. ZM’s husband left
their home to find to transport to convey ZM from their home in
Idutywa to the Frere
Hospital in East London. The transport ZM’s
husband secured, left Idutywa at approximately 07h00. ZM arrived at
the Frere
Hospital at approximately 09h00 and was admitted.
[29]
ZM was examined vaginally
on her admission. The attending nursing sisters told her that she was
“far” from giving birth.
She was told to walk in the
ward’s passages to accelerate the labour. After an about hour,
she was again examined vaginally
by the attending nurse, who, once
more, told her that her labour had not progressed. This nurse called
another nurse, a male nurse
and told him that ZM was not dilating.
The first nurse asked the second, the male nurse, to call a third
nurse to come to examine
ZM and find out why ZM was not dilating and
had not yet given birth. The third nurse arrived and examined ZM,
once more vaginally.
[30]
ZM testified that that
this third nurse told her she was going to administer a gel vaginally
to accelerate ZM’s labour. ZM
testified that after
administration of the gel her labour contractions intensified; the
contractions were severe and painful. ZM
continued to walk the
corridors of the ward, as the nurses instructed until the
contractions became too severe for her to continue.
[31]
After about another hour
ZM testified she was again examined vaginally, for the fourth time
The nurses told her she was still not
dilating enough to give birth.
The nurses administered a second dose of the gel. The labour
contractions increased and were even
more painful.
[32]
ZM testified that
approximately an hour after the second application of the gel, the
nurses once more examined her vaginally. This
was her fifth vaginal
examination. The nurses told ZM that she was still “far”
from giving birth. ZM testified that
the nurses administered a third
dose of the gel vaginally, to accelerate her dilation.
[33]
ZM testified that the
nursing staff only examined her vaginally and did not monitor the
foetus in the same manner that the foetus
was monitored when she had
attended at the Idutywa clinic for her prenatal check-ups. There, ZM
testified, an instrument had been
used to listen to the foetus’s
heart rate. The nurse placed the instrument on her ear and the other
side of the instrument
against ZM’s stomach to hear the
foetus’s heart rate. This was the only way ZM knew that a
foetus was examined. ZM
testified that no instrument was used to
monitor her or the foetus while she was in labour from the time she
was admitted at the
Frere Hospital.
[34]
ZM testified that at about
13h00, soon after the third occasion gel was administered, another
nurse came into the ward, as the attending
nurse took a lunch break.
ZM overhead the nurses speaking to one another and discussing her
condition namely that her labour had
not progressed despite the
application of the gel.
[35]
In the absence of
available hospital records, there is no evidence as to what “gel”
was administered to ZM, the dosage
of such gel in each of the three
applications or the specific time lapse between administration of
each dosage.
[36]
ZM ’s evidence was
that she continued to have labour pains throughout the day which
increased in intensity.
[37]
After the third dose of
the gel, ZM testified the contractions were too painful for her to
continue walking and she lay down. ZM
testified that she became
confused, drowsy and dizzy. She felt powerless. ZM testified she must
have fallen asleep. She had no
clear recollection of what happened
after the receiving the third dose of the gel. ZM conceded in cross
examination that she does
not know or cannot recall if she was
examined again that afternoon or if the foetus was examined.
[38]
Sometime later in the
afternoon, ZM testified, she became aware of two medical doctors and
a nurse standing over her. One of the
doctors told ZM that not only
was she in trouble but that the baby was in trouble. This medical
doctors assisted her to sign a
consent form for her to undergo a
caesarean section.
[39]
It was this doctor’s
voice asking her the sign the consent form that woke her. ZM says she
woke to the words “
Mama
sign here
”. ZM
had no recollection if these doctors examined her or the foetus
before asking her to sign the form.
[40]
ZM was taken into theatre
immediately. Another doctor explained to her that she would be
injected into her back so that she would
have no feeling in her lower
body, only her upper body. ZM was given an epidural injection.
[41]
ZM testified she was then
operated on; SM was “taken out”. ZM was not given SM to
hold. ZM did not see SM. ZM did not
hear SM cry. The medical staff
took SM to examine. ZM overheard the medical staff saying the word
“
floppy
”.
SM was taken away.
[42]
On the 30 September 1996,
ZM saw the male nurse who had examined her during labour, the day
before. She asked him where her baby
was as she had not yet seen her.
The male nurse told her SM was in intensive care (“ICU”)
and ZM could see SM the next
day.
[43]
ZM saw SM for the
first time three days after her birth. SM was in an incubator on
oxygen and has been fed intravenously.
There was foam on SM’s
mouth, there were tubes inserted into her nose, one hand was swollen
from the feeding drips inserted
into it. SM remained in ICU for one
week, fed intravenously.
[44]
SM was unable to suckle
when she was discharged from ICU and had to be taught to latch to
ZM’s breast. ZM remained at the
Frere Hospital for another two
weeks. All this time SM never cried.
[45]
ZM was told on her and
SM’s charge from the Frere Hospital to bring SM back after 6
months for a check-up. At this consultation
ZM was told that SM had
cerebral palsy and would never walk.
[46]
ZM testified that having a
physically challenged child is painful and exhausting as she has to
constantly care for SM. This has
been ZM life ever since SM’s
birth.
[47]
These facts are not in
dispute.
EXPERT
EVIDENCE
[48]
The joint minute of the
radiologists, Dr Zulu for the plaintiff and Dr Andronikou for the
defendant, was accepted by the parties.
The joint minute recorded
agreed interpretation of MRI scan taken on 21 October 2015.
48.1
The
MR study displayed
hypoxic ischaemic
injury of the brain with a central basal ganglia thalamic pattern
which most likely occurred in the peri/intrapartum period in
the
brain of term maturity.
48.2
That the brain injury is
in its chronic stage of evolution.
48.3
Infective disease is
unlikely to be the cause for the combined findings demonstrated on
the various MRI sequences.
48.4
Genetic disorder and/or
congenital malformation as the cause of the child’s brain
damage is unlikely.
[49]
A
central basal ganglia thalamic pattern of injury
is
especially associated with motor impairment, while the watershed
pattern of injury, seen after more prolonged and/or repetitive
antenatal events, is more often associated with cognitive
problems.
[12]
CP is a motor impairment disorder.
[50]
While the radiologists
agreed to the extent and cause of the injury, neither in their
individual reports made a determination of
the timing of the injury.
This they opined it was a matter for the appropriate specialist in
the fields of neonatology, neurology,
and obstetrics to consider with
reference to the neonatal and obstetrical records determine the
underlying clinical factors and
the probable timing of the brain
injury.
[51]
When the injury occurred
in the inter-partum period (that is from the onset of labour until
the placenta is pushed out) is relevant
for consideration of the
questions of both negligence and causation.
Evidence
of the Obstetricians
[52]
In their joint
minute of Dr Ndjapa Ndamkou and Dr Wright agree that, as SM was
delivered by caesarean section with a diagnosis
of foetal distress,
there was an element of foetal monitoring present.
[53]
SM’s large foetal
head size was indicative of cephalopelvic disproportion. While this
was canvassed in evidence, neither expert
ascribed this as a cause
SM’s injury.
[54]
SM was asphyxiated at
birth with a low Apgar score and required management in ICU. The
injury occurred in the intra partem period
of labour, causing SM’s
asphyxia.
[55]
In the absence of neonatal
and obstetrical medical records, the experts of the respective
parties took diametrically opposing positions
as to when the injury
occurred.
[56]
Dr Ndjapa interpreted the
joint minute of the radiologist that it was indicative of a slow
deprivation of oxygen to the foetus’
brain, over an extended
period of time.
[57]
Dr Ndjapa’s position
was supported by Dr Maponya, opined that an injury of the central or
basal ganglia was evidence of prolonged
damage to the basic
functionality of the foetus, in particular, a lack of oxygen and
blood. This was indicative of a shunting down
of all but the most
critical bodily functions or organs.
[58]
In comparison, Dr Wright,
was of the view that the damage to the central basal ganglia
indicated an acute or sentinel event.
The nature of a sentinel event
was such that the speed at which the emergency arises, nothing can be
done to prevent the injury.
[59]
The conclusions reached by
Dr Ndjapa and Dr Wright, as to the timing of the injury, was not
contested by either party’s representatives
in cross
examination.
[60]
Dr Ndjapa testified that
the application of a gel to induce labour should be accompanied by
constant monitoring of both the mother
and the foetus, as inducing
labour increases the risk in labour. Severe uterine contractions
could lead to reduced blood in the
placenta and consequently the
foetus. Another factor was the disproportion between sizes of the
mother’s pelvis and foetus’
head. This could compromise
oxygen to the brain of the foetus. Constant monitoring would have
allowed the defendant’s employees
to determine the foetal
stress timeously.
[61]
Consequently, Dr Ndjapa
opined that there was inadequate and inappropriate monitoring of ZM
labour during the intrapartum period.
[62]
That said, Dr Ndjapa
conceded under cross examination that in the absence of the medical
records, not knowing how long the foetal
distress continued, he could
not exclude the possibility of a sentinel event, but that in his
opinion it was an unlikely possibility.
[63]
Dr Wright’s opinion
was in light of the apparent sentinel event indicative in the MRI
scan, and the fact that ZM was taken
into theatre for an emergency
caesarean immediately after being examined by two doctors, ZM
received adequate and appropriate care
during her labour. Dr Wright
testified that when a woman is examined during labour, so too is the
foetus. The “
two
go hand in glove”.
Evidence of the
Paediatricians
[64]
Dr Maponya and Dr
Ramsundhar disagreed regarding the cause of SM’s injury. Dr
Maponya’s accepted the recordal on the
road to health chart of
sever hypoxic
encephalopathy
.
Despite this being a fact as agreed to by the parties, Dr Ramsundhar
speculated that neonatal jaundice and neonatal sepsis could
create a
similar clinical picture. The defendant led no factual evidence to
support Dr Ramsundhar ’s proposition. I consequently
reject
this proposition as mere speculation.
[65]
Dr Maponya and Ramsundhar
applied Volpe’s criteria to ascertain whether the intrapartum
asphyxia had occurred. They agreed
that three of the four criteria
were met, mainly, foetal distress, resuscitation at birth and
respiratory affectation requiring
ventilation for two days. Both
agreed that the presence of a neurological syndrome during the first
few hours of SM’s life,
the last of Volpe’s criteria is
unknown, in the absence of medical records.
[66]
By application of the
American College of Obstetrician and Gynaecological Criteria to
confirm the intrapartum asphyxia, the Dr Maponya
and Ramsundhar
agreed that.
66.1
Apgar scores were less
than five immediately after birth.
66.2.
MRI scan shows hypoxic
ischaemic injury which likely happened in the peri or intrapartum
period in the brain of term maturity.
66.3.
There was a respiratory
organ failure.
66.4.
There were no blood gas
results of the foetal umbilical acidaemia available.
[67]
Blood gas results are an objective measure of foetal metabolic
condition at the time of delivery. The determination
of the foetal
acid base status helps identify infants at risk for neonatal
encephalopathy. It is also indicative of foetal hypoxic
stress
[13]
[68]
The Paediatricians agreed that the question whether there was a
sentinel (acute) event associated with the
labour was a matter for
the determination of the obstetricians.
[69]
Consequently, t
he
evidence of the paediatricians does not assist in the determination
of the negligence of the defendant’s employees.
WEIGHT
OF EXPERT EVIDENCE
[70]
The
fact agreed in a joint expert minute is a fact of which no evidence
need be tendered at trial. The trial court can and must
accept it as
true.
[14]
It is on this basis
that the Radiologist joint minute was accepted into evidence. Trial
Court is not entitled to have regard to
evidence led at a trial
contrary to an expert agreement.
[15]
[71]
This
approach was approved by the Supreme Court in the unanimous decision
MEC
for Health and Social Development, Gauteng v MM obo OM.
[16]
[72]
Expert
agreements are critical to frame the true issues for determination by
the Trial Court and to provide a logical framework
within the Court
can come to a sound conclusion of facts on which it has no
specialised knowledge.
[17]
[73]
The
role of the Court in evaluating the connection between facts and
expert evidence is articulated in the decision of
MV
Pasquale Dell Gatta
[18]
as follows:
“
The
court must first consider whether the underlying facts relied on by
the witness have been established on a prima facie basis.
If not then
the expert’s opinion is worthless because it is purely
hypothetical, based on facts that cannot be demonstrated
even on a
prima facie basis. It can be disregarded. If the relevant facts are
established on a prima facie basis then the court
must consider
whether the expert’s view is one that can reasonably be held on
the basis of those facts. In other words, it
examines the reasoning
of the expert and determines whether it is logical in the light of
those facts and any others that are undisputed
or cannot be disputed.
If it concludes that the opinion is one that can reasonably be held
on the basis of the facts and the chain
of reasoning of the expert
the threshold will be satisfied. This is so even though that is not
the only opinion that can reasonably
be expressed on the basis of
those facts. However, if the opinion is far-fetched and based on
unproven hypotheses then the onus
is not discharged.”
[74]
Expert evidence must be
based on relevant facts disclosed by admissible evidence. The
defendant led no factual witnesses and relied
solely on the expert
evidence of Drs Wright and Ramsundhar. Both specialist doctors were
sceptical of the ZM’s version in
the absence of collaborating
and supporting medical documentary evidence. ZM’s evidence was
not challenged in any material
respect in cross examination.
[75]
In
the absence of factual evidence on which the defendant’s
experts could base their opinions, I am constrained to accept
the
hypotheses of these experts, particularly given the failure of the
MEC to account for the absence of ZM and SM’s medical
records
in her possession.
[19]
[76]
Once
the plaintiff has given an acceptable explanation for her claim, the
evidentiary burden in a medical negligence matter shifts
to the
defendant. In
Meyers
v MEC, Department of Health, Eastern Cape
,
[20]
Ponan JA for the Court held that:
“
[It]
was sufficient as to place an evidentiary burden upon [the doctor] to
shed some light upon the circumstances attending [the
plaintiff’s]
injury. Failure to do so meant that, on the evidence as it then
stood, he ran the risk of a finding of negligence
against him. For,
whilst [the plaintiff] bore the overall onus in the case, [the
doctor] nonetheless had a duty to adduce evidence
to combat the prima
facie case made by [the plaintiff]. It remained for him to advance an
explanatory (though not necessarily exculpatory)
account that the
injury must have been due to some unpreventable cause, even if the
exact cause be unknown.”
[77]
The defendant led no
evidence to disturb the prima facie case established by plaintiff.
The opinion of the defendant’s expert
witness has no weight
without a foundation of facts.
INTERPRETATION
OF THE MRI SCAN
[78]
The
radiologists agreed in the interpretation of the MRI scan, namely
that the MR study displays a
hypoxic ischaemic
injury of the brain with a central/basal ganglia thalamic pattern
[21]
which most likely occurred in the peri/intrapartum period in the
brain of term maturity.
[79]
A
basal ganglia thalamic pattern is a pattern of injury most often seen
following an acute sentinel event such as a ruptured uterus,
placental abruption, or a prolapsed cord. This Dr Zulu records this
in his report.
[22]
Dr
Andronikus’ report records that the MRI features are indicative
of a profound injury.
[23]
The
medical terms a “sentinel event” and “profound
injury” appear to be used interchangeably in the medical
literature.
[80]
However, Dr Zulu’s
report also records that the basal ganglia thalamic pattern has also
been described (in literature)
with infants who have had no sentinel
event but a prolonged exposure to suboptimal oxygen levels or
hypoxia.
[81]
The
distinction between a sentinel event and a prolonged exposure to
suboptimal oxygen levels is discussed extensively by the Supreme
Court in the decision of
AN
obo EN v The MEC for Health Eastern Cape
.
[24]
[82]
The
court found that an acute profound event, resulted in an injury to
the deep brain structure, that is the “
grey
matter
”
or the core of the brain. An acute profound event was a sudden event,
causing a total and persistent lack of blood supply
(so and oxygen)
to the brain.
[25]
This was to
be compared to partial prolonged hypoxic – ischaemic event
which caused injury to the “
white
matter
”,
the peripheral structure of the brain. Such an injury is caused by an
inadequate supply of oxygen in the placenta. The
brain shunts the
blood to the deep grey matter of the brain (which controls the
essential organs). Shunting causes damage to the
white matter.
[26]
The MRI scan shows that SM’s brain injury is to her
grey
matter
,
not her
white
matter
.
[83]
In
AN obo EN the court records that the experts agreed that the only way
to prevent injury where there is a sudden total interruption
of blood
supply, was an expedited delivery.
[27]
[84]
In this matter the
uncontested facts are that when the defendant’s employees
identified foetal distress, ZM was taken into
theatre immediately for
an emergency caesarean section.
[85]
In
the decision of
AM
obo KM v, The MEC for Health Eastern Cape
,
[28]
the use of the words “
chronic
evolution
”
when qualifying an injury of “
the
acute profound type
”
meant that the acute profound hypoxic ischaemia was not a sentinel
event but rather that the hypoxia and foetal distress
developed
undetected due to a lack of monitoring over some time.
[86]
In this matter, neither of
the radiologists used the terminology “
chronic
evolution
”, nor
was there any evidence of a development of hypoxia and foetal
distress over a period of time. No evidence was led as
to whether the
injury was as a result of an acute event, meaning a sudden event, the
consequences of which could or could not be
avoided as opposed to a
progressive prolonged event, the consequences of which could be
prevented by adequate monitoring.
[87]
Medical
literature no longer draws a sharp distinction between the two MRI
patterns. In the article “
Intrapartum
Basal Ganglia-Thalamic Pattern Injury and Radiologically Termed
"Acute Profound Hypoxic-Ischemic Brain Injury"
Are Not
Synonymous”
[29]
,
The
authors record that even where the duration of the HI injury is
identified there is often uncertainty of the prior foetal health.
Their study shows that “
if
a non-reassuring foetal status develops during labour and is
prolonged, a BGT pattern HI injury may result, in the absence of
a
perinatal sentinel event. Intrapartum BGT pattern injury and
radiologically termed "acute profound HI brain injury"
are
not necessarily synonymous. A visualized magnetic resonance imaging
(MRI) pattern should preferably solely reflect the patterns
description and severity, rather than a causative mechanism of
injury.
[88]
In this study undertaken
by the authors, 60% of the sample were delivered by unassisted
vaginal birth and 40% by delayed caesarean
section.
[89]
The facts in this matter
differ from the study sample. There was no delay in ZM’s
caesarean section. ZM was taken into theatre
immediately, when the
defendant’s medical staff determined that both ZM and the
foetus were “
in
trouble”
.
[90]
Dr
Alheit in a letter to the editor in the SA Journal of Radiology
[30]
states the importance of the correct terminology in interpreting MRI
scans of the brain is to disavow the belief recorded by the
courts in
innumerate decisions that “
very
little could have 'ever' been done to arrest the process of foetal
neurological injury where that injury is reported as 'acute
profound'
on MRI.
”
[91]
The radiologists joint
minute records that a review of the neonatal and obstetric records by
gynaecologists and obstetricians is
appropriate to determine the
underlying clinical factors and the probable timing of the brain
injury. In the absence of these medical
records the obstetricians
expressed their respective opinions.
[92]
Drs Ndjapa and Wright were
at odds as to the timing of the hypoxia. No evidence was led as to
whether there was a sudden total persistent
lack of a blood supply to
the brain, which would be indicative of a sentinel or acute event or
a reduced volume of blood indicative
of a prolonged partial event.
The first would be indicative that there was an emergency situation
causing the injury, the second
that the injury occurred over an
extended period of time. The Road to Health Chart records no sentinel
event.
[93]
The critical factor I have
to determine is not whether there was sudden event or a prolonged
event resulting in the injury, but
rather whether the monitoring and
care provided to ZM by the defendant’s employees was the cause
of SM’s injury. Put
another way, whether the injury would not
have happened had ZM been given adequate and appropriate care by the
defendant’s
employees.
[94]
Both representatives for
the respective parties examined and cross-examined the other’s
witnesses extensively by enquiring
whether there was “
sufficient
”
or “
adequate
”
monitoring and care of the plaintiff or whether the care was
“
substandard”
.
No facts were put to the witnesses or evidence elicited as to why the
care was “
sufficient”
or “
adequate”
or not. Neither representatives elicited any evidence from the expert
witnesses as to what was meant by “
adequate
and/or sufficient
”
monitoring and care in the circumstances of ZM’s labour.
[95]
ZM’s evidence that
she was examined five times vaginally is uncontroverted. The
defendant led no evidence to gainsay ZM’s
evidence that there
was no monitoring of the foetus. It was accepted by all the experts
that this is a basic minimum for all women
in labour. Consequently, I
find that the MEC employees were negligent.
[96]
But did this negligence
cause the injury.
[97]
ZM’s evidence that
she became dizzy and drowsy after the third application of the gel.
While ZM had no recollection being
examined at this time, she
conceded under cross examination that this was possible. She
testified that that had little recollection
of the events after this
until she was woken by one of two medical doctors requesting that she
consent to a caesarean section,
as both she and her baby “were
in trouble
”.
This is indicative that MEC employees took action at a critical
stage, when there were signs of both foetal distress and
potential
harm to ZM health. A decision to perform a caesarean section was
taken and acted on immediately. Dr Ndjapa accepted that
there was
some foetal monitoring for the medical staff to make a decision to
conduct a caesarean section. I accept Dr Ndjapa’s
opinion.
[98]
No evidence was elicited
from Dr Ndjapa in regard to the timing of an appropriate
intervention(s) to avoid the injury. Dr Ndjapa
did not testify how
much earlier in ZM’s labour a caesarean section should have
been considered.
[99]
The absence of medical
records makes it impossible to determine, with any level of accuracy,
whether there were contributing factors
of ZM’s health which
may have exacerbated any distress that SM was under
in
utero.
For the same
reason it difficult to establish precisely what type or level of care
ZM received during her labour and what care was
given to SM
immediately after her birth
[100]
While the Frere Hospital
staff were negligent in failing to provide ZM with adequate care and
monitoring during her labour, there
is no evidence that SM’s
injury was as a result of such negligence. The defendant’s
employees acted with immediate
haste and performed an emergency
caesarean section when they determined the maternal and foetal
distress. This was ZM’s own
evidence.
[101]
In the result I find that
ZM has failed to prove the element of causation necessary to hold the
defendant liable for SM injury.
CONCLUSION
[102]
This brings me to the
question of costs. I am disinclined to grant an order for the costs
to follow the event as is the norm. SM
suffered an extensive injury
at or during her birth. SM is severally disabled, she is unable to
feed herself, attend to her basic
hygiene requirements or dress
herself. She has never been able to fend for herself. ZM is her full-
time carer. Consequently, ZM
has not been able to hold down any form
of employment since SM’s birth 26 years ago. In such
circumstances I am not prepared
to grant a costs order against the
plaintiff in favour of the state.
[103]
The plaintiff’s
claim is dismissed, no order as to costs.
C
J DREYER
ACTING JUDGE OF THE
HIGH COURT
Representation for
plaintiff
Counsel: Adv
Qitsi SC
Adv Nabile
Instructed
by: Njuze
& Associates Inc, East London
Representation for
defendant
Counsel: Adv
Mtshabese SC
Instructed
by: Office
of State Attorney, East London
Matter heard on :
22,
23, 24 August, 2 and
12 September 2022
Judgment handed down on:
9 May 2023
[1]
HIE is a brain injury that prevents an
adequate flow of blood to the term infant’s brain occurring
as
a result of a hypoxic- ischaemic event during the prenatal, inter
partum, or post- partum period. National Institute of Health,
National Library of Medicine;
www.ncbi.nih.gov/pmc/articlesPMC3171747
[2]
PG
obo TG v MEC for Health Gauteng
(2014/6003)
[2021] ZAGPJHC 315 (19 March 2021) @ para [7];
M
obo M v Member of the Executive Council for Health of the Gauteng
Provincial Government
(2014/32504) [2018] ZAGPJHC 77 (20 April 2018) @ para [36] to [42]
[3]
2015
(3) SA 266
(GJ) at para 47
[4]
Joint minutes of the experts:
Radiologists p1; Obstetrician and Gynaecologists pp 2-5;
Paediatricians: pp 6-11
[5]
[2016]
ZAKZPHC 27 at para [10] – [12]
[6]
61
of 2003
[7]
Established in terms of the
Health Professions 56 of 1974
[8]
Clause 9 of the 2016 Guidelines
[9]
Supra
at para 20; quoted with approval in
PG
obo TG v MEC for Health Gauteng
]
Province
supra
@ para [10]
[10]
Pleadings Bundle: Pre-trial Meetings on: 16 October 2019 @ pp 75-70
(p76); 3 May 2022 @ pp 93-99 (pp 95-99).
[11]
The intrapartum period occurs at the onset of
labour until the placenta is pushed out.
[12]
MRI
Changes in the Thalamus and Basal Ganglia of Full-Term
by
Ken
Imai
,
Linda
S. de Vries
,
Thomas
Alderliesten
,
Nienke
Wagenaar
,
Niek
E. van der Aa
,
Maarten
H. Lequin
,
Manon
J.N.L. Benders
,
Ingrid
C. van Haastert
,
;
Floris
Groenendaal
,
National Institute of Health Journal 2018 Sep; 114(3): 253–260.
Published online 2018 Jun 29. doi:
10.1159/000489159
[13]
“
Use
of
umbilical cord blood gas analysis in the assessment of the new-born
”
L Armstrong * BJ Stevenson; National Library of Medicine
www.ncbi.nim.nih.gov/pmc/articles/PMC2675384
[14]
See
Bee
v The Road Accident Fund
2018 (4) SA 366
(SCA) at paras 64 – 66 and
Thomas
v BD Sarens (Pty) Ltd
[2012] ZAGPJHC 161 at para 9, applied by the Gauteng Full Bench in
an unreported case of
M
obo LA Child MEC for Health Gauteng Provincial Government
A5015/2020, delivered on 8 October 2021
[15]
MEC
for Health, Eastern Cape v DL obo AL
[2021] ZASCA 68
at para 24
[16]
[2021] ZASCA 128.
[17]
M
obo L Child
supra
at para 35
[18]
2012
(1) SA 58
(SCA) at para 26
[19]
Khoza
v MEC Health & Social Development, Gauteng supra; Madida obo M v
MEC Heath Kwa -Zulu Natal supra
[20]
2020
(3) SA 377
(SCA) at para 21
[21]
Basal
ganglia and thalamus are paired deep grey matter structures in the
brain
[22]
Plaintiff’s trial Bundle: p115
[23]
Plaintiff Notices Bundle: p84.
[24]
[2019]
4 All SA 1
(SCA) at paras [9] – [18]
[25]
Supra @ para [13]
[26]
Supra
@
para
[14
[
[27]
Supra
@
para
[19]
[28]
[2018]
ZASCA 141
[29]
Johan
Smith
,
Regan
Solomons
,
Lindi
Vollmer
,
Eduard
J Langenegger
,
Jan
W Lotz
,
Savvas
Andronikou
,
John
Anthony
,
Ronald
van Toorn
National
Library of Medicine
www.pubmed.ncbi.nlm.nih.gov/33321532
[30]
S. Afr. Journal of Radiology. (Online) vol.25 n.1 Johannesburg
2021;
On-line version
ISSN
2078-6778
“
Addressing
radiological terminology of basal ganglia and thalamic injury in
hypoxic ischaemic injury”.