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[2022] ZAECBHC 16
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N.J. obo I.J. v Member of the Executive Council for Health: Eastern Cape Province (239/19) [2022] ZAECBHC 16 (24 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BISHO)
CASE
NO: 239/19
In
the matter between: -
N.J.
obo I.J.
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH: EASTERN CAPE
PROVINCE
Defendant
JUDGMENT
MATEBESE
AJ
[1]
On 11 September 2009 NJ, the plaintiff, who was 26 years old at the
time and pregnant
with IJ reported at Baziya Clinic and was later
transferred and admitted at Mthatha General Hospital for the purposes
of giving
birth to IJ. The following morning on 12 September 2009 and
at approximately 6h35 IJ (“the baby”) was born with a
birth
weight of 3200g. The baby was delivered through normal vaginal
delivery.
[2]
The neonatal examination revealed a new born that was pink, afebrile,
heart rate of
120bpm (normal), chest that was clear, a normal
cardiovascular examination, female genitalia, reflexes: some flexion,
moro and
sucking reflex present and the assessment at the time was
that of low Apgar scores and meconium aspiration. Close monitoring
was
recommended.
[3]
The records of the 12
th
of September 2009 reflect that the
baby was received by the Nelson Mandela Academic Hospital from
Mthatha General Hospital with
a problem of low Apgar scores and fits.
The Apgar scores were recorded as 5/10 and 7/10.
[4]
An examination at Nelson Mandela Academic Hospital revealed that the
baby had suffered
a Hypoxic Ischemic Encephalopathy (HIE) grade II.
Dormicum (an antiepileptic sedative) was administered in order to
abort seizures.
[5]
A neonatal observation dated 13 September 2009 noted the following:
5.1.
Hypoxic Ischemic Encephalopathy Grade II;
5.2.
An attack of fits with cycling movements at 14h00.
[6]
On 14 September 2009 a central nervous system examination was done
which revealed
a lethargy (a pathological state of sleepiness or deep
unresponsiveness and inactivity) and hypotonia (a state of low muscle
tone).
[7]
On 15 September 2009 it is recorded that no further seizures were
noted since the
13
th
of September 2009. However, lethargy
and hypotonia was still evident and HIE score had improved to 7 with
no sodium levels in the
blood being reported.
[8]
On 16 September 2009 HIE Grade II was still reported with no fits or
seizures noted
on the day. On 17 September 2009, the evaluation once
more recorded HIE Garde II and hyponatremia with the examination of
the respiratory
and cardiovascular systems within normal limits. The
baby was reported as still lethargic and dull with weak response to
stimulation
and the HIE score had improved to 6.
[9]
On 18 September 2009 no further attacks were reported, the baby was
still noted as
dull and floppy and on interpretation she looked very
ill.
[10]
An MRI brain review done on the 3
rd
August 2018 (8 years
11 months after the birth of the baby) revealed that
“
the predominant
pattern is that of T2 and FLAIR Hyperintensities in the Peri-Rolandic
Cortex and Ventro-lateral aspects of the Thalami.
In the appropriate
clinical history setting, the pattern and location of injury may be
suggestive of an old Hypoxic Ischemic injury
in its chronic state of
evolution, in a term infant exposed to acute profound Asphyxia. The
Thalami may be affected by various
other conditions such as
infection, systemic or metabolic disease, neuro-degeneration, and
vascular conditions, correlation with
the clinical history,
biochemistry, neonatal and obstetric records is strongly advised to
confirm the most probably cause and the
timing of the injury”.
[1]
The
pleaded case
[11]
On 23 April 2019 the plaintiff instituted action proceedings against
the defendant claiming damages
in the total amount of R31 500 000.00
both in her personal as well as her representative capacity as the
mother and the
natural guardian of the minor child.
[12]
In her particulars of claim the plaintiff alleged that the employees
of the defendant including
the medical practitioners or doctors and
nurses who treated the plaintiff at the clinic in Baziya were
negligent in that:
12.1.
They failed to properly or sufficiently regularly monitor the
plaintiff or the condition of her foetus;
12.2.
They failed to comply in respect of the monitoring and management
of
the plaintiff’s labour with appropriate guidelines for
maternity care;
12.3.
They failed to monitor the plaintiff or her foetus with sufficient
care and skill so as to enable the detection timeously of the onset
of foetal distress and/or Hypoxia;
12.4.
They failed to detect the onset of foetal distress and/or foetal
Hypoxia;
12.5.
They failed, following the onset of foetal distress and/or foetal
Hypoxia, to institute appropriate treatment modalities in respect of
the condition or to effect an immediate and timeous caesarean
section;
12.6.
They failed to prevent the development of Hypoxia and Hypoxic
Ischemic Encephalopathy;
12.7.
They failed to prevent the occurrence of the injury (the HIE) while
the plaintiff and her foetus were under the monitoring and care of
the department’s employees at the clinic from 09h00 until
22h00
on 11 September 2009;
12.8.
They failed to descend or detect either timeously or at all, as
they
could and should have done, that the plaintiff was candidate for
caesarean section; and
12.9.
They failed to expedite the transferral of the plaintiff to the
hospital when the foetus developed Hypoxia and/or foetal distress.
[13]
The plaintiff further alleged in her particulars of claim that the
hospital, doctors and nurses
who treated the plaintiff were negligent
in that:
13.1.
They failed to properly treat and manage the foetal condition of
Hypoxia and/or
foetal distress;
13.2.
They failed to immediately or timeously deliver the plaintiff’s
child, by
way of caesarean section if necessary, when they knew or
ought to have known that time was of the essence and that the child
was
severely at risk by reason of Hypoxia and/or foetal distress;
13.3.
They failed, following the onset of foetal distress and/or foetal
Hypoxia, to institute
appropriate treatment modalities in respect of
this condition and to effect an immediate or timeous caesarean
section;
13.4.
They failed to deliver the baby timeously, caesarean section if
necessary, when
it became medically advisable and appropriate to do
so;
13.5.
They failed to prevent the development of Hypoxia and Hypoxic
Ischemia Encephalopathy;
13.6.
They failed to prevent the occurrence of the HIE while the plaintiff
and her foetus
were under the monitoring and care of the department’s
employees at the hospital from approximately 22h00 until
approximately
6h35 when the plaintiff was delivered on 12 September
2009.
[14]
The plaintiff further alleges that the medical practitioners and
nursing staff both at the clinic
and hospital acted in breach of
their duty of care and were negligent in the treatment of the
plaintiff and the minor child. They,
it is so alleged, treated the
plaintiff and the minor child in a sub-standard manner and were
negligent in one or more of the following
respects:
14.1.
They failed to properly assess and diagnose the condition of the
plaintiff and her unborn child upon admission and failed to implement
proper treatment modalities in respect of the plaintiff and
her
unborn child;
14.2.
They failed to properly monitor the plaintiff and her unborn child
and failed to detect the onset of Hypoxia;
14.3.
They failed to subject the plaintiff to a CTG machine in
circumstances
where they could or should have done so;
14.4.
They failed to take all necessary and reasonable steps to expedite
the delivery of the plaintiff’s child through caesarean section
in circumstances where they could or should have done so;
14.5.
They failed to take all reasonable and necessary steps to ensure
the
transfer of the plaintiff to a higher level medical facility for the
urgent delivery of the plaintiff’s unborn child;
14.6.
They failed to provide the plaintiff and her unborn child with
medical care and attention and monitoring of reasonable standards
when they could and should have done so;
14.7.
They failed to prevent foetal distress in circumstances where they
could and should have taken steps which would have adequately
controlled the said condition;
14.8.
They failed to take any adequate steps to prevent the developing
of
Intrapartum Asphyxia in consequence of prolonged labour, in
circumstances where they could and should have diagnosed this
condition
and taken appropriate remedial action in respect thereof;
14.9.
They failed to monitor the foetal heart rate either properly or
at
all and failed to detect the onset of foetal distress;
14.10.
They either failed to diagnose prolonged labour and complications
associated
therewith when they could and should have done so;
14.11.
They failed to provide any adequate treatment in respect of foetal
distress
following upon prolonged labour when they could and should
have done so;
14.12.
The failed to monitor the minor child immediately after birth in
circumstances
where they could and should have done so;
14.13.
They failed to give regard to the minor child’s clinical state
including
inability to feed and neurological state when they could
and should have done so;
14.14.
They failed to provide early intervention with supportive care and
possible
therapeutic Hypothermia to improve the minor child’s
neurological outcome;
14.15.
They failed to immediately transfer the minor to high level hospital
immediately
after noticing that that she did not cry during birth,
was floppy and had seizures when they could have done so;
14.16.
They failed to take any/or any adequate steps to prevent the
developing of
seizures when they could or should have done so.
[15]
In his plea the defendant admits that plaintiff and the minor were
treated at the clinic and
at the hospital and the duty of care
towards the plaintiff and the minor child but denies that his
employees both at the clinic
and at the hospital acted in breach of
the duty of care and were negligent as alleged by the plaintiff or at
all. The defendant’s
case is that the nursing staff and doctors
both at the clinic and hospital treated the plaintiff and the minor
child in accordance
with the required and acceptable standards.
The
unavailability of the records and the effect thereof.
[16]
In this matter there were no prenatal and obstetric records. In
particular, there were no records
of when the plaintiff started to
experience contractions, when she arrived at Baziya clinic, when was
she transferred from Baziya
clinic to Mthatha General Hospital, when
she arrived at Mthatha General Hospital, what time she arrived at
Mthatha General Hospital,
when was she first attended to by the
nurses and the doctors at the Mthatha General Hospital and the type
of attention that was
given including monitoring intervals, if any.
The first record that is available relates to the time of the birth
of the minor
child and the condition at birth and also the diagnosis
and treatment given at the Nelson Mandela Academic Hospital upon
transfer
of the minor child from Mthatha General Hospital to the
Nelson Mandela Academic Hospital.
[17]
The expert witnesses who filed reports compiled same on the basis of
the limited information
on the records and the facts obtained from
the plaintiff.
[18]
Both parties were, in my view, equally handicapped by the
unavailability of the medical records.
The plaintiff had to rely on
her memory in relation to the events of the 11
th
of
September 2009, which was more than 12 years to date of the hearing
of the matter. The defendant on the other hand, as expected
in
circumstances where there are no records, obviously found it
difficult to identify even the witnesses that were involved in
the
diagnosis, admission, monitoring and treatment of the plaintiff.
[19]
The plaintiff argued that the fact that the documents are not
available must not be used or cannot
be used to prejudice plaintiff
and that the court must draw an adverse inference against the
defendant in this regard.
[20]
I am unable to agree with the plaintiff in this regard. There is no
evidence that the defendant
had a hand in the disappearance of the
records. The defendant is, as I have stated hereinabove, in the same
position as the plaintiff
regarding the issue of the unavailability
of the records and the impact thereof. That the employees of the
defendant may have been
negligent in keeping the records, a finding I
do not make herein, is, in my view, a side issue to the negligence
that needs to
be established in this case for the defendant to be
held liable.
[21]
Accordingly, and in my view, the absence of the records is a neutral
factor in this case. It
cannot be used in favour of any of the
parties. Neither can it be used against any of the parties and,
accordingly, no adverse
inference can be drawn against any of the
parties, at least on the facts of this case.
[22]
Having said that I turn to deal with the evidence led during the
trial.
The
evidence:
[23]
During the trial the plaintiff testified and called the evidence of
two (2) expert witnesses,
Professor Ronald van Toorn and Dr Ashraff
Sheik Ebrahim.
[24]
The defendant on the other hand called the evidence of Dr Amith
Keshave and Dr Vuyelwa Baba.
[25]
The plaintiff testified that IJ is her third child. The first one was
born by caesarean section
and the second one was born by a normal
vaginal delivery. She testified that she attended ante natal clinic
at Baziya clinic in
Mthatha from the fifth month of her pregnancy.
There were no reported problems save for a minor discharge that was
successfully
treated.
[26]
On 11 September 2009 she started experiencing labour pains around
18H00, went to the clinic and
she arrived at the clinic at 19h00. She
stated that on her arrival at the clinic she was examined by means of
a certain instrument
that was used to hear the baby’s heartbeat
and a finger was put by the nurse on her and she was told that she
was not yet
ready to deliver.
[27]
She stated that she was advised at the clinic that it would not be
proper for her to deliver
at the clinic since she had previously had
a caesarean section. This in reference to her first child who was
delivered by caesarean
section in 2003. She was then referred to
Mthatha General Hospital.
[28]
She was transported to Mthatha General Hospital by means of an
ambulance and arrived at the hospital,
according to her, at 22h00.
She was examined at the hospital through an instrument that is used
to listen to the baby’s heart
rate and they also examined her
vaginally and told her that she was still far from delivering. At
this time she could still feel
the contractions and they were,
according to her, strong and painful. She stated that she was not
examined through a CTG but an
instrument was put on her stomach and
the nurses listened through their ears.
[29]
She stated that nothing was done on her from 22h00 until 00h00 i.e.
midnight when a nurse came
and examined her with a finger after which
the nurse told her that she was about to deliver. She testified that
she was instructed
by the nurse to push and nothing happened.
[30]
She testified that at Mthatha General Hospital there was no
examination of the baby’s heart
rate except for the first one
that occurred at 22h00 until she delivered at 6h30.
[31]
She testified that after delivery the baby was taken from her and it
was only on the second day
that she was advised of the child’s
whereabouts. She was told that the child was at Nelson Mandela
Academic Hospital and
she was taken to the Nelson Mandela Academic
Hospital where the child was admitted at ICU.
[32]
When she was asked if there were any instruments put on the child she
answered in the affirmative
and stated that there were some tubes
that were attached to the child. When asked if she was bleeding after
the delivery she stated
that it was just a normal bleed from the
vagina as she had given birth.
[33]
When she was confronted with the version of Dr Baba in relation to
the examination or the assessments
at 19h00, 21h00 and 23h00 she
denied having told Dr Baba that she had been examined during those
periods at the hospital.
[34]
She testified that the child is currently unable to eat on her own,
she needs to be assisted
and the child cannot do anything for
herself, she needs permanent assistance.
[35]
Under cross-examination she confirmed that she left home around 18h00
on the 11
th
of September 2009 and arrived at the clinic at
19h00. She also confirmed that she arrived at the hospital around
22h00. She admitted
having spoken to Dr Baba virtually or through a
virtual platform. She denied however having told Dr Baba that she
left home at
16h00 and arrived at the clinic at about 18h00. She also
denied that she had arrived at the hospital at 19h00. She also denied
having told Dr Ebrahim that she arrived at the hospital at 19h00 she
said that she did not know where Dr Ebrahim and Dr Baba got
the
information that she arrived at the hospital at 19h00.
[36]
She further denied that she had told Dr Ebrahim that she delivered
just after 00h00 and stated
that Dr Ebrahim must be making a mistake
in this regard. She also denied that she told Dr Baba that she
delivered after 00h00 and
stated that she does not know where they
would have got the information that she delivered after midnight.
[37]
She stated that after the child was born she never saw the child and
never saw anything that
was done to the child because the child was
immediately taken away from her.
[39]
When she was confronted with the version of Dr Ebrahim, in his report
where the latter stated
that she advised him that she saw a nurse
doing something to the child’s mouth she denied having told Dr
Ebrahim so and stated
that she does not know where Dr Ebrahim got
this information about the nurse doing something to the child’s
mouth. She further
denied having told Dr Baba that she was examined
by a doctor on arrival at the hospital and stated that she only told
Dr Baba that
on arrival at hospital she found three (3) female nurses
and there was no doctor and she did not know where Dr Baba got the
information.
[39]
She denied what is contained in the doctor’s report that she
was examined at 23h00 and
immediately thereafter she gave birth at
around 00h00 and insisted that she gave birth in the early hours of
the morning at 6h30
on the 12
th
of September 2009.
[40]
The next witness called by the plaintiff was Professor Ronald van
Toorn. He is a paediatrician
and a neurologist specialising in foetal
brain and child brain from 1 up to 18 years. He testified that he
examined the minor child
and that his area of expertise does not
include the management of labour and starts only after the child is
born. As to the adequacy
of the management of the labour he deferred
to the obstetricians.
[41]
Professor van Toorn testified that his opinion as paediatric
neurologist was requested regarding
the cause and timing of the minor
child’s brain injury. He testified that in his opinion nothing
pointed to the HIE having
occurred antenatal because he could not
find any reason for concern with the mother. In particular, he
testified that the mother
had no chronic illnesses, she was generally
healthy, no infection, was 26 years and previous births that the
plaintiff had were
generally well.
[42]
He also excluded the possibility of the injury having occurred
postnatal period. He testified
that any postnatal injury would have
been indicated by a jaundice, meningitis or any infection recorded by
the Nelson Mandela Academic
Hospital. He testified that there was no
such recording from the records from Nelson Mandela Academic
Hospital.
[43]
He testified that he agrees with the MRI analysis and the findings of
the radiologists in their
joint minutes to the effect that the minor
child suffered an acute profound injury. He, however, testified that
in the case of
the minor child there was no recorded sentinel event
and according to him the injury might have been caused by a series of
events
over a prolonged period of time. He testified that if there
was a sentinel event it would have been recorded in the neonatal
record
and according to him there is no indication of such a sentinel
event from the Nelson Mandela Academic Hospital’s records.
He
stated that the type of injury to the child is a partial prolonged
type of injury. This is however inconsistent with the joint
minutes
of the radiologists. It is also inconsistent with the conclusions in
his report where he stated:
“
I concur with
the radiology opinion that she suffered brain injury as a result of
acute Hypoxic Ischemic brain injury.”
[44]
In his report he concluded “
the depression at birth (poor 1
minute Apgar score), the normal birth weight and head circumference
at birth, the moderate neonatal
Encephalopathy, the prolonged period
of hospitalisation (8 days), the type of cerebral palsy and MRI
changes are all supportive
of an Intrapartum Hypoxic Ischemic
insult.”
[45]
In short, his opinion is that the injury to the minor child occurred
intrapartum. He stated that
it is of vital importance to obtain the
maternity case records to ascertain if there were any risk factors of
brain injury during
the intrapartum period.
[46]
He accepted under cross-examination that there is no recording of any
foetal distress as there
are no maternity case records in the matter.
He, however, stated that one can deduct from the condition of the
baby like the low
Apgar scores and the seizures that there was indeed
foetal distress. He conceded that there was nothing on record to
suggest that
the baby was resuscitated after birth but also stated
that if one looks at the features displayed by the baby at birth one
would
have expected that the baby would have been resuscitated or the
baby ought to have been stimulated at birth.
[47]
He conceded that an acute profound type of injury is an injury that
happens suddenly but insisted
that in the case of the minor child
there was no recorded sentinel event and therefore, according to him,
the nature of the injury
was not an acute profound type of injury but
an injury that could have happened over a long period of time. He,
however, conceded
that this was not his field of expertise but that
of the radiologist to opine on.
[48]
He stated that he cannot time the injury because of the absence of
the maternity case records
but agreed that it is unlikely that the
child would have survived if the injury had occurred for more than
two (2) hours. He testified
that where a baby has suffered an acute
profound type of injury such a baby will be stillborn within an hour
from the onset of
such injury.
[49]
The next witness to be called by the plaintiff was Dr Ashraff Ebrahim
a Specialist Obstetrician
and Gynaecologist in private practice at
Netcare St Augustine Hospital in Durban. He stated that the
plaintiff’s maternity
case records were untraceable and
therefore he had to rely on,
inter alia,
a consultation with
the plaintiff which he held on the 13
th
of August 2018 and
on the neonatal records, the discharge summary from the Nelson
Mandela Academic Hospital and the clinical records
of the minor child
from infancy until 2013 and the MRI brain scan that was done on 3
August 2018 which was reported on by Dr Murray
Haynes, a Specialist
Radiologist.
[50]
He testified that according to the information obtained from the
plaintiff the plaintiff started
having labour like pains at about
15h00 on 11 September 2009 and she then proceeded to the clinic and
was admitted at the clinic
at about 16h00. She was checked by the
nurse and a foetal heart rate as well as a vaginal examination was
done after which she
was told by the nurse that she was still far and
she was informed that she was going to be transferred to hospital
because of her
previous caesarean section.
[51]
He testified that he was informed by the plaintiff that the plaintiff
arrived at the hospital
at 19h00 and was promptly seen by a nurse who
listened to the foetal heart rate and did a vaginal examination and
also told her
that she was still far and directed her to lie on a
bed. He was also told by the plaintiff that at about 22h00 the
plaintiff called
out for a nurse but there was no nurse in ward as
they were in a separate area watching TV and that a nurse ultimately
came at
about 23h00 and repeated the vaginal examination after which
she was told she was still far. According to him, the plaintiff
advised
that no foetal heart rate nor CTG was done.
[52]
He testified that according to the plaintiff by 23h00 her pains were
unbearable, and she could
feel pressure in the low pelvic area. She
then called out for a nurse and the nurse arrived immediately and did
a vaginal examination
and listened to the foetal heart rate after
which the nurse advised her that she was ready to give birth.
According to the plaintiff,
so the evidence went, she had a strong
urge to bear down just before midnight and by this time another nurse
arrived. She then
pushed for about 10 minutes in the dorsal position
and delivered the baby with the assistance of the nurses and she was
not sure
of the time. She was not shown the baby at birth because the
baby was taken away immediately but she did not hear the baby cry at
birth and from her bed she could see the nurse doing something around
the baby’s mouth.
[53]
He testified that labour occurs over three (3) stages. The first
stage being the latent stage
which is considered the safe stage of
labour and it takes approximately eight (8) hours. He testified that
during this stage there
are no strong contractions and according to
the guidelines the foetal heart rate can be checked once every two
(2) hours. This
stage may be from 1 centimetre to 4 centimetres
dilatation. The second stage the active phase of labour is from 4
centimetres dilatation
to 10 centimetres dilatation and according to
the guidelines the foetal heart rate during this stage must be
checked once every
half an hour due to the strong contractions. It is
during this stage that the nurses and the doctors at the maternity
ward must
carefully monitor the decelerations because these become
warning signs that if the situation continues the baby may be
hypoxic.
The last stage is the delivery or the birth stage of the
child.
[54]
He testified that according to the plaintiff she started bearing down
or reaching the second
stage of labour from about 23h00. He stated
that from the low Apgar scores it is clear that the minor child had
HIE which is an
injury suffered as a result of lack of oxygen or
blood to the brain. He opined that the low Apgar scores are a strong
indication
that the minor child suffered Hypoxia just before birth.
[55]
He testified that the injury pattern on the minor child is an acute
profound type of injury but
because there is no recorded sentinel
event the injury in his view occurred over a period of time. He
testified that the cause
of the injury to the child is foetal
distress which does not occur silently. He testified that there are
factors that point one
to the condition and that when a foetus
suffers distress the injury takes a while to occur unless there is a
sentinel event. It
takes anything between ninety (90) minutes to four
(4) hours for the damage to occur.
[56]
He testified that in his view if properly monitored the situation
could have been prevented and
that the lack of proper monitoring and
the failure to spot the warning signs on the part of the defendant
constituted negligence.
[57]
Under cross-examination he conceded that the pleaded version of the
plaintiff in the particulars
of claim is not similar to what the
plaintiff told him, in particular in relation to her time of arrival
at the hospital. In the
particulars of claim the plaintiff alleged
that she arrived at the hospital at 22h00 when in fact to Dr Ebrahim
she said that she
arrived at the hospital at 19h00.
[58]
He also conceded that the version given by the plaintiff to Dr Baba
is similar to the version
that the plaintiff gave to him during his
consultation with the plaintiff and that the plaintiff told him that
she delivered around
midnight which was the same story the plaintiff
told Dr Baba.
[59]
He stated that he only saw it in the medical records that the baby
was born at 6h35 on the 12
th
of September 2009. In fact,
he said that he was not aware that the baby was born at 6h35 and
never asked the plaintiff about the
period between midnight and 6h35.
[60]
He testified under cross-examination that if regard is had to the
version that the plaintiff
gave to him and if one works backwards the
plaintiff was probably about 4 to 5 centimetres dilated when she
arrived at the hospital.
[61]
He also stated that if 6h35 is the correct time for the birth of the
child that means the plaintiff
was at the latent phase of labour when
she was transferred to the hospital. He stated that if the child was
delivered at 00h00
and the plaintiff had arrived at 22h00 that would
mean that the plaintiff was already at the active phase of labour
when she arrived
at the hospital.
[62]
That the plaintiff was in the active phase of labor when she arrived
at the hospital cannot be
correct. This is because the objective
evidence shows that the plaintiff delivered at 6h35 on the 12
th
of September 2009 and not at midnight as the plaintiff had stated to
him.
[63]
He stated that he does not know when the contractions started but
only relied on the version
given to him by the plaintiff to the
effect that she started having pains at around 15h00 or that the
contractions started at around
15h00.
[64]
This is also inconsistent with what is stated by the plaintiff in her
evidence where she says
that she started having contractions or pains
at around 18h00 and she arrived at the clinic at 19h00.
[65]
He disagreed with Dr Baba to the effect that the two (2) hourly
monitoring of the plaintiff during
the period between 22h00 and
midnight on the 11
th
of September 2009 was proper and in
accordance with the guidelines. He stated that the foetal heart rate
had to be monitored every
half an hour and therefore two (2) hourly
monitoring between 19h00 and 23h00 was insufficient according to him.
[66]
He also confirmed under cross-examination that when preparing his
report he relied on the report
of Dr Hayes a Radiologist and not
Professor Loots who has filed a joint minute in the matter. He
testified that he never saw the
report of Professor Loots and never
considered same for purposes of his report. That concluded the
plaintiff’s case.
[67]
Dr Keshave who is a Specialist paediatric neurologist specialising in
child neurology testified
on behalf of the defendant.
[68]
He testified that he consulted with the mother of the minor child and
also he examined the minor
child. He found the child to be suffering
from CP. He testified that in trying to determine the probable cause
of the CP one had
to look at the baby’s head size compared it
to the length and the weight of the baby. Unfortunately, with the
minor child
there was no recorded length and it was only the weight
and the head size that were recorded. The head’s size was above
97
percentile which was, according to him, above average.
[69]
He testified that under normal circumstances, and considering the
head size, the normal birth
weight of the child ought to have been
3.8kg but in the present case the weight was 3.2kg. He testified that
there was a possibility
of Intra-Uterine Growth Restriction (IUGR) in
this case.
[70]
He opined that due to the IUGR the baby had no reserves to go through
a birth process and this
was according to him the probable cause of
the injury suffered by the baby.
[71]
He testified that there was no evidence on record of any HIE between
6h35 and 7h35 and that the
diagnosis of HIE was only done at 10h15
and there is no explanation for such a delay.
[72]
He further testified that the seizures were only noted on the minor
child at 11h30 according
to the records.
[73]
He, however, conceded that there is hypoxic injury which occurred
intrapartum but contends that
the hypoxic injury could have occurred
during the birth process and as a result of the IUGR.
[74]
Even under cross-examination he still confirmed that the injury was
HIE but stated that it was
difficult to point out when exactly the
injury occurred.
[75]
Under cross-examination he testified that the pattern of injuries
shown by the MRI is the type
of injury that would have occurred
within 10 to 15 minutes otherwise if it persisted beyond that the
child would have died.
[76]
It was put to him during cross examination that in the joint minute
he suggested a Whole Exam
Sequencing (WES) which involves the looking
at the genes and the metabolic screen of the child so as to exclude
other factors that
may have caused the CP and that the WES came out
negative which he confirmed. It was then put to him that when all the
other factors
that may have led to the CP came out negative, he then
resorted to IUGR to which he responded by simply saying that the
child had
a predisposing condition in the form of a head
circumferences that was above 90 in size and a birth weight that was
nearly 25.
[77]
It was further put to him that on probability there would be warning
signs of any HIE and those
warning signs would have been picked up
through proper monitoring. He responded by saying that he would
rather defer that to Obstetricians
but where the child had IUGR the
probability is that the injury would have occurred in the last
minutes of the delivery.
[78]
The next witness called by the defendant was Dr Vuyelwa Baba an
Obstetrician and Gynaecologist
employed at Chris Hani Baragwanath
Academic Hospital.
[79]
She testified that she interviewed the plaintiff on 11 December 2020
via zoom and during the
interviews the plaintiff was with her
daughter IJ born on 12 September 2009.
[80]
She testified that according to the plaintiff her lower abdominal
pains started around 15h00
on the 11
th
of September 2009
whilst she was at home and she went to her local clinic around 16h00
and arrived at the clinic around 18h00.
She testified that the
plaintiff advised that her membranes ruptured at the local clinic and
she was then transferred to hospital
because she had a previous
caesarean section and she arrived at the hospital around 19h00 on the
same day.
[81]
She was told by the plaintiff that on arrival at the hospital at
19h00 she was assessed and seen
by a doctor and was told that the
foetal heart rate was fine and that she was still far from
delivering. The plaintiff further
advised her that she recalls
calling for assistance around 21h00 and a nurse came to assist her
and she was told that the foetal
heart was fine and she was not about
to deliver.
[82]
At 23h00 the plaintiff, according to her, called again for help and a
different nurse came to
review and asked her to push the baby as she
was ready to deliver and that the baby was born shortly after
midnight.
[83]
She was told that at birth the baby did not cry and was taken to ICU.
[84]
She confirmed that there were no medical records and therefore she
relied solely on the information
that she received orally from the
plaintiff for her report.
[85]
She testified that the weight of the baby at birth was 3200g
according to the neonatal records
and the Apgar score at birth was
5/10 which was low and would have required resuscitation.
[86]
In her report she concluded that the clinical management carried out
by the staff at the local
clinic was appropriate up to the transfer
to the hospital. She also concluded that the labour in the hospital
according to what
the patient said also seemed adequate and following
national protocols. She however noted some discrepancy concerning the
delivery
time as the plaintiff said she delivered around midnight
whereas the neonatal records reflect that she delivered at 6h30.
[87]
She testified that during the latent phase of labour the guidelines
prescribe that the foetal
heart rate must be monitored every two (2)
hours and that during the active phase of labour they prescribe that
monitoring must
occur every thirty (30) minutes and before, during
and after every contraction.
[88]
She confirmed that she had sight of the joint minutes of the
radiologists Professor Lotz and
Zikalala and that their joint
minutes, as obstetricians, refer to Haynes and Zikalala not Lotz.
[89]
Under cross-examination she agreed that the absence of maternity
records is a huge problem for
the case. She stated that as far as she
is aware the guidelines say hospital records must be kept for a
minimum of ten (10) years.
[90]
She stated that during her consultation with the plaintiff she tried
to find out from the plaintiff
in IsiXhosa whether a CTG was done and
the plaintiff was not able to assist her and she is accordingly not
in a position to comment
whether a CTG was done or not. She, however,
testified that the plaintiff advised her or spoke about a “
horn
”
that was used to look at the baby’s heart. This, according to
Dr Baba, the plaintiff said in IsiXhosa.
[91]
She confirmed under cross-examination that the plaintiff advised that
the foetal heart was checked
but the plaintiff did not specify how
the foetal heart was checked at 21h00. She confirmed that the Apgar
scores at 1 minute were
5/10, at 5 minutes they were 5/10 and then at
10 minutes they improved to 7/10 and that the child was taken quickly
to ICU and
transferred to Nelson Mandela Academic Hospital where the
child was diagnosed with HIE. She accepted under cross-examination
that
there was no recorded sentinel event in respect of the minor
child. However, she could not agree that the fact that it was not
recorded means that it did not exist. She stated that the sentinel
event may not have been communicated though it existed and so
with
the unavailability of the maternity case records one cannot tell
whether there was a sentinel event noted at birth which was
not
communicated to Nelson Mandela Academic Hospital or not.
[92]
She conceded that in this case a CTG should have been preferred
because of the history of birth
by a caesarean section.
[93]
She conceded during cross-examination that the plaintiff was labelled
a high risk because of
the caesarean section scar and that was the
reason why the plaintiff was referred to hospital. She stated that
according to the
guidelines two (2) hourly monitoring for the mother
was sufficient during the latent phase of labour and during the
active phase
of labour half hourly monitoring is prescribed.
[94]
Just like Dr Ebrahim she was never furnished with any information
regarding the monitoring of
the plaintiff from midnight until the
birth of the child at 6h35 in the morning.
The
radiologists joint minutes:
[95]
The parties submitted the joint minutes of Professor JW Lotz and Dr Z
Zikalala, the radiologists.
The radiologists were not called to
testify during the trial. Their joint minutes starts with the
following:
“
We jointly
believe that the value of Radiologist’s opinion lies in the
diagnosis and characterisation of brain injury as evident
on
diagnostic imaging (MRI), and that the issues of causality and
appropriateness of clinical management are best addressed by
the
relevant clinical experts.”
[96]
They then conclude as follows:
“
4.
Our conclusions on the MRI that we were tasked to review can be
summarised as follows:
(i)
This evidence of previous Hypoxic Ischemic injury in the
child’s brain;
(ii)
The MRI study defines structural damage to the Peri-Rolandic
Cortex and the Basal Ganglia, Thalamic Complex (BGT), constituting a
cerebrocortical – deep nuclear pattern in the appropriate
clinical context of a sentinel event, the pattern may be referred
to
as an acute profound Hypoxic Ischemic Injury.
In the absence of a
clear defined sentinel event, the same pattern may occur due to
alternative pathways of serial events over prolonged
period of time.
In this context, we
attach the most recent communication endorsed by the new born brain
society guidelines and publications committee,
and defer to clinical
and obstetric experts to evaluate the described pattern against the
available clinical and obstetrical records.
(iii)
The experts agree that there are no findings or structural or
congenital malformation of the brain.
(iv)
The experts agree that there are no signs of an inborn error
of metabolism.
(v)
The experts agree that the imaging features do not support a
congenital infection with deleterious effects on the central nervous
system, such as Toxoplasmosis, Rubella, Cytomegalovirus, or Herpes.
(vi)
The experts agree that a review of the clinical and
obstetrical records by appropriate specialists in the field of
neonatology and
obstetrics to be essential in determining the cause
and probable timing of the hypoxic ischemic injury.”
[97]
In his report Professor Lotz describes an acute profound or severe
event as events that occurs
suddenly and progress rapidly in term
neonates resulting in a primarily central pattern of injury involving
the deep grey matter.
He describes a prolong partial or insults that
develop over a period thus allowing compensatory redistribution of
blood flow to
occur resulting in a different pattern of injury
(peripheral). He states that experiments performed in animal models
have demonstrated
that episodes of prolonged foetal Hypoxia result in
shunting of blood to vital brain structures, such the brain stem,
thalami,
basal ganglia, hypocampy, cerebellum, at the expense of less
metabolically active structures namely, the cerebral cortex and white
matter.
[98]
Dr Zikalala in his report also states that in the appropriate
clinical history setting, the pattern
and location of the injury may
be suggestive of an old hypoxic ischemic injury in its chronic state
of evolution in a term infant
exposed to acute profound asphyxia.
[99]
In short, both radiologists agree that the injury pattern to the
minor child presents itself
as an acute profound type of injury and
not a partial prolonged type of injury. They also do not categorise
it as a mixed pattern
of injury.
The
issue in dispute:
[100]
At the beginning of the trial the parties agreed that the only issue
for determination is that of negligence.
The
legal principles:
[101]
As I have stated herein before, t
he defendant
has admitted that he owed a duty of care to the plaintiff and the
minor child to render medical care of a reasonable
and acceptable
standard, to execute such duty with the professional skill and care,
as can reasonably expected from medical practitioners
and nurses and
not to act negligently and so cause harm to the plaintiff and the
minor child.
[102]
The case of
Kruger v Coetzee 1966(2) SA 428 (A)
,
established the test for negligence, and has been widely followed,
making it the
locus classicus
on this aspect. The
court held as follows at page 430 E - F:
"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 person or property
and causing him patrimonial loss;
and
(ii)
would take reasonable steps to
guard against such occurrence; and
(b)
the defendant has failed to take
such steps.
…
Whether
a diligens paterfamilias in the position of the person
concerned would take any guarding steps at all and, if
so, what steps
would be reasonable, must always depend on the particular
circumstances of each case. No hard and fast basis can
be laid down."
[103]
However, in cases like the present, involving organs of state, t
he
standard to be applied is not that of the reasonable person but that
of a reasonable organ of state. In
Moshongwa
v PRASA
[2]
,
the Constitutional Court stated that
‘
the
standard of a reasonable person was developed in the context of
private persons’ and given the fundamental difference
between
the State and individuals, ‘it does not follow that what is
seen to be reasonable from an individual’s point
of view must
also be reasonable in the context of organs of state’.
[104]
The plaintiff bears the onus of showing that the defendants breached
that duty of care and that they did act negligently.
The general rule
is that he who asserts must prove and the question of onus is of
cardinal importance. A plaintiff who relies on
negligence must
establish it and if at the conclusion of a case the evidence is
evenly balanced, a plaintiff cannot claim a verdict;
for he or she
will not have discharged the onus resting upon him or her.
[3]
[105]
The plaintiff as a party upon whom an
onus
of
proof rests, can only discharge that
onus
on
the basis of credible and reliable evidence which establishes
that his version is, as a matter of probability, the
truth and that
of his opponent false.
[4]
[106]
When dealing with expert evidence a court must determine whether and
to what extent the opinions of the experts
are founded on logic and
reasoning. It must be satisfied that such opinion has a logical
basis, in other words that the expert
has considered comparative
risks and benefits and has reached a defensible conclusion. An
opinion expressed without logical foundation
can be rejected.
[5]
[107]
Furthermore, before any weight can be given to an expert’s
opinion the facts upon which it is based must
be found to exist and
an opinion based on facts not in evidence, and I add that are
non-existent, has no value for the court.
[6]
[108]
It therefore follows that the credibility and reliability of the
factual witness, the plaintiff herein, impacts
on the probative value
of the expert evidence especially where the expert witness bases
his/her opinion on the facts provided by
the plaintiff.
[7]
Evaluation
[109]
The version given by the plaintiff in her pleadings, to her experts
and in court is inconsistent. First, she gave
a version that she
started feeling contractions around 15h00 on 11 September 2009. This
is the version she gave to Dr Ebrahim and
Dr Baba. She later, during
the trial, stated that she started feeling the contractions at 18h00.
She denied having told Dr Ebrahim
that she started feeling the
contractions at 15h00. Where both these doctors could have obtained
their version is not explained
by the plaintiff. They both claim that
the version was given to them, at different times, by the plaintiff.
[110]
Second, she stated, to Dr Ebrahim and Dr Baba that she arrived at
Baziya clinic at 16h00 and at the hospital at
19h00. This is
inconsistent with her version in the particulars of claim and in her
evidence. In the particulars of claim, her
case is that she arrived
at Baziya clinic at 19h00 and at Umtata General Hospital at 22h00.
[111]
The effect of the above is that it remains unclear, by reason of the
unreliable evidence of the plaintiff to the
doctors and in court,
whether the plaintiff was in latent or active phase of labour when
she arrived at the clinic and later at
hospital and what intervals of
monitoring were expected. This has an effect on the determination of
whether the staff at the hospital
failed to act in accordance with
reasonably accepted standards or in accordance with their legal duty,
as alleged by the plaintiff.
It has also affected the cogency of the
evidence of the experts.
[112]
She testified that at Mthatha General Hospital there was no
examination of the baby’s heart rate except for the first one
that occurred at 22h00 until she delivered at 6h30. To Dr Ebrahim she
stated that at 19h00 she was promptly seen by a nurse who
listened to
the foetal heart rate and did a vaginal examination and to Dr Baba
she stated that the foetal heart rate was checked
at 21h00 and again
at 23h00.
[113]
This is a further area where the evidence of the plaintiff has been
unreliable and has detrimentally affected
the cogency and reliability
of the opinion of the expert witnesses. In fact, even her evidence
that she was no monitored from 22H00
until she delivered at 06H35
remains unreliable. It also does not assist her case in the light of
what I state herein below.
[114]
The joint minutes of the radiologists describe the pattern of injury
as an “
acute profound”
pattern of injury, which is
an injury to the central part of the brain. They state that in the
absence of a sentinel event the
pattern may occur due to alternative
pathways of serial events over a prolonged period of time. They do
not explain how these alternative
pathways may cause this type of
injury over a prolonged period of time. They simply state that they
“
attach the most recent communication endorsed by
The
Newborn Brain Society
Guidelines and Publication
Committee
and defer to clinical and obstetric experts to
evaluate the described pattern against the available clinical and
obstetric records”
. No document is attached to the joint
minute and no evidence by the radiologists was led.
[115]
Dr Ebrahim testified that when there is lack of blood oxygen to the
brain, the brain normally shunts blood oxygen
to the central vital
parts of the brain so as to preserve them and that it is only when
the loss of oxygen is sudden and unexpected
that the brain will be
unable to improvise and shunt the oxygen resulting in damage to the
central part of the brain without the
outer or peripheral white part
being affected. He testified that a foetus with injury to the central
part of the brain is unlikely
to survive inside the mother’s
womb for more than 15 minutes. He stated that beyond fifteen minutes
the likelihood of death
is very high. He however, testified that
there was no sentinel event in this case and that suggests, so his
opinion went, that
the injury might have occurred over a long period
of time and that there were warning signs.
[116]
The minor child, it is common cause, was born alive. This is
indicative of the fact that the injury did not occur
over a period
longer than 15 minutes whilst the child was still inside the mother’s
womb. Otherwise, she would have died,
according the Dr Ebrahim,s and
Dr Keshave’s testimony.
[117]
The fact that no sentinel event was recorded in this case, and the
fact that no sentinel event may have occurred,
does not as a matter
of logic detract from the fact that the damage was from the asphyxia
typically caused by sentinel events,
i.e. profound asphyxia which
causes injury over a relatively short period of time. I therefore
reject Dr Ebrahim’s opinion
that the injury might have occurred
over a long period of time and that there were warning signs, which
were ignored or were not
picked up by the defendants due to lack of
monitoring.
[118]
Furthermore, absent any evidence of how the alternate pathways
referred to by the radiologists can create or cause
the kind of
injury pattern on the foetus, their opinion remains pure speculation
and conjecture. In
Coopers (South Africa) (Pty) Ltd v Deutsche
Gesellschaft für
Schädlingsbekämpfung
MBH
the SCA held:
‘
[An] expert’s
opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or
established by his own
evidence or that of some other competent witness. Except possibly
where it is not controverted, an expert’s
bald statement of his
opinion is not of any real assistance. Proper evaluation of the
opinion can only be undertaken if the process
of reasoning which led
to the conclusion, including the premises from which the reasoning
proceeds, are disclosed by the expert.
’
[8]
[119]
The effect of the above, in my view, is that the plaintiff has failed
to discharge the onus to prove any negligence
on the part of the
employees of the defendant.
[120]
In the result I make the following order:
The plaintiff’s
claim is dismissed with costs.
Z.Z.
Matebese
Acting
Judge of the High Court
Appearances:
For
the plaintiff:
Mr Du Plessis
SC (with Mr Sambudla)
Instructed
by:
Messrs Sakhela Inc.
For
the defendant:
Mr Mtshabe SC (with Mr Nabela)
Instructed
by:
State Attorney: East London
Date
Heard:
8 February
2022
Date
delivered:
24 May 2022
[1]
See
Report of Dr. Z Zikalala dated 3 August 2018.
[2]
Mashongwa
v PRASA
[2015] ZACC 36
;
2016 (2) BCLR 204
;
2016 (3) SA 528
(CC) para
40
[3]
See
HAL obo MML v MEC for Health, Free State 2021 JDR 2607 (SCA) ZASCA
Case Number 21/2019 (22 October 2021) para. 82 and the
authority
referred to therein.
[4]
See
Cotler
v Variety Travel Goods (Pty) Ltd
1974 (3) SA 621(A)
at 629H – 630A
[5]
See
HAL, supra para. 53.
[6]
See
HAL, supra para. 208 and the authorities referred to therein.
[7]
See
Hal, supra para.71-73
[8]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 371F-H;
PriceWaterhouseCoopers Inc and Others v National Potato Co-operative
Ltd and Another
[2015] ZASCA 2
;
[2015] 2 All SA 403
(SCA) paras
97-99.