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[2022] ZAECBHC 42
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NGM v Member of the Executive Council, Department of Health, Eastern Cape (420/2019) [2022] ZAECBHC 42 (8 November 2022)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION –
BHISHO)
CASE NO.: 420/2019
Matter
heard on: 26
th
,
27
th
October 2022
Judgement delivered on: 8
th
November 2022
In the matter between: -
N[....] G[....]
M[....]1
Plaintiff
(Born M[....]3)
and
THE MEMBER OF THE EXECUTIVE
COUNCIL,
Defendant
DEPARTMENT OF HEALTH, EASTERN CAPE
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED.
JUDGMENT
SMITH
J:
[1] In the early
hours of the morning on 24 May 2013, the highly pregnant plaintiff
was admitted to the Maluti
Health Centre (the Clinic), Matatiele.
About seven hours later she gave birth to a boy by vaginal delivery.
Sadly, it was immediately
apparent that there was something seriously
wrong with the child. He was barely alive, with low Apgar scores,
required resuscitation,
was limp and did not cry. He was later
diagnosed with hypoxic ischemic encephalopathy. The boy, M[....]2, is
now nine years old
and suffers from dystonic cerebral palsy, has poor
cognitive function, with epilepsy and microcephaly.
[2] The plaintiff
instituted action against the defendant for damages allegedly
suffered by her in her personal
and representative capacity as the
child’s natural guardian.
[3] The
plaintiff alleged in her particulars of claim that the defendant was
negligent in that he,
inter alia
, failed to: employ a suitably
qualified medical practitioner and experienced nursing staff to be
present at the Clinic to assess,
monitor and manage her labour
properly; ensure that the Clinic was properly equipped to enable the
timeous and proper performance
of a caesarean section if and when
required and; ensure that patients admitted to the Clinic could be
transported timeously to
another hospital or suitable medical
facility, should such transfer be required.
[4] She
averred furthermore that the defendant is vicariously liable for his
employees who were negligent,
inter alia
, in that they failed:
properly to assess and examine her upon her admission; to monitor her
labour and the foetal well-being appropriately
and with sufficient
regularity; to appreciate that she had developed complications during
the labour and that it was not progressing
appropriately as was
required in the circumstances; to request examination by a qualified
medical practitioner when she had complained
about severe abdominal
pain; to monitor the foetal heart rate appropriately and with
sufficient frequency; to request that a caesarean
section be
performed on her; and to arrange timeously to transfer her to an
appropriate facility for the performance of a caesarean
section. The
defendant denied those averments and put the plaintiff to the proof
thereof.
[5] Since the medical
records were introduced into evidence by agreement and their contents
admitted, it was unnecessary
for the plaintiff to testify. The
plaintiff therefore only called three expert witnesses, namely Dr
Linda Murray, an obstetrician
and gynaecologist; Prof Savas
Andronikou, a paediatric radiologist; and Dr Yatish Kara, a
paediatrician. Mr
Pitt
, who appeared for the defendant,
indicated that since the opinions of the plaintiff’s experts
were not in dispute, he would
not cross-examine any of them. Their
testimonies thus remain unchallenged. The defendant closed his case
without calling any witnesses.
[6] Dr Murray
testified that the plaintiff’s antenatal period was uneventful,
save for the fact that she
had developed high blood pressure during
late pregnancy. She attended clinic on various occassions and no
concern in respect of
her or the foetus was noted. She was admitted
to the Clinic, in labour, on 24 May 2013. On admission, it was
discovered that she
had high blood pressure. Dr Murray was of the
view that she ought to have been immediately referred to hospital in
compliance with
the Maternity Guidelines.
[7] She was examined
at 02h00 and found to be 6 cm dilated. She was therefore in the
active phase of the first
stage of labour. Her blood pressure
remained high. She was thereafter examined at 04h00 and again at
06h00, throughout which time
she remained at 6 cm dilated, and her
blood pressure remained high. Dr Murray said that the foetal
monitoring between 02h00 and
06h00 was therefore contrary to the
Maternity Guidelines and consequently substandard.
[8] At 06h00 she had
crossed the action line on the partogram – meaning that labour
was progressing too
slow - and her dilatation remained at 6 cm. This
should have caused alarm bells to ring since it is accepted that
labour ought
to progress at 1 cm per hour. The plaintiff should
therefore have delivered by 07h00. Despite this the staff did not
take any action
in respect of the labour as required by the Maternal
Guidelines. Any labour that exceeds the action line requires
continuous cardiotocography
monitoring, which also was not done in
her case.
[9] Dr Murray
furthermore said that in view of the fact that the plaintiff had
crossed the action line,
she ought to have been referred to a
hospital. This was never done. Furthermore, no monitoring was done
between 06h00 and 09h25
when the plaintiff eventually gave birth.
This happened despite the fact that at 07h45 the staff had decided to
transfer her to
a hospital. For some reason this never happened.
[10] At birth the
baby was nearly dead, had a low Apgar score, needed resuscitation,
had aspirated meconium, was
limp and did not cry. The medical records
furthermore indicate that despite the fact that foetal distress was
present, the defendant’s
staff did not take any cognizance
thereof and in all likelihood had missed it due to substandard
monitoring. She furthermore testified
that a combination of foetal
distress, the condition of the baby at birth, low Apgar scores and
the fact that meconium was present,
indicate a high probability that
the injury was due to hypoxia during labour. The records furthermore
indicate that the child was
diagnosed with hypoxic ischemic
encephalopathy after birth. She furthermore expressed the opinion
that on a conspectus of the evidence
it appears highly unlikely that
the injury was caused either ante - or post-partum. In addition, she
was of the view that no sentinel
event had occurred.
[11] She furthermore
testified that the condition of the foetus was initially fine and
worsened during the course
of labour as a result of the failure by
the staff to monitor and manage the labour appropriately in
accordance with the prescribed
guidelines. She said in conclusion
that had monitoring been done in accordance with the legal
requirements and guidelines, the
staff would have picked up the
foetal distress and could have taken the appropriate steps which, in
all probability, would have
prevented brain damage to the foetus. She
also confirmed a joint minute which had been concluded with Dr.
Janovski, the defendant’s
expert, who was in agreement with her
conclusions and opinions.
[12] Prof
Andronikou testified that the injury was a combination of a
partial-prolonged and acute-profound
injury. The acute-profound
injury would have occurred after the prolonged portion of the injury.
The MRI scan indicated an injury
to a term baby, which excludes the
possibility that the foetus was injured early in pregnancy or after
birth. In his opinion there
is a high probability that the injury
occurred during the course of labour, namely intra-partum. He also
confirmed that the child’s
clinical picture and the injury
pattern was consistent with the child’s present condition. He
testified, in addition, that
hypoglycaemia was noted, which should be
regarded as an additional feature and not as the original cause of
the injury. In his
opinion the probability that the injury could have
been caused by other factors was extremely low.
[13] Dr Kara
confirmed that the child is suffering from dystonic cerebral palsy,
has poor cognitive function,
with epilepsy and microcephaly. He was
also of the opinion that the MRI scan clearly indicates that the
child’s condition
was caused by a hypoxic ischemic injury.
Insofar as the timing of the injury is concerned, he indicated that
there was nothing
in the records to indicate the presence of any
antenatal risk factor or to suggest that the injury occurred after
birth. He said
that in his opinion there is almost zero probability
that the injury occurred after birth. In his opinion, based on the
fact that
there was foetal distress, poor progress in labour,
meconium liquor, low Apgar score at birth and need for resuscitation,
evidence
of moderate encephalopathy for several days after birth, and
the findings of the MRI scan, there is a high probability that the
hypoxic injury which resulted in cerebral palsy occurred during
labour.
[14] The test for
negligence is whether a reasonable person in the position of the
defendant would foresee the reasonable
possibility of his or her
conduct injuring the person of another or his or her property and
causing him or her patrimonial loss;
would take reasonable steps to
guard against such occurrence; and that the defendant has failed to
take such steps. (
Kruger v Coetzee
1966(2) SA 428 (A) at
430E-F) [33] I am mindful though of the dangers inherent in applying
the abovementioned test in an inflexible
and rigid manner. In
Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
and Another
2000 (1) SA 827
(SCA), at
para. 22, Scott JA cautioned against such ‘rigid adherence to
what is in reality no more than a formula for determining
negligence
must inevitably open the way to injustice in unusual cases’.
[15] Thus the plaintiff is
required to prove, on a balance of probabilities, that the
defendant’s employees failed
to exercise reasonable skill and
care, in other words, that their conduct fell below the standard of a
reasonably competent practitioner
in their field and that the
aforesaid negligence caused the child’s injury. A medical
practitioner is bound to employ reasonable
skill and care, and is
liable for the consequences if he or she does not. (
Goliath v
Members of the Executive Council for Health, Eastern Cape
2015
(2) SA 97
(SCA))
[16] The plaintiff
is not required to prove that the inference she contends for is the
only reasonable inference.
It is sufficient for her to convince the
court that the inference advanced “is the most readily apparent
and acceptable inference
from a number of possible inferences”.
(
Goliath
(supra), at para. 19)
[17] The court should
select a conclusion that it deems to be the more natural appraisable
conclusion from amongst several
conceivable ones, even though that
conclusion may not be the only reasonable one. The inferences drawn
from the facts must be based
on proved facts and not matters of
speculation. (
AA Onderlinge Assuransie Beperk v De Beer
1982
(2) SA 603
(A))
[18] Where a
plaintiff is not in a position to produce evidence on a particular
aspect, less evidence will suffice
to establish a prima facie case
where the matter is peculiarly within the knowledge of the defendant.
In such a situation there
is an evidentiary burden upon the defendant
to show what steps were taken to comply with the standards required.
[19] The criterion
for determining factual causation, namely the well-known “but-for
test” was formulated
as follows by Corbett CJ in
International Shipping Co (Pty) Ltd v Bentley
1990(1) SA 680 (A)
([1989] ZASCA 138) at 700E – H.
“
What it essentially lays down
is the enquiry — in the case of an omission — as to
whether, but for the defendant's wrongful
and negligent failure to
take reasonable steps, the plaintiff's loss would not have ensued. In
this regard this court has said
on more than one occasion that the
application of the 'but-for test’ is not based on mathematics,
pure science or philosophy.
It is a matter of common sense, based on
the practical way in which the minds of ordinary people work, against
the background of
everyday-life experiences. In applying this
common-sense, practical test, a plaintiff therefore has to establish
that it is more
likely than not that, but for the defendant's
wrongful and negligent conduct, his or her harm would not have
ensued. The
plaintiff is not required to establish this causal
link with certainty.”
[20] Thus a
plaintiff is not required to establish a causal link with certainty,
but only that the wrongful conduct
was probably a cause of the loss.
This calls for sensible retrospective analysis of what would have
probably occurred, based upon
the evidence and what can be expected
to occur in the ordinary course of human affairs, rather than an
exercise in metaphysics.
The correct approach is not to search for
scientific certainty, but to assess where the balance of
probabilities lie on a conspectus
of all the evidence adduced in the
case (
Minister of Safety and Security v Van Duivenboden
2002
(6) SA 341
SCA at 25);
Minister of Finance and others v Gore N.O.
2007 (1) SA 111
(SCA); (
Michael and another v Linksfield Park
Clinic (Pty) Ltd and another
2001 (3) SA 1188
(SCA), at 1201).
[21] In
Oppeldt v
Department of Health
2016 (1) SA 325
CC, at paras. 34 to 50, the
Constitutional Court held that the ‘but-for’ test
requires flexibility and a common sense
approach when the issue of
causation has to be decided on the ground of an alleged negligent
omission, as opposed to a negligent
commission.
[22] Applying the
abovementioned legal principles to the facts of this case, there can
be little doubt that the plaintiff
has established, on a balance of
probabilities, that the child’s injury was caused by the
negligent conduct of the medical
staff at the Clinic. The uncontested
evidence clearly established that the defendant’s employees
were negligent. It was established,
soon after the plaintiff’s
admission to the Clinic, that her blood pressure was dangerously
high. Dr Murray was of the view
that this should immediately have
alerted the nursing staff to the fact that it was going to be at high
risk labour. Despite this
diagnosis, they neglected to monitor the
plaintiff’s condition and foetal well-being in accordance with
the Maternity Guidelines.
Even when it had become clear that the
plaintiff had crossed the action line and that labour was progressing
dangerously slow,
the staff did not take any steps to ensure foetal
well-being. It had obviously become clear to them that there was a
need for her
to be hospitalized, but for some reason this did not
happen.
[23] There was also a
period of at least three hours when the foetal heart rate was not
monitored at all. Dr Murray
was of the opinion that it was clear that
there was foetal distress and that it would have been picked up had
the nursing staff
monitored the foetal heart rate in accordance with
the Maternity Guidelines. She was also of the view that had the
foetal distress
been picked up timeously, steps could have been taken
to prevent injury to the child.
[24] The experts were also
in agreement that the hypoxic ischemic injury had occurred
intrapartum. They have provided
compelling reasons why they have
excluded the possibility of antenatal or postnatal injury. They were
also all in agreement that
the brain injury occurred as a result of
the substandard treatment administered by the defendant’s
employees.
[25] I
am accordingly of the view that the evidence established that the
child’s brain injury
and consequent cerebral palsy was caused
by the negligent management of plaintiff’s labour by the
defendant’s staff.
I am furthermore of the view that the
evidence also established that if they had acted appropriately and in
terms of the Maternity
guidelines, the brain injury to the minor
child could have been avoided.
[26] In the result
the following order issues:
1.
The defendant is liable
for such damages as the plaintiff may prove both in her personal and
her representative capacity on behalf
of her minor child, M[....]2,
in respect of the negligent treatment she received during her
pregnancy, labour and the delivery
of M[....]2 on 24 May 2013.
2.
The defendant is liable
for the costs of trial on the issue of liability, including all
reserved costs, if any, together with interest
thereon at the
prevailing legal rate from 14 days after date of taxation or
agreement to date of final payment thereof, which costs
will
furthermore include;
2.1
the costs of two
counsel;
2.1.1.
the costs of preparing for
consultations and trial, including the costs of consultations with
the various expert witnesses and the
plaintiff;
2.1.2.
the traveling and
accommodation costs of plaintiff’s legal representatives
attending consultations and court;
2.1.3.
the costs of trial from 22
to October 2022 up to and including 27 October 2022, including
counsel’s day fees;
2.1.4.
the costs of preparing the
heads of argument; and
2.1.5.
the reservation and
appearance fees, if any, together with the qualifying fees, if any,
and the traveling costs, if any, of plaintiff’s
expert
witnesses whose reports were filed in terms of rule 36(9) and the
costs of preparing their reports and supplementary reports,
if any,
together with the costs of preparing the joint minutes including the
costs of attending consultations and trial.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Plaintiff
:
Adv. Schoeman SC with
Adv. Ayerst
:
Mpambaniso Attorneys
c/o Gordon McCune Attorneys
140 Alexandra Road
KING WILLIAM’S TOWN
Counsel
for the Defendant :
Adv. Pitt
:
The State Attorney
c/o Office of the Premier
32 Alexandra Road
KING WILLIAM’S TOWN
(Ref. 517/16-P17 (Mr. Isaacs)