About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2022
>>
[2022] ZAECBHC 43
|
|
Z.L obo A.L v MEC for Health (378/2019) [2022] ZAECBHC 43 (6 December 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– BISHO)
CASE NO.: 378/2019
Matter heard on: 16
November 2022
Judgement delivered
on: 6 December 2022
In the matter between: -
Z[....] L[....] obo
A[....]
L[....]
Plaintiff
and
THE MEC FOR
HEALTH
Defendant
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
JUDGMENT
SMITH
J:
[1]
The plaintiff instituted civil action against the defendant
personally and in her
representative capacity on behalf of her minor
child, A[....], for damages suffered as a result of an injury that
the latter sustained
during birth on 6 December 2012 at the Frere
Hospital, East London.
[2]
It is common cause that A[....] had suffered a brachial plexus injury
as a result
of shoulder dystocia, meaning that one or both his
shoulders got stuck inside the pelvis. The plaintiff averred in her
particulars
of claim that the injury was caused by the negligence of
medical staff at the Frere Hospital, who failed to implement the
appropriate
procedures when it became clear that A[....] presented
with shoulder dystocia. The plaintiff averred, furthermore, that
administering
of the appropriate procedures would have prevented the
shoulder dystocia and the resultant brachial plexus injury to
A[....].
[3]
At the request of the parties, I ordered the separation of the issues
of liability
and quantum of damages. The matter accordingly proceeded
on the issue of liability only, and determination of quantum was
postponed
sine die.
[4]
The plaintiff testified and called two expert witnesses, namely Dr
Olivier, an orthopaedic
specialist and Dr Ebrahim, an obstetrician.
They were not subjected to cross-examination, neither were any
aspects of their testimonies
challenged. Mr Pitt, who appeared for
the defendant, confirmed that he was unable to challenge the
plaintiff’s version or
the opinions expressed by her witnesses.
Their testimonies were consonant with the opinions of the defendant’s
experts as
confirmed in the joint minutes filed of record. In fact,
the only reason why the matter was not settled was because there was
not
sufficient time for Mr Pitt to take proper instructions.
[5]
The only questions which consequently fall for decision are whether:
(a)
the hospital staff were negligent in treating the
plaintiff during delivery; and
(b)
that negligence had caused A[....]’s
injury.
[6]
The plaintiff testified that she had given birth to two large babies
before A[....]’s
birth. When she went to the Empilweni Clinic
for her first visit, she was tested for HIV, diabetes and blood
pressure. She was
HIV negative and her blood sugar levels and blood
pressure were normal. On her second visit her blood pressure and
urine were tested
and found to be normal. The foetal heartrate was
also observed and she was told that it was normal.
[7]
She was admitted to the Frere Hospital at 7h00 on 6 December 2012,
after waking up
with abdominal pains earlier that morning. At the
hospital, a CTG belt was placed on her. When she felt the need to
urinate, the
belt was taken off. She went to the toilet and there
noticed a blood-stained vaginal discharge. A patient, who was with
her in
the toilet, told her that she was about to give birth.
[8]
She then returned to the bed where the CTG belt was re-applied. She
told the nurse
about the vaginal discharge and the latter did a
pelvic-vaginal examination and told her that she was still some way
off from delivering.
She thereafter experienced unbearable pain and
the nurse gave her an injection. She then slept for a while. When she
woke up, the
labour pains were severe and she was told to push in
order to deliver the baby.
[10]
Despite pushing to the best of her ability, the baby did not come out
and doctors and nurses
came to her assistance. At some point the
baby’s head had come out but not the rest of the body. One of
the medical staff
assisted her by pressing on the top part of her
abdomen, while others were holding her legs up. She was lying on her
back on the
hospital bed at the time. Another member of the medical
staff then inserted her hand into her vagina and pulled the baby out.
The
baby was thereafter taken to the nursery and she only saw him the
following day. She was told by the nursing staff that he had a
right
shoulder injury that occurred during delivery.
[11]
A[....] was thereafter given four sessions of physiotherapy. After
that, they were both discharged.
However, despite the physiotherapy,
his condition did not improve. A[....] is still unable to use his
right arm. It is very weak
and she has to assist him with ablutions
and other functions. His right arm is also considerably shorter than
the left and the
right hand is smaller than the left hand.
[12]
Doctor Olivier testified that he had examined A[....] during 2018,
when he was seven years old.
He confirmed that A[....] had suffered
an injury to the brachial plexus nerves (the network of nerves in the
shoulders), caused
by shoulder dystocia.
[13]
Doctor Ebrahim testified that the plaintiff presented with various
risk factors for shoulder
dystocia, which were not taken into account
by the medical staff during delivery. According to him, when
presented with the shoulder
dystocia, the medical staff failed to
apply the appropriate procedures which would have ensured safe
delivery of the baby’s
shoulders without injury.
[14]
The risk factors that have been highlighted, included the fact that
she had previously given
birth to two large babies, had gestational
diabetes, was overweight and presented with glycosuria. He was off
the view that the
medical staff would have been better prepared to
handle the shoulder dystocia if these antenatal risk factors were
kept in mind,
particularly when faced with a prolonged second stage
of labour.
[15]
He said that the Department of Health has compiled certain management
protocols for obstetric
emergencies, including shoulder dystocia,
which include the following:
a)
immediate call for help;
b)
the patient must be placed on the edge of the bed
or turned through 90 degrees so that her buttocks are on the edge of
the side
of the bed;
c)
the patient must then be adjusted into the
McRoberts position, namely lying flat with legs hyper-flexed against
the abdomen. The
McRoberts position widens the pelvis, flattens the
lumbar spine and moves the pubic symphysis. Two assistants may be
required to
ensure that the McRobert’s position is maintained
until delivery had been completed.
d)
suprapubic pressure must be applied obliquely to
dislodge the impacted shoulder. The application of fundal pressure
worsens the
impaction and should be avoided. The patient should be
encouraged to stop pushing before suprapubic pressure is applied as
this
also aggravates and increases the risk of injury.
These
steps are usually adequate to resolve cases of shoulder dystocia in
90% of cases without further complications for either
mother or
child.
[16]
Dr Ebrahim further testified that the application of fundal pressure
by a member of the hospital
staff worsened the situation as pressure
from above jams the impacted shoulder against the pubic symphysis. In
his opinion, if
suprapubic pressure had been applied instead of
fundal pressure, the amount of traction required would probably have
been less
and the brachial plexus injury could have been avoided.
[17]
He also referred to a joint minute prepared by himself and Dr
Batchelder (the defendant’s
expert obstetrician gynaecologist)
in which they agreed that: (a) the plaintiff presented with risk
factors for shoulder dystocia,
which included macrosomia and
prolonged second stage of labour; (b) when managing the shoulder
dystocia, the doctor positioned
the plaintiff’s leg
incorrectly. This significantly hindered his ability to overcome the
shoulder dystocia; (c) this situation
was further aggravated by the
use of fundal pressure. If suprapubic pressure had been applied
instead of fundal pressure, the shoulders
would probably have been
delivered normally and the injury would probably not have occurred;
(d) the failure to place plaintiff
in the McRobert’s position
and the use of fundal pressure rather than suprapubic pressure
probably resulted in the use of
greater traction to deliver the baby,
thus causing brachial plexus injury in the new-born and significant
loss of function to the
right arm and; (e) if these manoeuvres were
carried out correctly the injury would have been averted and A[....]
would have had
normal function of his right arm.
[18]
The plaintiff was 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 A[....]’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))
[19]
In my view it is manifest that the evidence presented by the
plaintiff established on a balance
of probabilities that:
(a)
the hospital staff were negligent in failing to
assess whether the plaintiff, a multigravida, had risk factors for
shoulder dystocia.
Had that been done timeously, a caesarean section
could have been performed, which would have prevented the injuries
from occurring;
(b)
once the plaintiff had presented with shoulder
dystocia, the hospital staff ought to have applied the procedures
prescribed in the
protocol. The failure to apply those procedures,
and in particular the application of fundal pressure as opposed to
suprapubic
pressure, has served to worsen the situation and had
probably caused A[....]’s brachial plexus injury.
[20]
There is also little doubt that the medical staff’s negligence
was the cause of A[....]’s
brachial plexus injury. Dr Ebrahim
has testified that the injury resulted from the shoulder dystocia,
which in turn was caused
by the failure of the hospital staff to
apply the correct procedures, in particular the McRoberts position
and application of suprapubic
pressure instead of fundal pressure.
[21]
In addition, Dr Olivier has confirmed that A[....] suffers from
brachial plexus injury of the
right arm. In his experience that type
of injury usually occurs during a difficult birth, in particular
cases of shoulder dystocia.
According to him the mechanism of the
injury is a traction injury which is caused where a baby’s head
has presented, but
the shoulders are stuck, and there is forceful
traction to dislodge the shoulders, without following the appropriate
procedure
to facilitate dislodgement.
[22]
The plaintiff has accordingly established, on a balance of
probabilities, that the hospital staff
were negligent in the
management of the plaintiff’s labour and that such negligence
has caused A[....] to suffer a brachial
plexus injury.
[23]
The following order accordingly issues:
23.1.
The defendant is liable for such damages as the
plaintiff may prove in her personal and representative capacities
arising from negligence
of the medical staff at Frere Hospital, which
caused A[....] to suffer a brachial plexus injury.
23.2.
The question of quantum is postponed sine die for
later determination.
23.3.
The defendant must pay the plaintiff’s
costs of suit, together with any reserved costs, such costs to
include:
23.3.1.
Costs of two counsel;
23.3.2.
The travelling and accommodation costs of the
plaintiff’s legal representatives, the costs for preparation
for trial and consulting
with the experts and preparation and drawing
of heads of argument;
23.3.3.
The traveling and accommodation costs of the
plaintiff and her legal representatives when consulting with the
experts, if any; and
23.3.4.
The consultation, preparation of medico-legal
reports, appearances, engagement in preparation of joint minutes and
qualifying expenses,
if any, and travelling costs, if any, of the
expert witnesses: Drs Olivier, Kara and Ebrahim.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Plaintiff
: Adv.
AM Da Silva SC
:
Msitshana Inc.
C/o Squires Smith &
Laurie Attorneys
44 Taylor Street
KING WILLIAMS TOWN
Counsel
for the Defendant :
Adv. D. Pitt
:
State Attorneys
C/o Shared Legal Services
Office of the Premier
35 Alexandra Road
KING WILLIAMS TOWN