C[....] and Another v E[....] (A398/2018) [2021] ZAGPPHC 210 (9 March 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 210
|

|

N.C and Another v P.M.E (A398/2018) [2021] ZAGPPHC 210 (9 March 2021)

SAFLII
Note
:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:A398/2018
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
DATE:9/3/2021
In
the matter between:
N
C
First Appellant
J
B
Second Appellant
and
DR
P. M. E
Respondent
Delivered.
This judgment was handed down
electronically by circulation to the parties’ representatives
by email. The date and time for
hand down is deemed to be 10h00 on 09
March 2021.
JUDGMENT
RANCHOD,
J
Introduction
[1]
This is an appeal against the whole of the judgment and order granted
by the trial
court (per Tlhapi J) on 14 August 2018. (The written
judgment was handed down on 20 August 2018.) Leave to appeal was
granted by
the court
a quo
to the Full Court of this Division
on 3 October 2018. The appellants thereafter filed an amended notice
of appeal as there was no
objection by the respondent to the notice
of intention to do so.
[2]
The parties agreed with this court’s view that the appeal may
be disposed of
without the need for oral hearing in terms of
section
19(a)
of the
Superior Courts Act 10 of 2013
. They were, however,
afforded the opportunity – in lieu of the oral hearing –
to file supplementary heads of argument
which they did.
[3]
The appellants seek condonation for the late filing of the record.
There is no objection
by the respondent and this court accepts the
reason for the late filing. Condonation is accordingly granted.
The
issues
[4]
The appellants are the biological parents of […] (‘[…]’),

who was born on […].  She was diagnosed as having Down’s
Syndrome. The appellants instituted action against the
respondent on
a claim for wrongful birth. In other words, the appellants sued for
the damages incurred in having to raise, maintain
and care for
Chelsea who is permanently disabled as a consequence of the Down’s
Syndrome. They pleaded both a contractual
and a delictual claim
against the respondent. The former is based on a partly written,
partly oral agreement. The written part
of the agreement is annexures
“A” and “B” to the particulars of claim being
a document titled ‘Consent
to the fees being charged by this
practice’ and the other titled ‘General terms and
conditions applicable to persons
joining this practice as patients.’
The terms of the agreement are extensively pleaded but the ‘catch
all’ term
is that the respondent would provide obstetric
services with the skill, care and diligence as could reasonably be
expected of a
specialist obstetrician. It is further pleaded that at
the conclusion of the agreement a document titled ‘Sonars/Screening

Tests’ (annexure “C” to the particulars of claim)
was furnished to the first appellant [by an employee] on behalf
of
the defendant.
[5]
The primary issue in this appeal is whether Dr E[...](the respondent)
was negligent
in the provision of ante-natal care to Ms […].
Factual
background
[6]
On 30 March 2011 the first appellant (Ms […]) consulted her
general practitioner
advising him that she suspected that she was
pregnant. A blood test was performed which confirmed that she was
indeed pregnant.
[7]
Ms C[...]consulted the respondent on 1 April 2011 with a view to him
providing antenatal
obstetric care to her during the course of her
pregnancy. He agreed to be
the
treating specialist gynaecologist and obstetrician and provided Ms
C[...]with antenatal care.
The
antenatal obstetric care included screening tests to ascertain the
chance that Ms […]’s unborn baby had Down’s

Syndrome.
[1]
He
delivered […] by caesarean section on [….] when it was
discovered that she had Down’s Syndrome.
[8]
The appellants contend that had the Down’s Syndrome been
timeously diagnosed
by the respondent during the course of the
pregnancy, Ms C[...]would have sought a termination of the pregnancy
in terms of the
Choice on Termination of Pregnancy Act 92 of 1996
(the Act). Because section 2(1) of the Act provides that a pregnancy
may only
be terminated up to and including the 20
th
week of pregnancy, only the first 20 weeks of gestation are relevant
here
[2]
. The fact that the
respondent did not diagnose the Down’s Syndrome thereafter, is
moot.
[9]
The methods of picking up whether an unborn baby may be suffering
from Down’s
Syndrome are fairly complex. The initial methods
used to pick up whether an unborn baby may be suffering from Down’s
Syndrome
are screening tests, as opposed to diagnostic tests. A
screening test involves the provision of an odds ratio of the unborn
baby
having Down’s Syndrome, but is not an assurance or
guarantee that it does not have it. Generally, only if a screening
test
indicates the possibility that an unborn baby may have Down’s
Syndrome is a diagnostic test recommended. This is because the

diagnostic test (in this case an amniocentesis)
[3]
has a risk (albeit small) of causing the spontaneous abortion of the
unborn baby, when it may be healthy and not suffering from
Down’s
Syndrome. The appellants’ claim is one which is characterised
as a wrongful birth claim
[4]
for
the loss which they say they have suffered for having to raise
Chelsea. It is not a claim by, or on behalf of, the child.
Screening
and diagnostic tests during pre-natal management
[10]
In the court
a quo
the experts, through counsel for both
parties, caused to be prepared notes for a better understanding of
the complex subject on
pre-natal management.
10.1
There is always a possibility of a woman giving birth to a child with
an irreversible congenital or genetic
disorder and, in certain cases
the risk of that happening increases as the woman grows older.
Screening and diagnostic tests have
been developed to assist in
identifying these disorders in women who carry or are at risk of
giving birth to a child with abnormalities.
Therefore, antenatal
management is important in that it entails the care by a general or
specialist obstetrician of the health
of the mother-to-be and the
foetus during pregnancy. Pre-natal and post-natal screening and
diagnostic tests are available; pre-natal
through screening and
diagnostic tests and, post-natal by the identification of physical
features combined with blood tests.
10.2    It
has now become common practice to make pre-natal tests available to
pregnant women in the early stages
of pregnancy (‘the first
trimester’) and in the middle of pregnancy (‘second
trimester’). Down’s
Syndrome can be identified as a
probability, by using the risk calculations done through screening
tests and can thereafter be
confirmed by diagnostic tests. The
patient is informed about the diagnostic tests available for her.
10.3
The screening tests are non-invasive in that they are done by
ultrasound scan and tests on blood taken from
the pregnant woman in
the first trimester, between 11 to 14 weeks and 3 days and in the
second trimester between 15 to 20 weeks,
in order to determine
whether there is high risk of chromosomal disorder in the foetus. In
the first trimester the ultrasound scan
shows images of the foetus to
evaluate the nuchal translucency
[5]
(NT) and the presence or absence of the nasal bone.  These are
said to be some of the physical soft markers to determine the

presence of Down’s Syndrome. The ultrasound scan is also used
to check the progress of foetal development throughout pregnancy.
The
blood samples are used to screen for certain blood markers that
indicate increased foetal risks for certain genetic disorders

including Down’s Syndrome.
10.4
The ultrasound scan measuring the nuchal translucency, combined with
blood tests for biochemical screening
to assess the PAPP-A (pregnancy
associated plasma protein A) and free BHCG (free beta-human chorionic
gonadotrophin), also referred
to as the Triple Test and assessment of
the nasal bone, increases detection of Down’s Syndrome to 95%.
10.5    If
screening in the first trimester has been missed a further blood test
for biochemical screening to assess
free BHCG Estradiol Alpha-feto
protein, can be done between 15 to 20 weeks of the pregnancy (second
trimester test). The test is
said to be a very poor screening test if
used alone and can miss diagnosis of Down’s Syndrome up to 40%.
It is recommended
to combine this test with the more accurate
biochemical tests conducted in the first trimester for reliable
results.
10.6
Diagnostic tests are offered to a pregnant woman when the screening
tests have identified a high risk of
the unborn child being born with
Down’s Syndrome. Counselling is offered to her to enable her to
make a choice whether to
retain the pregnancy or to terminate it.
[11]
The appellants’ case as set out in the original heads of
argument of the appellants was
that the primary issue of negligence
on the part of the respondent involves a determination of the
subsidiary issues of whether
Ms C[...]was provided with the results
of certain screening tests, and whether she was made aware that there
was a difference between
screening and diagnostic tests for Down’s
Syndrome. In broad summary, it is the appellants’ case that the
respondent:
11.1.1 failed to counsel
the first appellant in respect of the nature and efficacy of the
various screening and diagnostic tests
to enable her to make informed
choices;
11.1.2 failed to inform
the first appellant of his own shortcomings in the ability to perform
first trimester screening (referred
to as the ‘failure
rate’)
[6]
;
11.1.3 failed to perform
a proper estimation of the gestational age of the foetus, rendering
the second trimester screening test
void; and
11.1.4 failed to diagnose
the Down’s Syndrome in the foetus during the first appellant’s
pregnancy, particularly in
the first twenty weeks of the appellants’
pregnancy.
11.2
Had the respondent counselled the first appellant appropriately, and
performed the tests without negligence,
she would have been able to
make informed choices on the testing and diagnosis of Down’s
Syndrome.
11.3    In
regard to the second trimester screening test, it is the appellants’
case that there is so much
doubt on the validity of this test (also
called the triple test or 16 week test in the record) that it has
been rendered nugatory.
In the result, the respondent did no
effective test for foetal abnormalities during the first appellant’s
pregnancy. Had
the respondent performed the second trimester screen
test properly by informing the laboratory of an appropriately
accurate gestation
period, alternatively asking the laboratory to
provide two reports on the gestation of 16 weeks and 4 days as well
as the gestation
of 17 weeks and 5 days, the second trimester screen
test is likely to have shown a high risk, which would have led to a
diagnosis
of Down’s Syndrome in the foetus. The first appellant
would then have terminated the pregnancy and she and the second
appellant
would not have to incur the cost, for the remainder of
their lives, of raising and caring for a disabled child into
adulthood.
[12]
The respondent denied that he was negligent in the provision of the
antenatal care.
[13]
Prior to the hearing of the appeal, this court invited the parties to
make submissions on whether
the court
a quo
had misdirected
itself on the facts, and if so, to indicate where the misdirection
occurred. Both parties filed supplementary heads
of argument. The
appellants filed theirs dated 1 September 2020 and also filed an
amended notice of appeal (dated 16 September
2020).
[14]
In the extensive supplementary heads of argument it is now submitted
that the appellants rely
primarily on three aspects (based on
common-cause facts). The argument is that:
14.1
The respondent failed to refer Ms C[…] for a level 111 foetal
anomaly ultrasound scan;
14.2
The respondent failed to establish a reliable gestational age, which
in turn rendered the only test that
he did for Down’s Syndrome,
nugatory; and
14.3
The respondent failed to counsel, or adequately counsel Ms C[…]
on the nature and interpretation of
the screening and diagnostic
tests.
[15]
On the back of these new arguments which are now advanced, the
appellants suggest that the trial
court misdirected itself on a
number of factual findings which it made.
The
joint minute of Drs Pistorius and Lombaard
[16]
It would be apposite to refer to a minute of the meeting between Dr
Pistorius and Professor Lombaard
[7]
.
The minute sets out the following parameters:
16.1
Paragraph 2 deals with the counselling that should be given in
respect of first trimester screening. This
includes advising the
patient that the screening test is a combination of the measurement
of the nuchal fold and a blood test;
can be performed by an
obstetrician; can be performed in a particular window period; is the
preferred screening test; is only a
screening test, and that even in
the best hands some cases of Down’s Syndrome are missed.
16.2
What is important about the counselling of first trimester screening
is that ‘
technical detail
’ of the test is not
provided to the patient, and odds ratios, or detection ratios, and
risk ratios are not provided to the
patient.
16.3
Paragraph 3 records that during the initial counselling sessions
termination of pregnancy is not dealt with.
16.4    In
paragraph 4 it is noted that counselling for first trimester
screening should take place before the screening
is done, and that
this can happen at the start of the consultation during which the
first trimester screening is done, or at the
previous visit. There is
no need for counselling to take place long in advance of first
trimester screening.
16.5
Paragraph 5 deals with counselling in regard to diagnostic testing.
It is agreed that “
more detailed … counselling is not
warranted so as to overload the patient with non-essential
information.
”. This is a theme which runs through all
counselling – namely, that patients should not be overloaded
with non-essential
information. Counselling on diagnostic testing
includes that the patient should be advised that it is the only
definitive way to
make a diagnosis and that there is a risk of
miscarriage associated with invasive testing. It was agreed that:
“
The option of invasive testing is available to a high risk
woman or a patient who prefers to have a definitive test and not
screening.
”.
16.6
Paragraph 7 deals with the options available to a patient where first
trimester screening is impossible.
The first option available to such
a patient is second trimester screening. Significantly, diagnostic
testing is not the preferred
option.
16.7
Paragraph 8 deals with second trimester counselling. This arises
where first trimester screening was not
possible. Counselling for
second trimester screening includes: advising the patient that a
blood test can be performed as an alternative
method of screening;
second trimester screening “
might have a lower detection
rate … but performs better than second trimester ultrasound or
a nuchal translucency that was
measured incorrectly.
”, and
that the test is not a diagnostic test.
16.8
Paragraph 10 deals with Ms C[…], and records that it was
agreed that where a second trimester screening
test produces a result
of 1:2420, as was the case with Ms C[…], it would be
categorised as a low risk “
and would not prompt referral to
another specialist … for further screening or diagnostic
tests.
”.
16.9
Paragraph 10 is linked to paragraph 13. In paragraph 13 it is agreed
that Dr E[...]acted reasonably in his
management of Ms C[...] if he
counselled her properly. In other words, the experts agree that the
only question is a factual one
which relates to counselling. There is
no other issue that arises from Dr Engelbrecht’s treatment of
Ms C[...].
First
trimester screening test
[17]
It is common cause that the first trimester screening test (the 12
week test) is more sensitive,
or is a better test, than second
trimester screening (16 week test or triple test).
[18]
It is also common cause that the respondent attempted to measure the
NT of the foetus on two
occasions in the first trimester but was
unable to do so as the foetus would not co-operate. (By
non-co-operation is meant that
the foetus was not in the correct
mid-sagittal position to enable the measurement to be taken.) The
appellants aver that the non-provision
of the first trimester
screening, which is the best available screening, amounts to a breach
of the Act and therefore the respondent
is liable.
[19]
However, the respondent contended that first trimester screening is
dependent on the foetus co-operating
with the obstetrician. If the
foetus does not present in the correct mid-sagittal position, the
first trimester screening cannot
be undertaken.
[20]
The respective experts of the parties who testified on this point
were Professor (Dr) H. Lombaard
(for the plaintiffs) and Professor
Snyman (for the
defendant).
Dr Lombaard is a specialist obstetrician and gynaecologist and is a
Principal Specialist and Head: Maternal and Foetal
Medicine Unit
Steve Biko Academic Hospital, Department of Obstetrics and
Gynaecology at the University of Pretoria. Professor (Dr)
Snyman is,
likewise, a specialist obstetrician and gynaecologist. He is
Principal Specialist and Adjunct Professor at Kalafong
Hospital and
the University of Pretoria.
[21]
Both Doctors Lombaard and Snyman agreed that even in the best hands
it was sometimes not possible
to perform first trimester screening
because the foetus would not co-operate. Based on the available
images from the time that
the respondent attempted to perform the
first trimester screening, it was agreed that those images did not
depict a foetus which
was in a mid-sagittal position that would have
permitted first trimester screening to be carried out. They also
agreed that when
an obstetrician declines to perform first trimester
screening because the foetus is not in a mid-sagittal position, that
refusal
is a reasonable standard of conduct by that obstetrician.
[22]
In my view, where it is impossible to perform first trimester
screening, there can be no breach
of the Act. What have to be
provided are reasonable services, and depending on the circumstances,
the reasonable service may be
second trimester screening because the
first trimester screening was not possible. I will deal with the
second trimester screening
presently.
The
statistics issue (or, the ‘failure rate’) of the
respondent
[23]
The first trimester screening test was attempted by the respondent on
two occasions. The appellants
say that on his own version, the
respondent was not sufficiently skilled in performing the first
trimester screening test. His
evidence was that (in 2011) he had a
45% chance of failing in his attempts, whereas with practice and
continuing education, he
now (in 2015) only failed 2 to 3% of the
time. Accordingly, so it is argued, Ms C[...] was not afforded the
benefit of the most
sensitive screening test.
[24]
As I said, according to the evidence it is clear that measuring the
NT during the first trimester
screening depends on foetal
co-operation. In Ms C[...]’s case the foetus did not
‘co-operate’, i.e. it could
not be coaxed into a
mid-sagittal position to enable the respondent to measure the NT.
Therefore, the ability to perform the first
trimester screening is
not a measure of the obstetrician’s skill but rather a measure
of foetal co-operation. Hence, to speak
of a ‘failure rate’
seems to me to be misplaced. The ‘failure rate’ is in
fact the rate of foetal non co-operation.
The respondent was
cross-examined on this issue:
[8]
24.1
‘Doctor, in terms of … [indistinct] translucency
measurement, for purposes of first trimester
screening, are you able
to tell her Ladyship in how many instances, seeing that you do keep
statistics and you do not manage to
measure the nuchal translucency
for purposes of first trimester screening? --- In 2011 it was about
45% … 35% that I could
not measure, My Lady, 45%, My Lady,
that I could not measure.’
24.2    In
further cross-examination it is put to the respondent:
[9]
‘
Can her Ladyship
accept that you were aware in 2011 of this failure rate, seeing that
you are collecting the statistics? --- Failure
rate is not the right
word, My Lady, I think … [intervene]. Well, use the right word
… [indistinct]. --- The inability
to measure a specific …
inability to measure a specific nuchal fold to the extent that it
could be used in the detection
or in the calculation of the risk in
the first trimester.’
24.3
Further on during the cross-examination the respondent says:
[10]
‘
I think it is to a
certain extent unfair to compare my figures with those of the foetal
maternal specialists. There are only 40
of them in South Africa and I
think it is also just fair to mention what the figures of the general
gynaecologists, as far as the
first and second trimester screening is
concerned, My Lady.
I am not too sure, what
you are referring to, Doctor? --- How many first trimester screenings
and how many second trimester screenings
are done by the average
gynaecologists, the other 600 private gynaecologists.’
[25]
The appellants contend that the respondent should have told Ms C[...]
of his failure rate. Counsel
for the respondent makes the point that
the statistics were not available in May 2011 when the respondent saw
Ms C[...] because
they had only been prepared on 5 April 2012. It was
therefore impossible for the respondent to tell her what his ‘failure

rate’ was when he saw her a year earlier. The question arises
whether, it would have made a difference if the respondent
had
prepared the statistics of his ‘failure rate’ earlier and
had told Ms C[...] about it and if she had gone to another

obstetrician. There is no evidence of what could have occurred had
she gone to another obstetrician, and there is accordingly no

evidence that the outcome would have been different. The first
trimester screening is dependent on foetal co-operation and no amount

of evidence would have been able to predict what the foetus would
have done if Ms C[...] had gone to another obstetrician.
[26]
The only evidence in this case of the respondent’s skill in
measuring a nuchal fold is
his conduct in respect of Ms C[...]. Both
parties’ experts agreed that based on the presentation of the
foetus, as it appears
on the available images, the respondent was
correct in not performing first trimester screening. If it is
accepted, for the purpose
of the argument, that the respondent’s
‘failure rate’ is 45%, then his ‘lack of skill’
goes nowhere
in the case of Ms C[...] because her foetus refused to
co-operate.  Even if the respondent had been the world’s
foremost
obstetrician, he would still not have been able to perform
the first trimester screening on Ms C[...].
[27]
The evidence of Professor Snyman, who was the only expert who gave
evidence on the statistics
issue because of the late stage at which
the appellants introduced this into their case, said that it was not
expected of a reasonable
obstetrician to keep a ‘score card’
or to keep track of the statistics of his ‘failure rate’.
He testified
that the reasonable standard of practice for
obstetricians does not require them to advise their patients of their
‘success
rate’ or ‘failure rate’. It is
unhelpful to employ a general measure of success in the context of Ms
C[...] or
to assess an obstetrician’s ‘success rate’
for the purpose of assessing his proficiency. All of the experts
accepted
that even in the best hands it is not always possible to
measure the nuchal fold, and no one can say which unborn baby’s
nuchal fold can, or cannot, be measured. It is therefore highly
speculative to suggest, as the appellants seem to do, that another

doctor would have been able to measure the nuchal fold of Ms C[...]’s
unborn baby.
[28]
Professor Snyman further testified that an obstetrician’s
election not to measure a nuchal
fold because he could obtain the
necessary mid-sagittal view demonstrates an acceptable level of
confidence and skill. He said,
given the importance of the
measurement of the nuchal fold, it is unreasonable to measure it when
the correct mid-sagittal view
cannot be obtained. In the context of
Ms C[...], the only useful enquiry is to ask whether the respondent
failed to measure the
nuchal fold when he could have done so. All of
the experts agreed that based on the DVD recordings of the attempts
to measure the
nuchal fold there was no acceptable mid-sagittal view
in order to measure it. In these circumstances it seems to me that it
was
reasonable for the respondent not to measure the nuchal fold, and
this is entirely divorced from his general level of skill in
measuring nuchal folds.
[29]
The respondent said: “
The average gynaecologist in South
Africa presenting their screens to Lancet, have been consistent over
the past five, six years,
at 55%, My Lady. I just want to bring it to
the courts attention that to compare me to a foetal maternal
specialist is fine, but
I would like to also be compared to the
average gynaecologist.
” The cross examiner (Mr De Waal SC)
then asked the respondent whether he had that evidence, and he said
he did. He was then
asked if he was going to provide the letter
containing the figures from Lancet Laboratories.
[30]
Having asked for the letter containing the Lancet figures the
appellants should have led evidence
to rebut the Lancet figures which
they introduced into evidence through the respondent. Instead, Mr De
Waal attempted to distinguish
the Lancet figures from the
respondent’s failure rate but that was unsuccessful because he
missed the point that the respondent
was making. The point that the
respondent made was that the percentage of second trimester screening
tests performed by Lancet
Laboratories, on a national basis, compares
to his ability to measure the nuchal fold in the first trimester. In
other words a
patient who goes to the respondent (when he is unable
to measure 45% of nuchal folds) is in the same position as the
average patient
throughout South Africa, where 45% of patients do not
have first trimester screening, but instead have second trimester
screening.
Accordingly, Ms C[...] found herself in the same position
as the average obstetric patient in South Africa.
The
second trimester screening test
[31]
The appellants contend that the second trimester screening test is a
‘weak’ test
and that the respondent should not have
relied on it. They refer to the evidence of Professor Snyman on the
positive
predictive value
and the
negative
predictive value
of the second trimester screening test.
[11]
They contend that the evidence of the respondent’s own expert,
Professor Snyman was that the negative predictive value (in
other
words the predictive value of a test that shows a negative result) is
99.98% accurate. The positive predictive value (the
predictive value
of a test that is positive) is not very good, and if used alone can
miss a diagnosis of Down’s Syndrome
up to 40%. The reasons that
the negative predictive test shows an accuracy of 99.98% is because
of the low prevalence of Down’s
Syndrome which occurs in only 1
in 1000 pregnancies. Thus most pregnant women will test negative, and
that negative test is likely
to be correct because of the low
prevalence of Down’s Syndrome. Thus the positive predictive
value of a test can only be
acceptable, if the pregnant mother is
aware of its limitations and she accepts that risk.
[32]
Professor Snyman’s evidence of first trimester screening versus
second trimester screening
was that:
32.1
first trimester screening had a 99.98% chance of indicating that a
baby does not have Down’s Syndrome;
and
32.2
second trimester screening has a 99.96% chance of indicating that a
baby does not have Down’s Syndrome.
[33]
The appellants’ reliance on a figure of only 40% for second
trimester screening appears
to be based on a misunderstanding of
Professor Snyman’s evidence and an incorrect reference to the
sensitivity of second
trimester screening. HIs evidence was presented
graphically
[12]
to illustrate
the respective positive and negative predictive values depending on a
background prevalence of a particular condition.
He testified on the
importance of the positive and negative predictive value of a
screening test. The appellants have simply focussed
on the somewhat
blunt measure of sensitivity of a test.
[34]
Professor Snyman testified that even though the first and second
trimester screening tests have
a very high negative predictive value,
the possibility remains that some babies who have Down’s
Syndrome will not be detected.
As abnormalities in some babies will
not be detected by either the first or second trimester screening
test, one cannot say that
a test is ‘weak’ or
‘unacceptable’ simply because a baby is born with Down’s
Syndrome when the tests
indicated that it probably would not have
Down’s Syndrome. It seems that this is unfortunately what has
happened to Ms C[...].
She is one of the 4 out of 10,000 mothers who
would undergo second trimester screening testing where the presence
of Down’s
Syndrome would not be detected.
[35]
The respondent testified about the prevalence of second trimester
screening. He said that second
trimester screening accounted for 55%
of screening tests performed by Lancet Laboratories.
[13]
Two points emerge from this:
35.1
Firstly, it shows that in the majority of pregnancies (55%) the
screening test that is relied on is second
trimester screening. It is
difficult to imagine that the majority of pregnant women would be
subjected to second trimester screening
if it is a weak test; and
35.2
Secondly, if second trimester screening is only used once first
trimester screening has proved not to be
possible, then it shows that
in 45% of cases obstetricians are unable to obtain a reliable
measurement of the nuchal fold.
The
Level III anatomy scan
[36]
In their supplementary heads of argument the appellants suggest that
the respondent ought to
have referred Ms C[...] for a Level III
anatomy scan
[14]
. This
argument seems to be built on the premise that second trimester
screening is a ‘weak’ test. Once it is accepted
that
second trimester screening is not a ‘weak’ test then the
appellants’ argument for a referral for a Level
lll scan cannot
be sustained.
[37]
A further difficulty which the appellants face in arguing for a Level
III scan is that: Professor
Lombaard, the appellants’ expert,
agreed that the results produced by the second trimester screening
test indicated a low
risk of Down’s Syndrome, and he agreed
that those results did not indicate the need for any further tests or
investigations,
including a Level III anatomy scan, to be
performed.
[15]
[38]
A further point that Professor Lombaard made about referral for a
Level III scan was that although
it is a theoretical possibility, it
is not an option that is available in practice simply because there
are not enough Level III
qualified sonographers in the country.
[16]
[39]
In my view there is no basis to suggest that the respondent ought to
have referred Ms C[...]
for a Level III scan.
The
gestational age issue
[40]
The appellants, in both their main and supplementary heads of
argument submit that the respondent
incorrectly assessed the
gestational age. The accuracy of the gestational age impacts on the
accuracy of the
second trimester screening
test. The
appellants contend that the gestational age was incorrect by 7 to 8
days and therefore the second trimester screening
test was invalid.
[41]
Professor Snyman testified that the gestational age of the foetus is
measured by ultrasound (in
the case, as here, where a pregnant woman
does not know the date of her last menstrual period) by measuring the
crown rump length
[17]
of the
foetus on three or four successive visits early in the pregnancy.
Correlation of the measurements is key.
[42]
The respondent evaluated the foetal gestational age at 6 weeks on the
first visit (1 April 2011)
of Ms C[...]. Two weeks later (on 15 April
2011) he estimated it at 7 weeks and accordingly changed his first
visit evaluation
to 5 weeks. The respondent wanted to arrange a third
visit at about 10 weeks as he had doubt about the accuracy of the
gestational
age but as he was going to be away, arranged it for about
12 weeks (based on her second visit). At the following visit on 20
May
2011, and on his own version (with the experts in agreement), his
crown rump length assessment was not accurate and could not be
used.
At the next visit a few days later (on 24 May 2011) he did not do the
measurement.
[43]
At the next visit on 17 June 2011 the respondent again did not
perform the measurement. His computer
was ticking over the dates and
showed a gestational age of 16 weeks and 4 days, based on the 15
April 2011 assessment. He, however,
did do a bi-parietal diameter
measurement
[18]
which showed a
gestational age of 17 weeks and 5 days (an 8 days discrepancy). He
then sent the appellant for a blood test. The
laboratory was informed
that the gestational age was 16 weeks and 4 days.
[44]
The appellants contend that the respondent should not have relied on
a single, uncorrelated gestational
age and ignored the age elicited
by the bi-parietal diameter measurement. He could have asked the
laboratory for two reports; one
based on 17 weeks and 5 days and
another based on 16 weeks and 4 days but did not do so. Also, say
appellants, he did not mention
his doubt about the gestational age to
Ms C[...] and the import of that fact. The doubt about the validity
of the second trimester
screen rendered it nugatory. Hence, it is
argued, no valid test for foetal abnormalities was performed at all.
[45]
For the second trimester screening test to be valid, the gestational
age and other information
supplied to the laboratory must be correct.
The respondent testified:
‘
I
think in modern medicine, if you see a patient early enough in the
pregnancy, you should not be out by more than three days either
way.’
[46]
However, an incorrect gestational age is not the appellants’
case says the respondent.
Counsel for the respondent submitted
that in their supplementary heads of argument the appellants seek to
bolster their argument
on gestational age by impermissibly referring
to documents that did not serve before the trial court, were not
introduced into
evidence, were not testified to by any witnesses and
did not form the subject matter of any cross-examination or
consideration
by an expert. Therefore, these documents, and any
submission which refers to these documents must be disregarded. I
agree.
[47]
None of the appellants’ experts had questioned the gestational
age in their reports or
in their evidence. Where they referred to the
gestational age in their reports, they did so without criticism. Both
Professor Lombaard
and Professor Langenegger referred to the
gestational age in their respective supplementary reports when
referring to the images
without any criticism.
[48]
It seems to me that it is necessary to consider the context in which
the gestational age issue
arose. It was introduced in an application
dated 9 June 2016 to re-open the appellants’ case and allow,
inter alia,
for the first time an amendment to the claim. This
amendment inserted paragraphs 8.14.4 to 8.14.10 and 8.18 in the
particulars of
claim.
[49]
The stage of the proceedings at which the amendment was introduced is
relevant. The cross-examination
of the respondent had started on 23
April 2015. The proceedings were adjourned on 25 April 2015 in the
middle of the cross-examination.
The trial resumed on 6 June 2016 and
continued on 7 June 2016 and the amendment was delivered on 8 June
2016. The application by
the plaintiffs to reopen their case was
thereafter delivered on 9 June 2016.
[50]
In the application to reopen their case the applicants stated the
limitations that should be
placed on the further evidence that would
be led. They said they were to be limited to evidence that the
respondent “
doubted
the gestational age assessment (“the GA”) made by him on
ultrasound at the 7 week visit on 15 April 2011, and
that such GA was
used or relied on by the defendant [respondent] throughout the
plaintiff’s pregnancy and particularly for
the purposes of the
second trimester screening
”
and “
He
did not inform the first plaintiff of his doubt in this regard.
”
[19]
[51]
It is clear that what underpinned the appellants’ application
to reopen their case was
that the respondent doubted the gestational
age. But there is no allegation that the gestational age was, as a
fact, incorrect.
[52]
The absence of a suggestion that the gestational age was incorrect
appears to be consistent with
what the appellants’ then senior
counsel (Mr De Waal) explained their case to be when confusion arose
and the trial court
questioned what the appellants’ case was.
Mr De Waal said:
‘
My Lady, can I
just, to clarify at this point, seeing that there seems to be this
misunderstanding of what the plaintiffs’
case is? My Lady,
whether or not he got it wrong, he may very well have got it wrong,
but he may have got it right by chance.
The
point of the plaintiffs’ case is that
,
if Dr E[...]thought that he got it wrong, he ought to have conveyed
that to the first plaintiff and that could, or would, or would
not
have influenced the decision. That is going to be the question. It is
the risk factors introduced by his uncertainty about
things that need
to be accurate and so forth, that causes the whole cascade of what
happened after that. That is the same [
sic
]
of what the plaintiff is saying, or the plaintiffs are saying in this
case.
So
whether or not it was actually right, or wrong, we will argue in the
end, is, to some extent immaterial.
It is the fact that he thought he got it wrong, the doubt that he had
that he did not convey, because we knew – we know today,
he got
it wrong in terms of the fact that the baby was born with Downs
Syndrome. Just to clarify what our position is, my Lady.’
[20]
(My underlining)
[53]
Having clarified what the appellants’ case was, and having
allowed the respondent to proceed
with the case on that basis, the
appellants cannot now, at the appeal stage, seek to positively allege
that the gestational age
was incorrect. The prohibition on this
course of action was clearly set out in the
Knox
D’Arcy
case
[21]
where the trial court had clarified what the plaintiffs’ case
was
[22]
and where on appeal
the plaintiffs sought to argue a different case.
[23]
[54]
As I said earlier, the appellants’ experts in any event did not
question the gestational
age.
[55]
Ms C[...] testified when the appellants’ case was reopened. Her
evidence started when she
was referred to gestational age and the
measurement of the crown rump length. But her evidence then becomes
rather confused because
Mr De Waal referred to the measurement of the
crown rump length as a screening test when he should have referred to
the measurement
of the nuchal fold. Her evidence then returns to
gestational age and then again erroneously slips into the measurement
of the nuchal
fold. She then once again returned to gestational age.
She then said, when dealing with the nuchal fold:
‘
I would have
definitely asked for a diagnostic test, to make sure. 100% sure.’
[24]
[56]
The reference to diagnostic tests shows that Ms C[...] appreciated
the difference between screening
tests and diagnostic tests. Her
evidence on the issue of the gestational age is that in 2011, and
specifically on 15 April 2011
she would have asked for a diagnostic
test. However, she testified that she only learnt what a diagnostic
test is in January 2015.
[25]
This is what the appellants have argued before this court in
paragraph 77 of their main heads of argument. There is therefore a

fundamental difficulty with Ms C[...]’s evidence regarding the
gestational age.
[57]
Her evidence on the issue of the gestational age was taken up in
cross-examination by Mr Green
SC. She was asked why she says that the
respondent got the dates wrong. It was at this point that the trial
court raised the issue
of what the appellants’ case was. After
Mr De Waal explained what it was the cross-examination by Mr Green
continued and
the following exchange took place:
“
Let us have a look
at a few things you can comment on. Do you know that, when pregnancy,
or gestational age is measured, it is measured
from the first day of
the mother’s last menstrual period? --- No, I did not know.
Ok, well it is and let us
assume a perfect menstrual cycle of 28 days, ovulation then takes
place on the 14
th
day. Did you know that? --- I did.
Yes and it is only upon
ovulation that one can have fertilization of the egg, correct? ---
That is correct.
And the indication to the
mother that she is pregnant, is that, she would miss her next period
at the 28
th
day. Would you agree with that? --- That is
correct.
Yes. When you went to see
your general practitioner, you saw him at the end of March 2011,
correct? --- I could not give the perfect
date, but yes.
It was 30 March 2011. ---
Ok.
It is in your general
practitioner’s records, if we need to go there --- That is
fine.
Are you happy to accept
that? --- I will accept that.
Thank you. Yes and you
went to your general practitioner because you had missed a period,
correct? --- That is correct.
Yes and this was a
planned pregnancy, correct? --- That is correct.
Yes. So, let us just use
the numbers I have given you now. On the perfect menstrual cycle,
when you saw your general practitioner,
you would have been between 4
and 5 weeks pregnant, do you agree? --- I agree.
Yes and then when you
went to see Dr E[...]on 1 April he [assessed] your pregnancy, the
gestational age of your pregnancy as being
± 5 weeks, correct?
--- Correct.
Yes and two weeks later
he assessed it as being ± 7 weeks, correct? --- Correct.
You see, Ms C[...], your
evidence which you have just given, shows that Dr Engelbrecht’s
assessment of the gestational age,
at an order of weeks, is correct.
Do you want to comment on that? --- No.”
[58]
This evidence shows that the assessment of gestational age by the
respondent as being 7 weeks
is correct. It is not open to the
appellants to now, on appeal, seek to argue an entirely different
case when this issue was not
canvassed with Ms C[...], nor is it open
to the appellants to seek to introduce the general practitioner’s
records on appeal
when Ms C[...] expressly disavowed requiring them
to be produced.
[59]
But the point about gestational age was not left there and was again
taken up with Ms C[...]
as follows:
“
Yes. Ms C[...],
let us take the 7 week gestational age. That is the one we have used.
[If] Dr E[...]had said to you: “I have
some doubt about whether
you were 7 weeks pregnant.” Would you have said to him: “Hang
on, doctor, this is a planned
pregnancy? I watched when I missed my
period. This is how things happened. 7 weeks is correct. Do not
worry” --- I would
not know the relevance.
Yes. --- If he did not
explain to me the relevance of doubting the age.
Ms C[...], the question
has got nothing to do with what follows from the age. It has only to
do with the doubt about the age and
what you would have done.”
[60]
The appellants contend that the respondent had doubted his own
gestational age assessment. Reference
is made in the heads of
argument to the then counsel for the appellants’
cross-examination of the respondent on this point:
“
MR DE WAAL:
Dr E[…], you are not answering my question. In this jumping
around between doubting and not doubting, at least twice you
said
that you doubted the 7 week determination of gestational age. At
least twice. My question is: Why did you say that? –
My Lady, I
doubted the 7 week test. I am saying now that I doubted it and yes …
Okay, I doubted it. That is why I did the
10 week scan.
Or wanted … you
did not do a 10 week screen, Doctor. You wanted to do a 10 week
screen? – correct My Lady.”
[26]
[61]
The gestational age issue started with the respondent being
cross-examined about why he had initially
wanted to see Ms C[...]
when she was 10 weeks pregnant, and he said that one of the reasons
was to attempt to get a better, more
accurate, duration of pregnancy
before he attempts the first trimester screen. There was some debate
about the respondent getting
his patients into a routine and seeing
them every four or five weeks so that he could see them at about 12
weeks. In this context
he explained that he wanted to see patients
before the 12 week visit “
so that I can be certain that,
when I see her at the 12 week visit, that I am correct as far as my
gestation age is concerned.
” The respondent was then asked
why he had to verify the gestational age that he had determined at
seven weeks and he answered
“
I did not say that, My Lady. I
said that, between 7 and 10 weeks, but at 10 weeks you have the added
advantage of having a morphological
picture of the baby. So I wanted
to make sure that my dating at seven weeks was correct, My Lady.
”
[62]
Mr De Waal then asked the respondent if he thought that there was
something wrong with his 7
week dating. He responded that he wanted
to confirm that the date was correct. At this point the
cross-examiner said “
did you doubt your estimation of the
gestational age based on the ultrasound you did at 7 weeks
”,
and Dr E[...]said “
it could have been improved …
I
did not doubt it,
but it could have been improved.
It
could have been rectified by a day or two forwards or backwards
…
” The cross-examiner then wrongly  asked “
So
the answer is yes?”
In response, the respondent said “
I
did not doubt It
… I wanted to confirm that it was
correct…
” The cross-examiner then asked a further
incorrect question: “
What does it mean if you say it
could’ve been corrected?
” – the question was
incorrect because the respondent had not said the date could be
‘corrected.’ He responded
by saying “
My Lady,
correct, I doubt it.
”. Mr De Waal then pressed the point
and asked “
So you doubted the gestational age estimation
which you obtained at the 7 week visit, correct Dr E[…]?
”
and the respondent said “
I wanted to confirm that it is
correct, my lady
”. The point was persisted with, and the
cross-examiner asked “
Am I correct that you said you doubted
the estimation … Gestational estimation at the 7 week visit
doctor?
” The respondent said “
I did not doubt
it, my lady. I was quite certain
that it was … I
wanted to rectified by a day or two. Yes
I doubted for day,
or two, but not as a principle that she was seven weeks pregnant
.
It could have been out by a day, or two, my lady.
”.
The respondent was then asked to make a choice, did he doubt the
gestational age or not, and he said “
I did not doubt
it.
”. The respondent was then badgered by the
cross-examiner and he said “
I am saying that I doubted and
yes … Okay, I doubted it
”, but then returned to his
consistent line that “
It could have been out by a day, or
two
… that is on every single computer the fact
that there is always a two, three day window period.
” (My
underlining.)
[63]
Mr Green submits – correctly in my view, a fair and correct
assessment of the respondent’s
evidence is that he did not
doubt the correctness of the gestational age any more than every
other obstetrician who is compelled
to deal with ultrasound machines
that provide the gestational age in a range and not as an absolute
date. The suggestion that there
was any doubt in the respondent’s
mind that there was an error in the gestational age cannot be
sustained.
[64]
It is also significant that none of the appellants’ experts
questioned the gestational
age that the respondent had used. The
appellants’ experts had looked at the ultrasound DVD and the
still pictures –
all of which illustrate the calculation of the
gestational age by the ultrasound machine – and if there had
been something
wrong with the gestational age used by the respondent
they would have seen the problem – but they saw nothing wrong,
and
gave no evidence on this issue.
[65]
The only expert who testified on the gestational age issues was
Professor Snyman, and this came
about because the appellants
introduced the gestational age issue after their experts had
testified.
[66]
In his evidence on the gestational age issue Professor Snyman
explained what is set out in his
supplementary expert summary. He
said an obstetrician generally has two methods to calculate
gestational age. Firstly, the last
menstrual period date. A
calculation based on the last menstrual period date can be out by
several days because not all women have
a typical 28 day cycle. The
second method to calculate the date is by the ultrasound machine
using the crown rump length. The crown
rump length is used by the
computer program to calculate the gestational age and it is easy to
measure it. Because the computer
uses the 50
th
percentile
of crown rump lengths, the gestational age may be out by several days
and one can add or subtract 5 days from the calculated
gestational
age.
[67]
Professor Snyman further said that it is helpful to compare calendar
days with gestational age
calculated by the computer to see if they
correlate because this confirms the reasonableness of the calculated
gestational age.
[68]
The other evidence that was led dealing with the gestational age, in
my view puts the point beyond
doubt:
68.1    Ms
C[...] said she fell pregnant in March 2011 and it was a planned
pregnancy.
68.2    Ms
C[...]’s general practitioner assessed her as being pregnant
and shortly thereafter the respondent
assessed her as being about
five weeks pregnant. His assessment of gestational age as five weeks
is consistent with a woman who
is planning a pregnancy, misses her
menstrual period and then goes to see a doctor and the pregnancy is
assessed at five weeks.
This point was taken up with Ms C[...] and
the numerical calculations were put to her to demonstrate that there
was no basis for
a suggestion that the gestational age was incorrect.
68.3
When Ms C[...] was told by the respondent that she was about five
weeks pregnant at the first consultation
she did not raise an
objection to that estimation. Because this was a planned pregnancy Ms
C[...] would have had an idea of when
she conceived and she did not
object to the estimate of five weeks. If there was an error it would
be an error of an entire menstrual
cycle, so that Ms C[...] should
have said that the estimation is out by about 4 weeks. But she did
not do this.
68.4
Two weeks later the respondent, using his ultrasound machine and the
crown rump length measurement assessed
Ms C[...] as being seven weeks
pregnant. The gestational age is determined by the computer algorithm
embedded in the ultrasound
machine. According to the evidence the
respondent does not “
determine
” the gestational
age. It is determined by the ultrasound machine. So if the appellants
suggest that there was an error in
the respondent’s assessment
of the gestational age what they should be saying is that he
incorrectly measured the crown rump
length. They do not say so and
none of the appellants’ experts suggested that the respondent
incorrectly measured the crown
rump length.
68.5    Ms
C[...]’s next consultation with the respondent was on 20 May
2011. The ultrasound machine calculated
the gestational age as twelve
weeks. The increase in gestational age coincided with the passing of
calendar time.
68.6    At
the 17 June 2011 consultation the ultrasound machine assessed the
gestational age of the unborn baby at
sixteen weeks. Again the
increase in gestational age coincided with the increase in calendar
time.
68.7    If
the respondent had made a mistake in assessing gestational age at
seven weeks he would have now, for the
third time, made exactly the
same mistake – if the mistake had been different the
gestational age would not have coincided
with calendar time.
Professor Snyman testified that there was a correlation between
calculated gestational age and calendar dates
which indicated that
the gestational age was correct.
68.8
The crown rump length was also measured at 12 weeks and it too,
correlated with a 12 week gestational age.
[69]
The appellants, in their supplementary heads of argument, now argue
that there was an error of
seven to eight days in the gestational
age. However, as I said earlier, the appellants’ then senior
counsel said that their
case was not that there is an error in the
gestational age. He said the case related only to doubt, and the need
for the respondent
to inform Ms C[...] of his doubt. The appellants
therefore cannot argue for an error in the gestational age. But even
if there
is a variance of about seven or eight days in the
gestational age, according to Professor Snyman that is generally
within the accepted
range of error for measurements taken during the
first trimester.
[70]
The appellants took issue with the bi-parietal diameter
measurement
[27]
taken by the
respondent at an estimated 16 weeks of gestational age which
indicated a calculated gestational age of 17 weeks.  The

respondent’s evidence, which was supported by Professor Snyman,
was that “…
once
the gestational age is determined between 7 and 10 weeks, that is it,
you do not change it. You leave it there. You cannot
adjust it,
because that is the most accurate one that you get. If you adjust it,
you will, you will ignore babies that grow too
fast and babies that
grow too slow. So you must have a fixed dated by 10 or 11 weeks so
that you know how far this baby is.
”
[71]
According to Professor Snyman the variance of one week is well within
the expected error range of two
weeks for measurements taken during
the second trimester.
[72]
In my view, there is simply no factual basis for the appellants to
suggest that the gestational
age was incorrectly calculated, or not
calculated according to the standard required of a reasonable
obstetrician. There is no
evidence that if the gestational age was
incorrectly assessed, what effect that would have had on the
assessment of the likelihood
of the foetus having Down’s
Syndrome.
The
counselling issue
[73]
The appellants seem to argue that the respondent provided no, or very
little counselling, particularly
during the consultations on 17 June
2011 (at 16 weeks) and 15 July 2011 (at 20 weeks) when the screening
tests were performed.
Evidence was led by the appellants of witnesses
who were present at the consultations and the respondent also
testified on this
issue. It is the appellants’ case that had
they known that the second trimester screening test was not a
diagnostic test
Ms C[...] would have opted for one. I deal first with
the second trimester screening test.
The
17 June 2011 (16 weeks) consultation
[74]
Ms C[...] testified that her mother (Ms H[…]) accompanied her
to the 17 June 2011 consultation
with the respondent. She said the
respondent gave her ‘the Lancet forms’ to have blood
drawn. She said she did not
have any discussion about these blood
tests with the respondent at any stage.
[75]
Under cross-examination Ms C[...] agreed that when the form was given
to her she knew that it
was an important test and that it was to have
blood drawn for testing for Down’s Syndrome in her unborn baby.
She was asked
whether the court could accept that the second
trimester screening test “
was
an important test for [Ms C[...]]
”,
and she answered by saying “
well
I would say yes because
the
doctor made it sound
that this would be our result, this would sort us out, so yes.
”
[28]
This, to my mind, clearly indicates that the respondent had discussed
the second trimester screening test with her.
[76]
She also agreed that she would have been anxious to know what the
results of the test were, and
answered affirmatively when asked
whether “
the
results of this test on your version is going to tell you whether you
have to terminate the pregnancy or not, is that not correct?
-
Correct
”.
[29]
This is contrary to her evidence that the respondent did not tell her
about the results of the second trimester screening test
nor did she
ask him. This, in my view, is wholly improbable and must be rejected.
[77]
Mr B[…] did not attend the consultation on 17 June 2011.
[30]
However, he was present at some of the earlier consultations and
accepted that the respondent had told him and Ms C[...] that there

was a 16 week blood test that he would carry out. Further, that the
16 week blood test would assess the chance of the unborn baby
having
Down’s Syndrome, and he understood that to be the purpose of
the test. Mr B[…] then adjusted his evidence to
say that what
the respondent said was that there was a test (referring to the
second trimester screening test) “
to
determine if she was Down syndrome, not if there was a chance of her
having Down syndrome, as far as I can recall.
”
[31]
Asked whether he was changing his evidence, and whether he persisted
in saying that he understood the second screening trimester
test to
provide a definitive answer in respect of Down’s Syndrome, he
confirmed that he was changing his evidence to that
effect.
[32]
He also confirmed that he knew that the 16 week consultation was
important because a definitive test to establish whether the unborn

baby had Down’s Syndrome would be performed. He testified that
he was told by Ms C[...] that the second trimester screening
test had
been carried out.
[78]
Ms H[…], who attended the consultation on 17 June 2011 had
testified that after the consultation
Ms C[...] went for a blood
test. However, she said, nothing was discussed by the respondent
about the blood test at the consultation.
[79]
Mr Roux was not present at this consultation.
[80]
The respondent testified that at the 17 June 2011 consultation he had
completed the Lancet Laboratory
form and ticked the block indicating
that the Down’s Syndrome test was to be performed. When dealing
with what was said to
Ms C[...] on that day he said:
“
I
would have said to her that I am now sending her for a blood test to
do the so-called second trimester triple test down
[sic]
screen. My lady I said it, although it is not as accurate as the
first trimester test it is still an acceptable test and that the

results will also be reported as either negative or positive.
Negative meaning low risk and positive meaning high risk. I told
them
again that low risk does not exclude the possibility of a down
syndrome or other chromosomal defect baby. I also again reiterated

that if they want to have 100% confirmation we need to do a
diagnostic test and that is an amniocentesis with as you know a risk

of 1% for miscarriage.”
[81]
The appellants seem to take issue with this evidence on the basis
that the respondent did not
testify about exactly what he told Ms
C[...]. The respondent did say that he could not recall the precise
words used in consultation
with his patients. But he would tell them
all about the need for the blood test and the implications of the
results. It therefore
makes sense that he started off by saying ‘
I
would have…’
. He was accepted as a credible witness
by the trial court.
The
15 July 2011 (20 weeks) consultation
[82]
Ms C[...] testified that at the 15 July 2011 consultation she was
accompanied by Mr B[…],
his mother (Mrs B[…]), Ms H[…]
and Mr Roux. She said the only thing that the respondent said was
that he could see
on the scan and that he was doing measurements. She
denied there was any discussion about the results of the 17 June 2011
blood
tests and said nor were they discussed at any time before the
baby was born. She said the respondent did not inform her that the

baby had a low risk of Down’s Syndrome nor did he tell her that
an amniocentesis was not required. In short, she testified
that the
blood tests were not discussed at all.
[83]
Mr B[…] said the consultation on 15 July 2011 was an important
one therefore, on his version,
a definitive test for Down’s
Syndrome was going to be done that day. But as I mentioned earlier he
then changed his evidence
about whether the test will show a chance
of Down’s Syndrome or whether the test would be a definitive
one. He said there
was no discussion about the second trimester
screening test and he also did not hear the respondent convey any
information regarding
it to Ms C[...].
[84]
Ms H[…] flatly denied that any counselling took place at the
July consultation nor, she
said, did any discussions take place
regarding the result or the implications of the blood tests. There
was no discussion about
testing for Down’s Syndrome, she said.
[85]
But when it was suggested to Ms H[…] that her memory may be
failing her she said:
“…
, I went
with her for the sonar
and the whole purpose of this what is
happening now was about the Down Syndrome
which was not discussed
at any point with myself, or it will not be discussed with me but
with N[…]. That is why I am here,
not to remember if she had a
blood test or her blood pressure taken, that is what I am assuming
she had, blood pressure or whatever
they do in the little cubicle. …
What is important is her Down Syndrome, the fact that the child
had Down Syndrome and nobody picked it up, and it was not discussed.
No options were discussed at any stage.” (My
underlining.)
[86]
When it was put to her that she was only at court to offer evidence
which exclusively suits the
appellants’ case, she said:
“
I was not in a
discussion with somebody else, I was there for a reason, not to talk
about nonsense. If I did talk to somebody else,
I would not be able
to remember it, but it is unfair to say that doctor said, by the way,
N[…], the tests were negative,
we are all missing it, just
N[…] and the doctor knows, not sharing it with us. N[…]
would not keep quiet about it,
because immediately she would have
said listen you know, what now, please tell me what is the next step.
The tests are negative,
we would all hear it, OK doctor let us talk
about it now, what must we do now. Nothing was said, absolutely
nothing was said.”
[87]
Mr Roux’s evidence about the 15 July 2011 consultation
contradicted Ms H[…]’s
evidence. In evidence-in-chief he
said no blood test was discussed in his presence.
[88]
Under cross-examination however, Mr Roux accepted that he was aware
that Ms C[...] had undergone
blood tests at the 16 week scan, even
though he had not accompanied her to the 17 June 2011 consultation.
The following exchange
then took place under cross-examination:
“
I understand your
evidence to be that you did not hear Dr E[...]saying to Nadia that
the blood test results were negative is that
correct? –
M’Lady
I saw the doctor with the – I think it was Lancet if I can
remember the logo well,
because again I was a distance from him,
and I could see that you know he was looking at this paper but I
cannot recall that he
said anything about the blood test.” (My
underlining)
[89]
Mr Roux was then shown the laboratory form and confirmed that the
logo he had seen on 15 July
2011 is what appears on the Lancet
Laboratory form containing the results of the second trimester
screening test. He was then asked:
“
Mr Roux I want to
put it to you that we know, on your evidence, that Dr E[...]has a
Lancet Laboratory piece of paper before him
but what could have
happened is that Dr E[...]said to N[…] the blood test results
are negative, but you did not hear that
because your attention was
diverted. Either to the screen or you were engaged in a little bit of
hushed chatter with somebody else
is that a fair comment?”
Mr
Roux answered:
“
M’Lady
I
have to speak the truth
, that is possible yes but I have,
afterwards I asked [Ms H[…]] what was the outcome of the
blood test, which she then said to me that Nadia told her that it
was
low risk, did not use the word negative, I cannot exactly say but I
know that the blood test did not have an indication that
there is a
problem with that child so we were all relaxed and we thought that
everything was fine with this baby ,’Lady.
”. (My
underlining.)
[90]
Mr Roux explained that the discussion he had with Ms H[…] took
place in the car on the
way home from the 15 July consultation and he
recounted the discussion as follows:
“
M’Lady no,
it was in the vehicle when we were driving home after the discussion
and I asked her what the result of the blood
test, then she said no,
that it was – you know I cannot recall if it was low risk or
negative …”.
[91]
The appellants argue that Mr Roux’s evidence about the
discussion he overheard between
Ms C[...] and Ms H[…] is
hearsay and ambiguous and the trial court erred in relying on that
evidence. However, Mr Roux testified
about what Ms H[…] had
told him afterward as well in answer to a question from himself. In
any event, Mr Roux was called
as a witness by the appellants. It was
he who gave this information in cross-examination. Different
considerations may apply where
a party calls a witness to give
hearsay evidence in support of their own case. In any case, there is
no absolute bar or prohibition
on the acceptance of hearsay
evidence.
[33]
[92]
The respondent’s evidence about the 15 July 2011 consultation
was that he explained the
results of the second trimester screening
test to the appellants and pointed out to them that the test
indicated that there was
a low risk of the unborn baby having Down’s
Syndrome.
[93]
In my view, the probabilities on an assessment of all of the evidence
in relation to the 15 July
2011 consultation are that the results of
the second trimester screening test were explained to Ms C[...] and
she told her mother
about them. Ms C[...] must have told her mother
about the explanation provided to her during the consultation, or
shortly thereafter,
because Mr Roux’s evidence is that it was
during the car journey on the way home from the consultation that he
overheard
Ms C[...] telling her mother that the test results showed a
low risk of Down’s Syndrome.
[94]
Dr E[...]and Mr Roux’s evidence is further supported by the
probabilities. Appellants said
they were concerned about whether the
unborn baby suffered from Down’s Syndrome. They were aware that
the first trimester
screening test had not been carried out, and that
on 17 June 2011 blood had been drawn to perform the second trimester
screening
test. If the appellants were concerned about the Down’s
Syndrome status of the unborn baby the probabilities are strongly
in
favour of the appellants having asked Dr E[...]about the results of
the blood test at the 15 July 2011 consultation if he had
not already
volunteered those results. It is highly improbable that the
appellants, with their concern about Down’s Syndrome,
would
have allowed the 15 July 2011 consultation to pass without the
results of the second trimester screening test being discussed
with
the respondent.
The
Sonar Form and the consultations prior to 17 June 2011
[95]
Whilst at the respondent’s rooms at the very first consultation
a Nurse Swanepoel handed
the ‘Sonar Form’ to Ms C[...]
and had her sign the patient card to indicate that she had received
it. The respondent
testified that during the first consultation he
would tell his patients they must make sure that they read through it
and understood
it’s content. He would tell them that it has to
do with the ultrasound and the screenings ‘
could and might
and would be done’
during that pregnancy. In the Sonar Form
it is stated,
inter alia,
that ultra sounds are widely used
and are regarded as a very safe form of investigation to pick up
abnormalities of foetal growth
and development. He performs an
ultrasound investigation at each visit but only charges for the first
and twenty-week scan and
‘
if there is a medical indication
for a scan, such as threatening miscarriage or amniocentesis….
It
is however important to remember that all reports will always be
qualified as “
IT APPEARS NORMAL/ABNORMAL”
or “
IT
SEEMS TO BE NORMAL/ABNORMAL”
and it is never indicated to
BE NORMAL OR ABNORMAL.
.”
[96]
It is clear from the evidence that Ms C[…] accepted that the
Sonar Form was an important
document, more so because she was asked
to sign for it. She agreed that she would have picked up words in
capitals on the Sonar
Form. The words that are in capitals, and in
bold indicate that the sonar scan tests are simply screening tests
and are not diagnostic
tests. It is also stated in the form that if
he is not sure of either a normal or abnormal finding he will refer
the patient for
a second opinion or Level III scan. Further, that
regardless of this all patients have a right to request a Level III
scan. It
is then stated in the form that:
‘
RECOMMENDED
investigations regarding chromosomal defects like Down’s
Syndrome will be discussed at length. In short there are quite a
few
tests or screens available of which this practice will first try to
do the twelve- week test. If this is technically impossible
the
so-called triple test will be done at sixteen weeks. These tests try
to determine the risk of yur baby to have a chromosomal
defect and
will be reported as either negative (meaning low risk) or positive
(high risk). In the cse of a test being negative
it does not mean
that the baby is normal but only that the risk is so low that an
amniocentesis is not indicated. With a positive
test an amniocentesis
is indicated to confirm the diagnosis.’
[97]
The sonar form is a clear and concise summary of first trimester and
second trimester screening
and makes it clear that the results of
these tests are not definitive, and that what is being reported on is
the relative risk
of a baby having Down’s Syndrome. It also
draws a clear distinction between screening tests and diagnostic
tests. It uses
the word amniocentesis and makes the point that this
is a test to confirm whether an unborn baby has Down’s
Syndrome. The
form is unequivocal and clearly states that screening
tests are not diagnostic and refers to high and low risks. The use of
the
words ‘
appears
’ and ‘
seems
’
makes it clear that the tests that will be carried out are not
diagnostic tests. There is also a reference to Down’s
Syndrome
being discussed at length.
[98]
Ms C[...]’s evidence about the Sonar Form is that “
she
scanned it
” and that in doing so she recognised words “
here
and there
”. When asked why she had not read the Sonar Form
she replied, “
It M’Lady was my first appointment and
as I said Jason and I were very exciting (sic) about confirming my
pregnancy and my
last concern was reading pieces of paper given to me
on the first day.
” She agreed that the Sonar Form was an
important piece of paper, and when asked why she did not read the
Sonar Form in the
evening she said that she was still excited about
the fact that she was pregnant. When asked why she had not read the
form a week
later she replied that “
by then it was at the
back of my mind, I have (sic) forgotten about this form
”.
Ms C[...] agreed that there was nothing to stop her from reading the
Sonar Form. When the obvious negative consequence
of not reading the
Sonar Form was put to her she retreated from her position of not
having read the Sonar Form and said that she
had not read it
“
properly
”.
[99]
The expert witnesses agreed that the use of a form to convey
information to a patient is a useful
aid.
[34]
Where a written form is used to convey information to a patient the
doctor will adjust his counselling to allow for the fact that
the
written form has been provided.  It would be a total waste of
time if the Sonar Form was provided and the doctor still
continued as
if no form had been provided.
[100]
If recommended investigations regarding chromosomal defects like
Down’s Syndrome are not discussed later,
a patient will be able
to raise the issue with the respondent. It is common cause that the
appellants did not do so. Ms C[…]
conceded that if she had
read the sonar form and did not understand something she should have
asked the respondent questions. The
respondent was therefore entitled
to accept that the appellants had read the form and understood its
contents.
[101]
Ms C[...] accepted that she was made aware that there were screening
tests and that she knew that the first trimester
test was not a
definitive test. She knew it was an important test and that it had to
be done within a certain window period. When
the second trimester
screening failed she was not concerned because the respondent “…
reassured [me] that I can come back for a 16 week blood test.
”
She also knew this was a test for Down’s Syndrome. She agreed
that the 16 week test provided “
an indication
” of
Down’s Syndrome and when she was confronted with the fact that
she knew it was not a definitive test she recanted
and said that the
respondent had “
made us feel like this is what the result is
going to be
”, but she could not say when he had done this.
When pressed she said that he had said “
moenie worry nie,
julle kan terug kom vir die 16 weke bloedtoets
”
(‘don’t
worry, you can come back for the 16 week blood test.
’) What
emerges is that Ms C[...] knew the difference between screening tests
and diagnostic tests.
Factual
findings of the trial court
[102]
The appellants contend that the trial court made a number of
erroneous factual findings. I do not deem it necessary
to traverse
them in any detail as I am of the view that the record demonstrates
that the trial court’s factual findings are
in general correct.
I agree with Mr Green that the appellants are simply ‘snipping’
at the minutia of what the
trial court said in respect of some of the
evidence and does not get close to showing a misdirection. They are
required to show
something fundamental that goes to the ultimate
finding of the trial court. This the appellants have failed to do. In
Rex v
Dhlumayo and Another
[35]
it was held that a court of appeal is very reluctant to upset
the findings of the trial court, as the trial judge has the
advantage
of seeing and hearing the witnesses and observing their personalities
and demeanour. The trial court is in a better position
than the
appeal court to even draw inferences. The trial judge has an
advantage to determine what is probable and what is improbable
having
observed the witnesses in the course of the trial. The court
cautioned
[36]
that:
‘
An appellate court
should not seek anxiously to discover reasons adverse to the
conclusions of the trial Judge. No judgment can
ever be perfect and
all-embracing, and it does not necessarily follow that, because
something has not been mentioned, therefore
it has not been
considered.’
[103]
In my view there was no misdirection on the part of the court
a
quo
in the factual findings and the conclusions it reached that
are such as warrant this court to interfere.
[104]
In the result I propose an order that the appeal is dismissed with
costs including the costs of senior counsel.
___________________________
RANCHOD,
J
JUDGE
OF THE HIGH COURT
I
agree
___________________________
HUGHES,
J
JUDGE
OF THE HIGH COURT
I
agree
___________________________
VAN
DER WESTHUIZEN, J
JUDGE
OF THE HIGH COURT
Appearances:
For
appellants
:

Adv N.G.D Maritz SC & Adv W.L Munro
Instructed by Joseph’s
Incorporated
c/o
Geyser Van Rooyen Attorneys
383
Farenden Street
Arcadia
Pretoria
For
respondent:

Adv I.P Green SC
Instructed by MacRobert
Attorneys
C/O
Justice Mahomed & Jan Shoba Streets
Brooklyn
Pretoria
[1]
Down’s
Syndrome is a chromosomal disorder, which is present in the foetus
from the moment of conception. It is irreversible
but can be
detected in the foetus by certain tests during the antenatal period.
[2]
Section
2(1) of the Act provides:
(1)
A pregnancy may be terminated –
(a)
upon request of a woman during the first 12 weeks of the gestation
period of her
pregnancy;
(b)
from the 13
th
up to and including the 20
th
week of the gestation period if a medical
practitioner,
after consultation with the pregnant woman, is of the opinion that –
(i)
the continued pregnancy would pose a risk of injury to the woman’s
physical or
mental
health; or
(ii)
there exists a substantial risk that the fetus would suffer from a
severe physical or
mental
abnormality; or
(iii)
the pregnancy resulted from rape or incest; or
(iv)
the continued pregnancy would significantly affect the social or
economic
circumstances
of the woman; or
(c)
after the 20h week of the gestation period if a medical
practitioner, after consultation
with
another medical practitioner or a registered midwife, is of the
opinion that the
continued
pregnancy –
(i)
would endanger the woman’s life;
(ii)
would result in a severe malformation of the fetus; or
(iii)
would pose a risk of injury to the fetus.
[3]
Amniocentesis
is a diagnostic, invasive test involving the collection of amniotic
fluid by inserting a needle through the mother’s
abdominal
wall into the uterus under ultrasonographic guidance. The amniotic
fluid contains foetal cells that are examined for
chromosomal
disorders. There is a 1% risk of miscarriage with the performance of
this test.
[4]
See generally:
Stewart
and Another v Botha and Another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at para 9 footnote 12.
[5]
The
excess skin or fluids at the back of the foetal neck (nuchal
translucency or NT) of those suffering from Down’s Syndrome.

It can be visualized by ultrasonography in the third month of
intra-uterine life. The wider the NT, the higher the chance of
an
abnormality in the foetus.
[6]
Discussed
later herein.
[7]
Vol
4, p 363 – 365.
[8]
Vol 13 p1299 lines 4 – 10.
[9]
Vol 13 p1300 lines 10 – 16.
[10]
Vol 13 p1313 lines 7 – 15.
[11]
‘Positive and negative predictive values’ is a concept
introduced into this matter by the respondent’s expert

Professor Snyman. In essence these values are intended to show how
strong a negative result is, or how strong a positive result
is.
Thus one can consider what the chances are that the test is truly
false or truly positive. A
false
positive
test
result is one which shows a higher risk of an abnormality, but, in
fact, there is no abnormality. A
false
negative
test
result is one which shows a low risk of abnormality, whereas there
is in fact an abnormality. These results only occur in
screening
tests.
[12]
Exhibit E.
[13]
Exhibit L.
[14]
A
Level III scan is an ultrasound scan which is aimed at looking for
the so-called soft markers, or signs of abnormality. This
scan is
usually done by an obstetrician/gynaecologist who is also a
foetal-maternal specialist. It can be done at twenty weeks
or
earlier if there is a suspicion of an abnormality.
[15]
Expert’s Minute, Professor Lombaard, p364 line 25-28;
Professor Lombaard, p1052 line 7-10; p1063 line 4-5; and p1067 line

4-12.
[16]
Professor Lombaard, p1067 line 18-25.
[17]
Crown
Rump Length (CRL) and gestation:
This is the measurement of the foetus from the crown of the head to
the rump (buttocks). When the crown rump length is measured,
the
software of the computer will calculate the gestation. In the image
below, the crown rump length is 4.25 cm and the gestation
has been
calculated by the software at 11 weeks and 1 day. In order to get a
reliable gestation by use of this method, the crown
rump length
should be measured three times per visit, on three successive
visits. The earlier in pregnancy that these measurements
are taken,
the more reliable they are. The image below is an example and is not
Chelsea.
[18]
Bi-parietal
diameter (BPD):
This is the measurement of the foetal skull from the parietal bone
on the one side of the skull, to the parietal bone on the
other side
of the skull. This can also give a gestation period, but usually at
about 16 weeks or so.
[19]
Vol 5, p445 line 15 to p446 line 5.
[20]
Vol 15 p1579 lines 2 to 16.
[21]
Knox
D’Arcy AG and Another v Land and Agricultural Development Bank
of South Africa
[2013]
3 All SA 404
SCA.
[22]
‘[30] …“But Mr Burman, the defendant’s case
is that the parties never identified such a debt. You operate
on the
premises that such debt was identified, all what was thought agreed
upon was the criteria … they say that even
the identification
never took place let alone criteria, so you people are not with each
other …”
To
this summation, the appellants Counsel responded “Yes, yes,
you are entirely correct, M’Lord”. The case then

proceeded on that basis.
[23]
‘[35] It is trite that litigants must plead material facts
relied upon as a basis for the relief sought and define the
issues
in their pleadings to enable the parties to the action to know what
case they have to meet. And a party may not plead
one issue and then
at the trial, and in this case on appeal, attempt to canvas another
which was not put in issue and fully investigated.
…’
[24]
Vol. 15 p1570 lines 21 - 22
[25]
Vol.
5 p492 lines 16-19.
[26]
Vol. 14 p1052 line 17-24
[27]
Bi-parietal diameter measurement is the measurement of the foetal
skull from the parietal bone on the one side of the skull,
to the
parietal bone on the other side. This can also give a gestation age
but usually at about 16 weeks.
[28]
Vol. 6 p595 line 23-24.
[29]
Vol. 6 p596 line 12-14.
[30]
Vol. 7 p650 line 18-19
[31]
Vol. 7 p692 line 21-22.
[32]
Vol. 7 p693 line 2-3.
[33]
Section 3
of the
Law of Evidence Amendment Act 45 of 1988
.
[34]
Lombaard Vol. 10 p1065 line 4-10. Langenegger Vol. 8 p812 line
10-13; p814 line 10-16; p815 line 19-22.
[35]
1948 (2) SA 677
(A) at 705.
[36]
At 594.