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[2021] ZAGPJHC 475
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EN on behalf of RN v The Minister of the Executive Council for Health (Gauteng) (36681/2017) [2021] ZAGPJHC 475 (28 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
36681/2017
Reportable:
No
Of
interest to other Judges: No
Revised:
Yes
Date:
-28 September 2021
In
the matter between:
EN
obo
RN
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH
(GAUTENG)
Defendant
J
U D G M E N T
MAIER-FRAWLEY
J
:
Introductory
background
1.
The plaintiff instituted a
claim for delictual damages on behalf of her minor child (NR)
(hereinafter referred to as ‘baby
R’) against the MEC as
the employer of the nursing and other medical staff at Natalspruit
hospital on 24 September 2009.
The plaintiff’s claim against
the MEC was brought on the basis that he was vicariously liable for
the negligent conduct of
the employees of the defendant who attended
to the plaintiff (and her then unborn twins) at the hospital after
her admission and/or
who attended to baby R after her birth. She
claims that this negligence caused and culminated in baby R
developing cerebral palsy
as a consequence of a hypoxic-ischaemic
event that resulted in irreversible brain damage being sustained by
baby R.
2.
Pursuant to an agreement
between the parties’ legal representatives, the issue of
liability (negligence and causation) was
to be tried separately from,
and before, the remaining issues in the action. It was implicit in
the parties’ agreement (and
indeed confirmed by the defendant’s
counsel at the outset of the trial) that if causal negligence on the
part of the medical
staff was established, it would be reasonable in
the given context - in particular, the defendant’s admission
that the treating
medical staff had been under a legal duty of care
to treat their patients with professional skill and care - that
liability for
such damages as the plaintiffs might prove would
follow; in other words, that the element of wrongfulness for the
purpose of delictual
liability would also have been established.
3.
In her particulars of claim, the plaintiff pleaded that the
defendant
owed her and her twins a legal duty of care, which was breached by
employees of the defendant who were alleged to have
been negligent in
several respects, but which for purposes of the judgment, in the
main,
inter alia
, included that they:
3.1.
Negligently prolonged the plaintiff’s labour;
3.2.
Failed to perform a caesarean section (c-section) timeously or at
all;
3.3.
Failed to monitor the foetal heart rates appropriately, timeously or
with sufficient
frequency and/or at all and/or failed to detect that
baby R was in foetal distress;
3.4.
Failed to take ‘steps to prevent the dangers of multiple
gestation’;
3.5.
gave inadequate care to baby R during and after her birth by: failing
to properly
monitor both foetusses; failing to give baby R enough
oxygen; failing to prevent baby R from suffering from hypothermia and
failing
to prevent her from suffering a hypoxic ischaemic event
during or after her birth, causing her to sustain a brain injury
which
resulted in her suffering from cerebral palsy;
3.6.
negligently unnecessarily administered AZT and Neviraprine to both
twins whilst the
plaintiff was HIV negative.
4.
The defendant opposed the action and filed a plea,
inter alia:
4.1.
denying that the employees of the defendant were negligent in any of
the respects
alleged or at all; and
4.2.
pleading that there was no causal connection between the negligence
(if any) and
the cerebral palsy sustained by baby R. It is noteworthy
that no contributory negligence on the part of the plaintiff was
raised
in the plea.
5.
The plaintiff called the following witnesses to testify at the
trial:
5.1.
Mrs ‘EN’ (plaintiff);
5.2.
Dr Mbokota (Obstetrician & Gynaecologist);
5.3.
Prof Nolte (Nursing Professional) and
5.4.
Dr Lefakana (Paediatrician).
6.
The defendant called the following witnesses to testify at the
trial:
6.1.
Dr Ramodike (Attending doctor in the labour ward at Natalspruit
hospital on 24 September
2009 who delivered the leading twin, a baby
boy and brother of baby R)
6.2.
Sr Masakale (Midwife who delivered baby R);
6.3.
Dr Manthata-Cruywagen (Obstetrician and Gynaecologist);
6.4.
Dr Kganane (Paediatrician) and
6.5.
Dr Mogashoa (Paediatric Neurologist).
7.
It was common cause that baby R suffered a central (acute profound
pattern) hypoxic ischemic brain injury, as per the joint minute
prepared by the radiologists appointed by the parties, although
the
cause and probable timing of the hypoxic ischemic event (HIE), i.e.,
whether it occurred before or after her birth on 24 September
2009 or
what had precipitated it could not be established by means of an MRI
scan.
8.
A summary of relevant factual matrix is the following: The plaintiff
discovered she was pregnant with twins when she was about 2 months
along in her pregnancy. She consulted a private general practitioner
during the first 6 months of her pregnancy where after she attended
at the Zonkezizwe clinic for further ongoing care and management
of
her pregnancy. She suddenly went into pre-term labour on the morning
of 24 September 2009, at 32 weeks gestation. She was admitted
to the
labour ward after being assessed by Dr Ramodike , the attending
doctor who was on duty at the labour ward, at 13h10. She
was referred
for a c-section delivery as the twins were in a breech position. Her
pregnancy was considered high risk because she
was carrying twins.
She was 2cm dilated at that stage, with ruptured membranes, and
presented with a history of pregnancy induced
hypertension (high
blood pressure). Three other emergency c-sections were prioritized
before the plaintiff’s c-section. Only
one theatre was
available to perform emergency c-sections on the day. The plaintiff
was assessed and her condition monitored in
the labour ward at 13h10;
15h00; 15h30; 18h30. Whilst being prepared to be wheeled to theatre
at 19h20, she started bearing down
(pushing). The leading baby was
starting to show an appearance. Within minutes, the twins were
thereupon delivered naturally by
way of vaginal birth inside the
labour ward. The first twin (baby Boy) was born at 1925 by way of
breech delivery whilst baby R
was born ten minutes later, at 19H35,
by way of vertex delivery. The babies were taken to the nursery
section inside the labour
ward after birth where they were attended
to by a midwife and their condition stabilised. The babies were
thereafter assessed by
an intern paediatrician (Dr Oakbay) inside the
labour ward. He diagnosed them as having moderate respiratory
distress and decided
to transfer them to the neonatal ward (ward 2)
for ongoing monitoring and care. According to the hospital records,
baby R was transported
in a cold incubator without oxygen to ward 2.
Baby R’s condition deteriorated after her birth to the point
where she had
to be vigorously resuscitated by the attending
paediatrician (DR Mpoyi) in ward 2. The resuscitation was successful,
where after
she was admitted to ICU where she remained until
discharge from hospital. It is common cause that she was diagnosed
with cerebral
palsy, having suffered an irreversible brain injury due
to a profound hypoxic ischemic event which occurred on 24 September
2009.
9.
The expert reports filed of record by both parties were admitted
into
evidence at the trial as well as the available hospital and medical
records on which all experts relied to formulate their
respective
opinions.
10.
Joint minutes were prepared by the parties’ appointed
gynaecologists;
paediatricians; radiologists and nursing
professionals (midwives). No significant disagreements arose between
them as regards the
brain injury sustained by baby R. The issue for
determination by the court was
when
such insult was likely to
have occurred, and whether negligence on the part of the attending
staff caused baby R to suffer the
consequences of such event.
Agreements per
experts’ joint minutes
11.
The midwives agreed,
inter
alia
, that the plaintiff pregnancy was
a high-risk pregnancy by reason of the fact that it was a twin
pregnancy. The midwife/s who cared
for the plaintiff during her
labour delivered sub-standard care in that they did not do or record
maternal and foetal observations,
as well as progress of labour in
accordance with the Maternity Guidelines (2007), both during the
latent and active phases of labour
and especially in the case of a
mother with a history of pregnancy induced hypertension and premature
labour of twins. Only one
foetal hearbeat was recorded on the CTG
(c
ardiotocograph),
and only one foetal heartbeat was recorded in the
hospital notes by the attending midwife at 15h30 and 18h30. Both
foetusses should
preferably have been monitored with a CTG during
labour as required by the Maternity Guidelines (2007). Every effort
should have
been made to ensure a safe delivery by C-section because
of the fact that the twins were premature and because, as later
transpired,
the leading twin remained in a breech position.
12.
The paediatricians agreed,
inter
alia
, that the delay in the delivery of
the twins by c-section was due to the unavailability of theatre/s.
Monitoring at the time showed
no abnormalities. Baby R was exposed to
hypoxia (cyanosis) and hypothermia during transfer (from the labour
ward to the neonatal
ward) and her condition deteriorated in the
neonatal ward, requiring resuscitation and ICU admission. Hypoxia and
hypothermia are
possible causes of the HIE (
hypoxic ischemic
event)
. These (consequences) are the result of
substandard care and negligence.
13.
The Obstetricians/Gynaecologists agreed,
inter alia
,
that the plaintiff presented late for her first ante-natal care visit
(at 28 weeks), when she was diagnosed with ‘multiple
pregnancy’, anaemia and a booking blood pressure of 140/90. She
was HIV negative at booking. She attended at the hospital
within 6
hours of her membranes rupturing. Discharge of liquor was clear and
non-offensive. On admission, she had pre-term labour
and premature
rupture of membranes and was assessed to be in the latent phase of
labour. No speculum examination was done on admission
as per
standard, but a digital vaginal examination was done that could have
increased the risk of intrauterine infection. When
the decision to
deliver her by emergency c-section was made at 13h10, the theatre was
busy with three other cases. It is the responsibility
of the
clinicians and the hospital management on duty to reprioritize the
cases or find an alternative theatre within the hospital.
Between
15h30 and 18h30, the plaintiff’s blood pressure recordings were
132/61 and 133/69 respectively, which is normal,
and her pulse was
97bpm. The plaintiff was wheeled to theatre six and a half hours
after the decision to deliver by c-section was
made. The two babies
did not show any evidence of intrauterine growth restriction or
growth discordance.
14.
The radiologists agreed,
inter
alia
, that the MRI pattern was in
keeping with a
hypoxic ischemic brain
injury
in a pre-term baby. There were
features of central (acute profound pattern) hypoxic ischemic brain
injury. The findings of the
MRI study suggested that genetic
disorders as a cause of baby R’s brain damage were unlikely.
There was no evidence of current
or previous infective or
inflammatory disease on the various MTI sequences and inflammatory or
infective conditions were unlikely
causes of the child’s brain
damage.
Evidence at trial
Plaintiff
(Mother)
15.
The plaintiff previously gave birth to
three individual children (‘singletons’) prior to falling
pregnant with twins.
The births of the singletons were uneventful and
without complication. According to the plaintiff, she had the
advantage of consulting
a private doctor (Dr Hira) during the first
six months of her twin pregnancy. She opted for private professional
care as the doctor’s
rooms were situated in close proximity to
her workplace, which made it both convenient and beneficial to for
her to attend thereat.
She had no reason to doubt that she was
receiving anything other than the best possible care from her doctor.
The plaintiff was
treated,
inter alia
,
for influenza, a persistent urinary tract infection and high blood
pressure during the time that she consulted Dr Hira. At the
six month
mark of her pregnancy, Dr Hira referred her to the Zonkezizwe clinic
for ongoing care, including sonar examination to
determine the sex of
the babies and for her to be registered to enable her to deliver the
twins at Natalspruit hospital. She attended
at the clinic on two
occasions prior to spontaneously going into premature labour. Clinic
records showed that she had slightly
raised blood pressure on one
occasion, for which she was given medication, and that both babies
presented in a breech position
upon examination.
16.
At about 6am on the morning
of 24 September 2019, her waters broke, which prompted her to go to
the hospital. Upon arrival, she
was assessed as being in the early
latent phase of pre-term labour (estimated to be approximately 32
weeks’ gestation) with
ruptured membranes, draining clear
liquor. She was then referred for admission to the labour ward.
Shortly after arriving at the
labour ward, she was further examined
by an attending doctor (Dr Ramodikwe). A scan (sonar) performed on
her revealed that both
babies were in a breech position. She was
informed that the babies would have to be delivered by caesarean
section (c-section)
in theatre, however, as the theatre was then
occupied with other emergency deliveries, she was placed onto a bed
in the labour
ward for onward monitoring of the progress of her
labour. She confirmed that she was monitored at 13h10; 15h30; and
18h30 on 24
September 2019. According to the hospital records, at
15h30, she was prepared for theatre. At 18h30, she was assessed as
being
in the active phase of labour, being 5cm dilated. The plaintiff
testified that at about 19h20, whilst the doctor or nursing staff
were preparing to take her to theatre, she suddenly felt the babies
bearing down, as if she was about to give birth. She screamed
for a
doctor to come and help. The doctor saw that a baby was coming out
and within minutes, the first twin, a boy, was delivered
vaginally
inside the labour ward. He came out legs first. The plaintiff heard
him give a loud cry where after he was taken away.
The second baby, a
girl (Baby R) was delivered vaginally shortly thereafter, with a
vertex presentation. Baby R did not cry at
first, although a short
while after the midwife ‘did something to her’ she gave a
faint cry (which was less audible
than the baby boy’s cry)
before being taken away. The plaintiff was informed that the second
baby was having difficulty breathing.
She did not see the twins again
until later in the evening when she saw them being wheeled together
in a ‘small cot’
to ward 2 (neonatal ward) for further
care. According to the hospital records, the first baby boy was
delivered at 19h25. The second
baby girl (baby R) was delivered at
19h35.
17.
The following day the Plaintiff saw
baby R in the ICU with ‘alot of things’ attached to her
body. She was also on a
breathing machine. The baby boy remained in
ward 2. According to the plaintiff, she noticed immediate differences
between baby
R and her brother. The baby boy was more active, able to
suckle on his own and was breastfed by the Plaintiff, whereas baby R
had
difficulty suckling and a syringe had to be used to feed milk to
her.
18.
It is almost 12 years since the birth of the twins. Baby R was
diagnosed with
cerebral palsy within a few months after birth. She is
still unable to do anything on her own. She does not talk, has to be
fed,
uses diapers (nappies) and cannot sit or even stand unaided. Her
brother (leading baby) has also experienced mental challenges.
He
attends a special school as he has learning difficulties.
19.
During
cross-examination, the plaintiff was questioned about the incomplete
set of hospital records
[1]
that
were discovered by her at trial. She stated that she obtained the
records from Mr Mogadi, whom she believed to be working
at the
hospital. She paid him R50 for assisting her to obtain same. It was
put to the plaintiff that the hospital records had all
gone missing
from the hospital and that the only records presently available are
those which the plaintiff had herself obtained
from Mr Mogadi.
20.
She readily conceded that she only attended the clinic for the first
time when
she was 28 weeks pregnant but reiterated that she had
enjoyed the benefit of private care prior thereto. She was questioned
about
whether she was informed as to why she had been referred for
caesarean delivery. She testified that she was told that one of the
babies was not lying in the correct or proper position. She further
testified that at the time when she was being monitored in
the labour
ward by the midwife/s, they had informed her that ‘everything
was fine’ with the twins and that they (nurses)
were happy with
their heartbeat. She conceded that the birthing process went
smoothly. It was a short and uneventful process even
though one baby
had been delivered in a breech position. She felt that she was
treated properly during her labour although looking
back, she feels
that the doctors should have taken her for a caesarean procedure
earlier that day.
Proffessor
AGW Nolte
21.
Prof Nolte testified that the plaintiff presented
as a high risk pregnancy by virtue of the fact that she was carrying
multiples;
that one or both babies were breech; that the plaintiff’s
labour was premature; and that she presented with borderline
pregnancy
induced hypertension. High blood pressure (pregnancy
induced hypertension) and premature labour are known to be possible
complications
of a twin pregnancy.
22.
The
first stage of labour is the latent phase which endures until the
cervix is 4cm dilated. The active phase of labour commences
from when
the cervix is 4cm to 10 cm dilated. According to the hospital
records, the plaintiff was 5cm dilated at 18h30, by which
time she
was thus in the active phase of labour. In terms of the Maternity
Guidelines (2007),
[2]
in the
active phase, the foetal heart rate should be recorded every half
hour until birth, whereas in the latent phase it should
be recorded
four hourly in order to detect foetal compromise (if any). This was
not done in the plaintiff’s case. The hospital
records contain
a record only one foetal hearbeat (as opposed to two) and it is
unclear which foetal heartrate was monitored.
[3]
Both foetal heart rates ought to have been monitored with a
continuous CTG when the active stage of labour commenced.
23.
During the
active phase of labour the mother usually experiences more frequent
contractions during which the uterus contracts and
blood flow to the
placenta is temporarily cut off, resulting in oxygen deficiency to
the foetus. For that reason, the risk of developing
foetal compromise
is much higher in the active phase of labour when the foetus is
subjected to more frequent bouts of oxygen deficiency.
If babies are
oxygen compromised, they may not recover sufficiently between
contractions. It is thus necessary to assess the foetal
heart rate
more frequently in the active phase in order to be able to detect
foetal compromise. A foetal heart rate of more than
160 beats per
minute is an indicator of tacocardia, whilst a foetal heart rate of
less than 110 beats per minute is an indicator
of bradocardia –
both being indicators of possible foetal compromise. Both the foetal
heart rate
[4]
and the frequency
of contractions ought to be monitored to assess abnormal variability
in heart beats or abnormal decelerations
as these may provide
indicators of insufficient foetal oxygen or cord prolapse. If foetal
heart rates are not monitored properly
it would not be possible to
detect foetal distress, however, a normal foetal heart rate
assessment does not necessarily indicate
non-foetal distress or an
absence of foetal compromise.
24.
During cross-examination, Prof Nolte conceded that even if the
maternity guidelines
are not followed so that substandard care is
delivered, it does not necessarily follow that the baby will not be
born healthy.
She accepted that information was lacking in the
available medical records to sustain an inference that baby R had
suffered from
intra-partem or birth asphyxia. Stated differently, she
was unable to say whether the non-compliance with the maternity
guidelines
in the present matter resulted in baby R suffering an
injury in the intrapartum period.
25.
The hospital records reflect that steroids (known as servactin) were
administered
to the plaintiff round 15h00. Steroids are usually given
where the mother is in premature labour to aid in the development of
the
foetal lungs (or to prevent the lungs collapsing after birth) and
to enable the babies to breathe better when they are born. Two
doses
administered 12 hours apart are required for such medication to take
effect. In the plaintiff’s case, steroids were
administered
late (approximately 4 hours before birth) and there was insufficient
time for it to take effect. Any premature labour
carries the risk
that a baby’s lungs will not be fully developed at birth and
could collapse.
Dr
Mbokota (obstetrician/gynaecologist)
26.
Dr Mbokota’s oral testimony focussed largely on the fact that
the hospital
notes did not contain a record two separate foetal
heartbeats and that the twins were born in non-optimal conditions. He
testified
that the foetal heart rate of each twin baby should
ordinarily be reported. If the medical staff only record the
heartbeat of one
baby, the condition of the other twin would remain
unknown. It is unknown in the present case which twin’s heart
rate was
monitored. The fact that the foetal condition of the baby
whose heart rate was reported was good, does not mean that the other
baby was also in a good condition.
27.
The plaintiff’s membranes had ruptured before she arrived at
the hospital
and her premature labour had commenced. That, in Dr
Mbokota’s view, was sufficient to constitute an emergency. At
13h10,
the plaintiff was correctly assessed as requiring delivery by
c-section as both babies were in a breech position at that stage.
28.
If babies are born prematurely, the risk of developing respiratory
distress
is present. Therefore it would have been more ideal for them
to have been delivered in theatre, in a temperature controlled
environment,
with a paediatrician/neonatalist being present with two
midwives in attendance and resuscitation trolleys on hand. In the
absence
of a paediatrician being present at birth (as was the case
with the plaintiff), the best to do would be to administer oxygen by
mask to the new-borns; to ensure that their airways are and remain
clear; for the babies to be placed in an incubator to ensure
they are
kept warm; to intubate (if required); and to put up a drip to ensure
hydration.
29.
According to the hospital notes, the baby boy was breech at the time
of delivery
whist baby R had turned and was delivered vertex. Both
babies were suctioned after birth and despite having been given
oxygen,
exhibited moderate respiratory distress after birth. With
premature babies having underdeveloped lungs, one would anticipate an
element of respiratory distress at birth resulting in them battling
to take in sufficient air on their own.
30.
The babies were not delivered in ideal circumstances. Dr Mbokota
opined that
had a caesarean section been performed earlier in the
day, the babies would not have been exposed to increased
contractions, which
result in starving the babies of oxygen.
31.
Accepting the radiologists’ joint opinion that baby R suffered
an acute
profound hypoxic ischaemic insult, it means that there was a
sudden complete shut down of oxygen to her brain, resulting in
neurological
damage to the main part of the brain.
32.
Since there
is nothing in the hospital records to show that both foetuses were
properly monitored,
[5]
in his
opinion, the injury to baby R must have occurred within 10 to 40
minutes
prior
to birth, due to a deprivation of oxygen supply. He reasoned that
because there is nothing in the hospital records to show that
both
foetuses were properly monitored, therefore foetal distress
intra-partem could be ruled out. The baby may have suffered distress
and a hypoxic insult and thereafter recovered sufficiently to present
with APGAR scores of 8/10 at 5 and 10 minutes after birth.
33.
During cross-examination Dr Mbokota stated that the APGAR scores
(being 8/10
for both babies at 5 and 10 minutes after birth)
indicated that there was no need for vigorous resuscitation after
birth. However,
in his view, the scores do not tell one what happened
to the foetuses’ during labour. If the hypoxic event occurred
before
birth, the baby could still recover to present with Apgar
scores of 8/10 but the damage to the brain would already have
occurred
and the effect of it would continue over time.
34.
He conceded the possibility that the hypoxic event could have
occurred
after
the birth of baby R, however, he remained
adamant that because foetal compromise could not be ruled out
intra-partem, it was not
likely. He went on to explain that if both
foetuses were monitored during labour or if it were known that baby R
was in fact monitored
during labour, so that foetal distress could be
ruled out - despite which her condition deteriorated after birth -
that
would have made it more probable that the injury occurred
later.
35.
In a twin pregnancy where one or both
babies are in a breech position, it is advisable to do a caesarian
section before the process
of labour advances. There is a known risk
of foetal compromise because the babies might not be able to
withstand the stress of
labour. During contractions, the mother’s
uterus contracts – it squeezes the baby and the baby does not
receive sufficient
oxygen and blood supply. After the contraction
subsides, a baby with sufficient reserves of oxygen would recover,
but, if the event
occurs close to delivery there would be
insufficient time to recover. Therefore, to avoid known risks of
complications arising,
it would be better to deliver earlier by
caesarian section before the process of labour becomes advanced. He
therefore opined that
had the C-section been performed at the time
proposed by the attending doctor (14h00), in his view, the outcome
may have been prevented.
If the theatre at Natalspruit hospital was
occupied with other emergency cases on the day in question, the
hospital ought to have
made more theatres available. The head of the
unit in the labour ward has the responsibility of ensuring that a
request is made
for additional capacity (theatre) and there is no
indication in the hospital records that this was done.
Dr
Lefakane (paediatrician)
36.
Premature
babies often present with respiratory distress symptoms at birth and
can develop hyaline membrane disease (‘HMD’)
[6]
due to the underdevelopment of their lungs. At 32 weeks, the lungs of
a baby are still underdeveloped. The
alveoli
(the tiny air sacs in the lungs)
are
not usually open until 37 weeks maturity which is when a baby’s
respiratory system is fully developed. Pulmonary surfactant
is
produced by the lungs when they develop. If HMD is observed due to
respiratory distress at birth, whoever is performing resuscitation
can provide artificial surfactant to the baby. The hospital records
show that artificial surfactant (suvanta) was administered
to baby R
in ward 2 (neonatal ward). The hospital notes reflect that a doctor
was called when baby R was seen gasping. This indicates
that she was
having difficulty taking in air, something which occurs with
respiratory distress. She was effectively resuscitated
by means of
intubation, bagging (where oxygen is provided through a respiratory
bag), and medication in the form of adrenaline
(used to assist heart
to pump more blood to the lungs) and sevanta were administered. She
was diagnosed with bradycardia (low heart
rate) which is usually the
case with low oxygen levels or hypoxia,
[7]
and referred to ICU for further care.
37.
Labour
ward records indicate that baby R and her brother were born with
moderate respiratory distress. Baby R’s APGAR score
for
respiration remained at a score of 1/2 (one out of two) at 1, 5 and
10 minutes after birth. The fact that her overall score
was 8/10 at
10 minutes after birth does not alter the fact that she experienced
problems with respiration. After birth, both babies
were suctioned
and given oxygen by mask and per ‘head box’ (being an
incubator that provides oxygen to baby) whilst
waiting for the
paediatrician to arrive. Records from the neonatal unit (ward 2)
indicate that baby R was referred for admission
to ward 2 with a
diagnosis of ‘respiratory distress with subcostal indrawing’,
meaning that she was having difficulty
in breathing and was using
accessory muscles located between the ribs to breath. A note recorded
(with the time of 22h00 stipulated)
indicates that baby R was having
severe difficulty in breathing as she was gasping. A progress report
(with the time of 22h00 stipulated)
recorded that the babies had been
transported to the neonatal ward in an incubator without oxygen. The
condition of baby R on arrival
was noted as being ‘critically
ill and having gasping respiration. Baby [R] was cyanosed+++
[8]
and cold on touch...Baby has been resuscitated in the ward by sister
and doctor Oakbay…’.
38.
Where a baby presents with respiratory
distress, immediate treatment would be to get oxygen into the lungs
by bagging. If that does
not provide relief, then it should be
administered by means of an endotracheal tube for purposes of
supplying oxygen directly to
the lungs and bypassing any areas of
blockage that would be found in the trachea. When a baby is
‘cyanosed’ it means
the baby is blue in colour which
indicates insufficient blood supply or insufficient oxygen is
provided by the blood to the baby.
39.
The hospital notes reflect that Baby R was
exposed to hypoxia (not enough oxygen), cyanosis and hyperthermia
during the transfer
from the labour ward to the neonatal ward. The
fact that respiratory distressed babies were transported to the
neonatal ward whilst
being exposed to low temperatures without oxygen
is indicative of sub-standard care. A baby ought to be transferred to
a different
ward in a warm incubator with oxygen. If the baby shows
signs of respiratory distress during transportation, resuscitation
should
be performed by means of a mask being placed over the baby’s
nose and mouth connected to an oxygen tank carried on the incubator
with oxygen being continually provided until the baby can be fully
resuscitated by ventilator, if necessary.
40.
Baby
R was hypoxic on arrival, when regard is had to the relevant hospital
note. Furthermore, there was a known cause of the hypoxia.
The
exposure to low temperatures leading to hyperthermia (baby being cold
to touch and blue) on its own, or in combination with
HMD, likely led
to the hypoxic event. Both hypoxia and hypothermia are possible
causes of the hypoxic ischaemic event (HIE)
[9]
suffered by baby R, which in Dr Lekota’s opinion, most probably
occurred in the post-partem period, i.e., after birth. By
the time
that baby R was gasping, the damage would already have been done. At
the time when baby R suffered pulmonary arrest, treatment
was both
immediate (the attending doctor arrived timeously) and effective (she
was successfully resuscitated. Baby R’s oxygen
saturation
levels improved successfully after resuscitation and she was
transported to ICU in a reasonably stable condition.
41.
There are no hospital records to show what
bay R’s condition was or what care and treatment Baby R
received in the neonatal
ward after admission until 22h00 when the
record of her decompensation was made.
42.
Examination of baby R (who is presently 12
years old) revealed that she presents with spastic quadriplegic
cerebral palsy with myoclonic
jerks. She is unable to move her
joints. Her upper and lower limbs are stiff. She can see and hear,
but is unable to speak. She
cannot walk or stand and is dependent on
others to feed and dress her.
Dr
Ramodike (attending doctor during delivery of babies)
43.
Dr Ramodike confirmed that she was the only
doctor on duty in the labour ward at Natalspruit hospital on 24
September 2009. She
worked as a medical officer although she had not
yet qualified as a gynaecologist. The labour ward has different
sections which
are demarcated according to the level of care required
by the patient. The plaintiff was admitted in the labour ward at
12h55 and
transferred to the high care area shortly after 13h00. Five
midwives were on duty in the labour that day. There was only one
emergency
theatre available. Other theatres are usually reserved for
pre-booked elective c-sections. The labour ward was equipped with
four
CTG machines. On average, approximately 25 to 30 babies are
delivered at the hospital on any given day.
44.
Dr Ramodike examined the plaintiff at
13h10. An ultrasound performed revealed that both twin babies were
then in a breech position.
She decided to refer the plaintiff for a
c-section due to the breech presentation in order to avoid compromise
during delivery.
The plaintiff was in pre-term labour with ruptured
membranes. She advised the staff to admit the plaintiff to the high
care area
and to prepare her for a c-section at 14h00. Bloods were
taken from the plaintiff in preparation for theatre due to the risk
of
blood loss when a c-section is performed. The plaintiff also had a
history of hypertension. During her examination, she noted from
the
CTG printout that the heart rate of only one twin was recorded at 146
beats per minute, however the scan that was performed
earlier had
detected two foetal heart beats. She testified that she however had
no concerns about the condition of the foetusses
from the ultrasound
performed by her, but confirmed that she had queried as to why only
one twin was being traced with the CTG.
45.
She saw the plaintiff again at 18h30. The
plaintiff’s blood results revealed that the plaintiff’s
haemoglobin levels
were low. She ordered two units of blood for
theatre. The plaintiff was at that stage in the active phase of
labour. As no tracing
by CTG was being done at that stage, she
requested that CTG tracing be performed in respect of both foetusses.
Dr Ramodike testified
that she had no concerns about the babies or
the mother at that stage. The midwife on duty (Sr Motaung) recorded
the foetal heart
rate as ‘136-140’ which was within
normal limits. Sr Motaung passed away in 2020. Sr Motaung was
replaced by the night
shift staff (Sr Masakane) at 19h00.
46.
At approximately 19h20 Dr Ramodike was
called as the plaintiff was bearing down (pushing) when she was
supposed to go to theatre.
Dr Ramodike delivered the first twin (boy)
who was in a breech position and after his delivery she took him to
the nursery room
for post-natal management. Ten minutes later, baby R
was delivered by Sr Masakane, with Dr Ramodile being in attendance.
She had
no concerns with the condition of the babies. Their APGAR
scores were 7/10 (at 1 minute); 8/10 (at 5 minutes) and 8/10 at ten
minutes
after birth. Because they were born prematurely, she expected
them to have mild to moderate breathing problems at birth. She
assessed
their respiration efforts at a score of one out of two. This
is because breathing ability was present, without severe distress,
but because their lungs were under-developed, they could not be given
a score of two out of two as with full term babies.
47.
Sr Masakane attended to baby R after her
delivery. Sr Masekane recorded in the hospital notes that she had
suctioned her airways
and had administered oxygen by mask while
waiting for the paediatrician on duty to assess her further. Two
paediatricians were
on duty that day: Dr Oakbay (intern
paediatrician) and Dr Mpoyi (on duty in the neonatal & ICU
section). Dr Oakbay assessed
both babies in the labour ward sometime
after 20h00.
48.
The babies’ APGAR scores were
reassuring. There were no major concerns. She did not get the
impression that baby R had suffered
an acute profound hypoxic event
intra-partem. She assessed her respiratory effort as 1/2 because of
the fact that baby R was premature.
In other words, breathing effort
was present, just a bit slower, most probably because of premature
delivery and underdeveloped
lung capacity. There were no indicators
of birth asphyxia, such as the baby being ‘floppy’;
exhibiting an absent heart
rate or no respiratory effort at all. Baby
R’s colour was pale at first but it improved and was pink at 5
minutes after birth.
Baby R was also not ‘floppy’ at
birth as would have been the case had she suffered an acute profound
intra-partem hypoxic
insult; Other indicators of an intra-partem
hypoxic event are: a slow or absent heart rate, or absent respiratory
effort, or gasping,
floppy muscle tone with no activity, and pale or
blue colour (cyanosis) at birth, which was not the case with baby R.
49.
Sr Masekala’s notes indicate that
baby R was given oxygen by mask and through a head box (where the
baby is placed in an environment
that has continuous oxygen flow)
whereafter she was assessed by Dr Oakbay in the labour ward. Dr
Oakbay made the call to admit
both babies to the neonatal ward. They
were admitted to ward 2 later that evening. Dr Oakbay has since
returned to his home country
and Dr Mpoyi is no longer employed at
Natalsruit hospital. It is unknown where either of the doctors are
currently based.
50.
Dr Ramodike confirmed that there were three
other emergency deliveries that occupied the emergency theatre on the
relevant day.
Patients are prioritized for delivery depending on
their condition and need. For example, if a mother is actively
bleeding and
her life is in danger, she would be prioritized ahead of
other c-sections for emergency delivery. If the mother and baby/ies
are
assessed to be in a stable condition, they will ordinarily have
to wait their turn. As far as the plaintiff was concerned, she was
regularly monitored until she gave birth. There were no indicators
from the mother or babies that required emergency medical
intervention.
A minimum of three doctors are required to operate one
theatre, and a total of 7 people are required in theatre, being a
gynaecologist
and two assistants; paediatrician and anaethatist;
midwife; and scrub nurse. The hospital did not have sufficient
doctors on duty
that day for purposes of opening a second theatre. Dr
Ramodike herself had been on duty for a continuous period of 24 hours
that
day.
51.
The vaginal delivery of baby R and her
brother was quick, uneventful and proceeded without complication. In
her view, the fact that
the twins were not born by c-section did not
make any difference to the birth outcome. The babies were at high
risk for HMD by
reason of the fact they were premature with
under-developed lungs. From the time that the plaintiff started
bearing down, the baby
boy was born merely five minutes later and
baby R was born 10 minutes after her brother.
52.
Most premature babies are at risk for
developing HMD because of an underdeveloped respiratory system.
Although steroids were administered
to the plaintiff at 15h00 to
enhance foetal lung development, there was insufficient time for it
to take effect before delivery.
She could not stop the plaintiff’s
labour as this is contra-indicated where the patient’s
membranes have ruptured,
as in the plaintiff’s case.
53.
During cross-examination Dr Ramodike conceded that CTG tracing of
only one foetus
was wholly inadequate, more so because it is unclear
whether it was the boy or baby R whose heart rate was being
monitored. It
would have been preferable for two separate foetal
heart rates to have been documented specifically. The only record of
CTG tracing
in this case is a print-out of one page which is too
short to make ‘any sort of determination’ of the foetal
condition.
Dr Ramodike did not know whether further CTG tracing was
done and if so, whether such records went missing. She diagnosed the
plaintiff
as being hypertensive because she had presented with high
blood pressure on her first antenatal assessment at the clinic and
elevated
blood pressure a month later on admission to hospital. This
in her view was sufficient to warrant a diagnosis of hypertension.
54.
Although the foetal heart rate (as recorded) was not alarming, Dr
Ramodike conceded
that in the absence of proper management of both
foetal heart rates by means of CTG tracing (to rule out foetal
distress) she would
not have known that the plaintiff’s
pregnancy and delivery of the plaintiff’s twins was not urgent,
requiring prioritization
of the plaintiff’s c-section delivery.
She also conceded that she would not know about the foetal condition
without a CTG
tracing of both foetal heart rates.
55.
She admitted that upon examination of the plaintiff at 13h10, she had
reference
to a CTG tracing report which recorded one foetal heart
rate of 146 beats per minute, however, this was an unsatisfactory CTG
tracing.
At 15h30, the hospital records record a foetal heart rate of
136 beats per minute, however, there are no CTG tracing documents to
confirm same and no second foetal heart rate was specifically
recorded. Therefore she conceded that it would not have been known
if
the unmonitored baby was in foetal distress.
56.
Finally, in her view, if baby R was taken off oxygen, this could have
caused
her hypoxia. Cyanosis as a result of having been subjected to
cold temperatures could also have caused hypoxia.
Sister
Masakele (midwife)
57.
Sr Masekela testified that she was employed as an
advanced midwife at Natalspruit hospital on 24 September 2009. She
commenced night
duties in the labour ward at 19h00 on that date. She
is the midwife who delivered baby R. She recalled that although baby
R was
pale at birth, she was not cyanosed. After Baby R was born, Sr
Maselele suctioned her airways to remove secretions and administered
oxygen per mask. Baby R was exhibiting respiratory distress –
her sternum was depressed and she had nasal flaring, therefore
she
put baby R in a head box to receive oxygen. Baby R had low birth
weight which was likely due to low gestational age. After
attending
to baby R in the nursery, the paediatrician on call (Dr Oakbay) was
summoned. After he assessed the condition of the
babies, she (Sr
Masekela) completed the required documentation for their admission to
the neonatal ward. This took place in the
labour ward. The twins were
referred to the neonatal ward (ward 2), meaning that both were at
that stage not considered fit enough
to accompany their mother to her
word.
58.
When a CTG tracing is done, the machine produces a graph. After the
machine
has run for approximately 20 minutes, the record is printed
and placed inside the mother’s file.
59.
In this
case, an important document known as a ‘partograph’
[10]
is missing from the hospital records. It records the foetal condition
and progress of labour and reflects, amongst other things,
the foetal
hear rate/s and any decelerations pursuant to contractions, and
whether they are early or late. The CTG reading is plotted
on the
partograph by the midwife attending to the patient. The partograph is
usually located between pages 9 and 10 (it is a double
page) but this
document is missing from the discovered hospital records.
60.
She testified that the twins were put in a radiant warmer to prevent
hyperthermia
before being transferred to ward 2. After delivery, baby
R was suctioned and placed on oxygen and kept under the warmer. Aside
from nasal flaring, both babies were stable. In her experience,
premature babies are prone to suffering apneic attacks (a temporary
cessation of breathing) due to their underdeveloped lungs and lack of
surfactant. Baby R was cared for by the ward nurse whilst
Sr Masakele
attended to completion of the APGAR scores. By the time she had
completed the necessary paperwork, she observed that
both babies were
still in a stable condition. She in fact visited the babies three
times before their transfer to the neonatal
ward. Whilst she was
attending to administrative duties, the nurse enrolled in the nursery
remained with the babies and they were
therefore under constant care
from the time of their delivery.
61.
In her experience, if a baby suffers asphyxia or hypoxia in the
intrapartum
period, the baby usually comes out blue, ‘floppy’,
exhibits no effort of spontaneous breathing and no crying, thus
requiring vigorous resuscitation. Whilst baby R cried reluctantly
after birth and was a bit pale at first, she showed no signs of
birth
asphyxia. Her colour corrected itself swiftly after she was given
oxygen. Baby R received the standard form of resuscitation
after
birth. It was because mild nasal flaring was present at 5 minutes and
10 minutes after birth that her respiratory efforts
were scored at
1/2.
62.
Once the paediatrian arrived at the nursery she had nothing further
to do with
baby R or her brother. She conceded that if the babies
were transported in a cold incubator without oxygen, this would be
tantamount
to sub-standard care.
Dr
Manthata-Cruywagen (gynaecologist)
63.
The hospital records reflect that the plaintiff’s blood was
taken on booking
into the hospital. Blood results revealed that the
plaintiff was anaemic. That meant that the plaintiff’s oxygen
levels were
low because her haemoglobin was low.
64.
From the available medical records discovered in the matter, it is
not known
what caused the rupture of the plaintiff’s membranes
at 32 weeks into her pregnancy.
65.
The copy of the single page CTG tracing that was discovered in the
present case
appears to be only a section of the full CTG tracing.
Foetal heartrate 2 was not showing. The reason for that is unknown
66.
At 23 weeks gestation, the baby’s lungs are not mature or ready
to sustain
normal breathing and that is why steroids are
administered.
67.
In her opinion, baby R likely did not suffer an intrapartum acute
profound hypoxic
insult. If that had occurred, one would have
expected her to have presented as ‘flat’ and floppy at
birth with lower
APGAR scores, which was not the case. From an
obstetrics point of view, an acute hypoxic ischaemic event happens
suddenly, without
warning. Known causes of such an event are, amongst
others, cord prolapse; abruption of placenta where one would see a
retro placental
clot; and uterine rupture. In the plaintiff’s
case, there were no such markers to indicate the occurrence of an
intrapartum
insult. Even with CTG monitoring up to the time of
delivery, one could not predict that, for example, an abruption would
happen
down the line. CTG monitoring provides a useful tool, but it
is not ‘the alpha and omega’ as an indicator of foetal
distress. The CTG scan monitors what is happening presently but it
cannot predict what will happen in an hour’s time. An
acute
profound injury is not predictable – it happens suddenly. For
example, one cannot predict that a uterus will rupture.
In her view,
any premature birth carries the risk of a negative outcome as the
baby’s lungs are not mature, with the further
risk of reduced
oxygen intake. Such babies have to be put on oxygen to assist in
breathing. Any twin pregnancy itself carries a
risk of onset of
pre-term labour. In the plaintiff’s case, she had ongoing
uterine infections during her pregnancy together
with anaemia and
hypertension, as well as an over-extended uterus (which carried the
increased risk of rupturing of the membranes),
all of which
cumulatively increased the risk of onset of pre-term labour.
68.
The
plaintiff presented at the antenatal clinic late in the day for
assessment and management. In her view, the plaintiff received
inadequate antenatal care from the private general practitioner whom
she had consulted. Examples were given in evidence of what
was not
done.
[11]
In the words of Dr
Manthatha—Cruywagen, ‘you cannot have poor antenatal care
and expect a good outcome in the end –
it is like building a
house without a foundation.’
69.
In her view, the single page CTG printout forming part of the
hospital records
forms part of an incomplete strip, without the whole
strip having been included in the trial bundle. The graph itself
reflects
one foetal hart rate at 150 beats per minute. The attending
doctor (identified as Dr Ramodike) recorded the foetal heart rate as
146 beats per minute. The strip that reflected that heart rate of 146
beats per minute was not included in the discovered hospital
records.
The printed strip that is contained in the trial bundle reflects that
the CTG machine that was being used had dual channel
monitoring and
therefore it is likely that both twins were being monitored
simultaneously. It reflected a foetal heart rate of
150 beats per
minute and therefore Dr Ramodike must have picked up a foetal heart
rate of 146 beats per minute (as recorded by
her in the hospital
records) from somewhere else.
70.
The witness confirmed that various pages from the hospital records
were missing
from the Plaintiff’s trial bundle of documents.
For example, the complete maternity case book was missing from the
records
provided to court. The maternity case book would ordinarily
contain a record of the foetal heart rate/s which are usually written
down at 30 minute intervals. It is a composite exercise book which
contains a separate section for recording foetal heart rates
and
contractions. The information is further plotted on a partograph,
which forms part of that same book, however, the partograph
has not
been included in the trial bundle.
71.
In her opinion, the fact that the plaintiff delivered the twins
vaginally was
not problematic. The plaintiff was correctly referred
for a c-section delivery because the babies were premature and there
was
therefore a risk that they might not be able to withstand the
stress of labour. Whilst a vaginal delivery of a breech baby is not
advisable (depending on the position of the baby’s head) in the
case of a first time mother, in the plaintiff’s case,
she had
previously given birth to three babies and as matters stand, she was
able to deliver vaginally without difficulty. Moreover,
the babies
weighed more than 1.5 kg at birth and they would therefore likely
have been able to sustain the stress of labour.
72.
It is known that babies will experience respiratory distress as a
natural occurrence
of pre-term birth. A c-section delivery earlier in
the day would not have changed that outcome, as baby R and her
brother would
still have been born prematurely with underdeveloped
lungs. Baby R’s APGAR scores were reassuring at birth. The
scores were
within acceptable parameters and suggest that baby R had
signs of prematurity and not birth asphyxia. This is because birth
asphyxic
babies usually come out ‘flat’, which was not
the case with baby R.
73.
During cross-examination, Dr Manthata-Cruywagen agreed that
continuous foetal
heart rate monitoring is required during the active
phase of labour. It is also important to monitor contractions during
this phase
of labour and the variability of accelerations and
decelerations should be recorded in the notes. However, she pointed
out that
the notes would not necessarily contain a full record if the
heart rates, had been plotted on a partogram. She conceded during
questioning that premature birth is not a factor that in and of
itself can cause an acute profound hypoxic event. An insufficient
supply of oxygen to the brain after birth in a baby experiencing
respiratory distress can lead to such an event.
Dr
Kganane (Paediatrician)
74.
Dr Kganane testified that a full term pregnancy is
between 38 and 40 weeks. Baby R was born at 32 weeks gestation and
she was therefore
6 to 8 weeks premature. There are known possible
complications for a child who is born prematurely. These include: an
underdeveloped
brain; possibility of periods of non-breathing after
birth; risk of respiratory complications such as HMD - before birth,
a baby
uses blood coming from the placenta to breathe and not the
lungs. Surfactant is a substance that the lungs produce once they
have
matured, which helps the baby to breath after birth. Further
known complications include heart problems; anaemia (iron
deficiency);
haematological problems – premature babies are not
born with all the clotting factors; chronic lung disease; and
blindness.
A premature baby is therefore considered a fragile child.
75.
On his understanding of the hospital records, Baby R (and her twin
brother)
were admitted to the neonatal ward at 8h20 and were from
such time under the care and control of the intern paediatrician, Dr
Oakbay.
Baby R had already been diagnosed with respiratory distress
on admission to the neonatal ward. When a baby is born at 32 weeks,
he or she is at high risk of developing HMD. Notes entered at 22h00
in the hospital records reflect that baby R was in fact considered
as
having HMD. Appropriate treatment for managing a diagnosed condition
of respiratory distress and for keeping the baby stable
under such
circumstances would include: (i) keeping the baby warm with ongoing
monitoring of her temperature; (ii) administration
of oxygen with
saturation levels being monitored; and (iii) administration of fluids
via a drip. Whether this was done is unknown
as there are no records
available to show what treatment baby R received in the period
between 20h20 (assumed time of admission
to ward 2) and 22h00
(assumed time when baby R decomposed).
76.
Baby R and her brother had identical APGAR scores at 1, 5 and 10
minutes after
birth. At the 10 minute mark, they had both responded
to mild resuscitation efforts and were considered to be stable,
albeit being
diagnosed with moderate respiratory distress. Both were
born under the same circumstances in the labour ward. Yet later in
the
evening baby R regressed, whilst her brother did not. In Dr
Kganane’s experience, some premature babies respond better to
treatment than others. That is why continuous monitoring of their
progress – to see how they respond - is important after
birth.
77.
In the present case, the premature twin babies had similar birth
weight. They
came from the same uterine environment and attained the
same APGAR scores. The correct approach was to monitor them for two
to
four hours after birth to see how they were responding and to
treat them by keeping them warm; administering correct levels of
oxygen and intravenous fluids. Any transfer from one ward to the
other would have to take place under the same treatment conditions.
78.
According to the neonatal progress note completed by Sr Makhwanya
(enrolled
nurse), baby R was cyanosed ++ (meaning very blue, denoting
a lack of oxygen in her body) and cold on touch, critically ill, and
gasping upon arrival at the neonatal ward. She was admitted in that
condition. The notes do not specify whether this was
peripheral
cyanosis
(classified by bluish discoloration to hands or feet –
which is associated with cold temperatures that hampers normal blood
flow) or
central cyanosis
(bluish discolouration of the
tongue, face and core part of the body, which is associated with
inadequate oxygen i.e. baby not
taking in enough oxygen because of
either a heart or lung problem). The fact that the baby was gasping
indicates that this was
hypoxia. If it was peripheral, treatment
would require keeping the baby warm. If it was central, treatment
would include administration
of oxygen, especially where the baby was
gasping for air. Accepting what the note says, baby R was likely
experiencing a lack of
oxygen and hypothermia.
79.
Another
note appearing in the neonatal hospital records (recorded by Dr
Mpoyi) appears to have been completed at 22h00 on 24 September
2019.
It records that he was called to treat a baby who was gasping.
[12]
The note that was completed by the enrolled nurse (which also appears
to have been completed at 22h00 on the same day) refers to
baby R
having been admitted in the neonatal ward from the labour ward and
arriving in an incubator without oxygen, with the baby’s
condition described as cyanosed++, cold on touch, and baby being
critically ill with gasping respiration. The note also refers
to baby
R having been resuscitated in the ward by the attending sister and Dr
Mpoyi. Both notes appear to have been completed retrospectively
(i.e., after the event/s described in the notes). The timelines,
however, remain unclear. It is uncertain at what time the baby
was
resuscitated because it is not clear what happened at what time. In
other words, the notes are not specific as to what happened
at what
specific time in relation to the baby’s arrival, resuscitation
and stabilisation. It is unlikely that the enrolled
nurse’s
note was entered on baby R’s arrival at ward 2 if it says
22h00. It is also not possible to know what was done
between
admission and the note recorded at 22h00 in relation to the
resuscitation of baby R, as there are no available hospital
records
for that period.
80.
According to the note, on arrival Baby R was gasping and had
decompensated.
This means that with gasping for air, the baby is
breathing fast to take in air/oxygen without having the capacity to
expel or
expire carbon dioxide.
81.
During cross-examination, Dr Kganane agreed that it was not
irresponsible for
the plaintiff to have obtained prenatal care from a
private practitioner, although she believes that treatments offered
at the
ante-natal clinics are more thorough than that which a general
practitioner is ordinarily equipped to provide.
82.
In her opinion, the time at which the baby was gasping (timeframe
uncertainties
aside) was probably the moment when the acute profound
hypoxic event that led to the cerebral palsy occurred. Having been
diagnosed
with respiratory distress after birth, monitoring of baby
R’s condition for at least a period of 2 to 4 hours after birth
was vitally important. Monitoring would include observing whether
respiratory efforts are maintained at 1/2 (a score of one out
of 2)
or whether they showed either improvement or deterioration. Optimal
care should be provided by the nursing staff during this
period
(i.e., keep baby warm, administer oxygen and fluids). If there is a
deviation from the standard of care required, a negative
outcome
would be reasonably foreseeable. As baby R’s lungs were known
to be underdeveloped at birth, baby R should have been
kept warm and
on oxygen, at the very least.
83.
In her opinion, it would be reasonably foreseeable that a hypoxic
event could
occur if a baby who was probably born with HMD due to
premature birth and who was known to have respiratory distress, were
to be
deprived of oxygen.
Dr
Mogashoa (paediatric neurologist)
84.
Dr Mogashoa testified that an acute profound hypoxic ischemic brain
injury entails
an injury to the brain which occurs suddenly and where
the deep nuclei of the brain are impacted. It results from a short
intense
lack of oxygen to the brain for a short period of time
(between 7 to 15 minutes), and results in irreversible brain damage.
85.
In her
opinion, the injury sustained by baby R likely did not occur
intrapartum. Had it occurred in this period, baby R would have
been
in a depressed state at birth, requiring more vigorous resuscitation,
which was not the case with baby R. A form that was
completed for
purposes of admission of baby R to the neonatal clinic
[13]
reflects that all her primitive reflexes such as grasp, suck and moro
(where baby lifts head and drops it and arms come up) were
present,
which is indicative of brain function. Had she been hypoxic at birth,
she would likely have exhibited depressed reflexes.
The reason for
her transfer to the neonatal ward was stated to be ‘respiratory
distress with subcostal indrawing’.
That means that baby R had
difficulty in breathing and was using accessory muscles to breathe.
The time at which the paediatrician
signed this form is not recorded
on this form. According to another form that recorded baby R’s
admission to ward 2,
[14]
she
was admitted by Dr Oakbay on 24 September 2019 at 20h20. It is
unclear from the form whether baby R arrived at the neonatal
ward
(ward 2) at 20h20 or whether Dr Oakbay completed and signed the form
for her admission to ward 2 at 20h20.
86.
The hospital records also contain a note that was completed by Dr
Mpoyi. It
records that he that he was called to attend to a gasping
baby (baby R) as well as the treatment provided by him to resuscitate
her. Whilst the date and time are recorded on the form (being
‘24/09/19 22h00’) it is not known whether he wrote the
note at 22h00 (i.e., after the fact) or whether he was conveying that
he was called to assist a gasping baby at 22h00. At the time
that
baby R was gasping for air, her oxygen saturation level was at 58%.
After resuscitation, her saturation level increased to
81-85%. Baby R
was described as bradycardic, meaning that she had a low pulse rate
likely because of a lack of oxygen that led
to a hypoxic event.
Treatment consisted of intubation, bagging (manual ventilation) and
inter alia
, adrenaline and servanta (artificial surfactant)
were administered. Upon further bagging, her oxygen saturation level
improved
to 92%. This type of vigorous resuscitation would likely
have taken between 20 to 30 minutes.
87.
In her opinion, babies do not sustain gasping for air for an extended
period
of time. Gasping is a grossly abnormal occurrence. If the baby
was gasping upon physical arrival at ward 2 but only resuscitated
at
22h00, she would likely not have survived. Therefore it is more
probable that resuscitation occurred shortly after the baby
arrived
gasping.
88.
A progress
report that was completed by the enrolled nurse (Sr Makwanya)
[15]
makes reference to baby R arriving at ward 2 in a critically ill
condition, having been transported in a cold incubator without
oxygen. She was very cyanosed (denoted by the inscription ‘cyanosed
++’) and cold on touch. The baby was gasping. She
was
resuscitated in the ward by Dr Mpoyi and the attending sister, and
had also been diagnosed by Dr Oakbay with respiratory distress.
This
note appears to have been completed retrospectively (after the event)
and coincides with the time supplied by Dr Mpoyi in
his own note,
i.e., 22h00. The notes however are unclear in regard to time. It is
unclear whether the time indicated, being 22h00,
as recorded on the
note made by Dr Mpoyi and the note make by Sr Makwanya is the time
that baby R was examined or the time at which
the notes were
completed retrospectively. There are also no available notes during
the period between the arrival of baby R at
ward 2 and her
resuscitation inside ward 2. There is therefore no record of what
treatment was given or how her condition was managed.
It is known
that an acute profound hypoxic event happens suddenly.
89.
According to the hospital records, baby R had been stabilised in the
labour
ward after birth and diagnosed with respiratory distress. A
decision was made to transfer her to the neonatal ward. The correct
management of a pre-term baby in her condition would be to ensure
that the baby is transferred in a warm incubator and given oxygen.
On
arrival at the neonatal ward, the staff would assess the baby’s
vital signs and measure the baby, put the baby on a drip
to
administer fluids, keep the baby under a radiant warmer and
administer oxygen. Thereafter the baby should be closely monitored
to
see if he/she settles down with oxygen supply or if his/her condition
deteriorates. Oxygen saturation levels should be closely
monitored.
If any deterioration in respiration is noticed, the doctor should be
notified to intervene. The doctor would assess
whether the baby
requires surfactant and/or any other intervention.
90.
During cross-examination Dr Mogoshoa could not refute the evidence of
Sr Masakane
to the effect that the twins had been assessed by Dr
Oakbay in the labour ward and that the necessary paperwork relating
to baby
R’s transfer and admission to the neonatal ward had
been completed in the labour ward. That means that records wherein
the
reflexes of baby R were recorded including the reason for her
transfer to ward 2 and her weight, height, length and APGAR scores
were likely completed in the labour ward. Dr Mogoshoa stated that she
did not know, from a perusal of the available hospital records,
how
long the babies had remained in the nursery before they arrived in
ward 2. Nor could she say at what time the babies arrived
in ward 2.
Sister Makwanya’s note regarding the condition of baby R on
arrival at ward 2 and the successful resuscitation
by Dr Mpoyi in
ward 2 (which would have taken 20 to 30 minutes) means that, on an
ordinary reading of such note, and accepting
that such notes were
probably written retrospectively at 22h00, baby R’s
resuscitation would probably have commenced at 21h30
with her arrival
in ward 2 shortly before such time. This is assuming the note was
completed directly after the resuscitation ended.
91.
Further during cross-examination Dr Mogoshoa conceded that if baby R
had been
transported in a cold incubator without oxygen so that she
was gasping on arrival and in a critically ill condition at that
time,
then it means that the acute profound hypoxic ischaemic event
could have occurred during the transfer. During further questioning
on this point, she stated that the injury occurred after birth but
she could not say whether it occurred en route to ward 2 or
upon
arrival in ward 2 – it occurred sometime between the two times.
Considering that baby R had been diagnosed by Dr Oakbay
as having
respiratory distress with subcostal indrawing,
that
was reason
enough to ensure that she be kept warm with adequate oxygen supply.
92.
The hospital notes reflect that baby R was not bradycardic at birth.
She was
active and exhibited respiratory effort. According to her
APGAR score, (being 1/2 for reflexes) her reflexes were ‘down’
but not absent. There was thus no need for intensive resuscitation at
birth. In her opinion, the injury therefore did not likely
occur
before birth. At one minute after birth, Baby R had a normal heart
rate and normal muscle tone and at 5 minutes after birth,
she had a
normal colour. Had she presented with a low heart rate, absent
respiratory effort and floppy muscle tone at or shortly
after birth
(which she did not) this would more likely have signified the
occurrence of an intrapartum hypoxic event.
93.
In her opinion, there is a window period for monitoring a pre-term
baby with
respiratory distress, during which period the attending
nurses should remain alert to assess improvement or deterioration in
respiration.
Monitoring would include ensuring that the baby is
placed in the best possible environment for improvement, which would
include
warmth and oxygen supply. Transporting a pre-term baby with
respiratory distress in a cold environment, without oxygen,
constitutes
a deviation from the minimum standard of care required.
Premature babies can suddenly stop breathing because their
respiratory
systems are immature. A baby can stop breathing within 5
minutes without oxygen. That is why it is important to monitor their
breathing
so that interventions can be put into action (such as
immediate resuscitation) should they suddenly stop breathing.
94.
Dr Mogashoa testified that transporting a preterm baby who has known
respiratory
distress in a cold incubator could result in the baby
stopping to breathe because her temperature is so low so that she
develops
hyperthermia, which is a condition associated with
neurological impairments.
95.
Although Dr Mogashoa was at first reluctant to concede that
hypoxia or hypothermia were foreseeable consequences in circumstances
where a pre-term baby with known respiratory distress is exposed to a
lack of oxygen for 5 minutes or more, including cold temperatures,
she did concede that the lack of oxygen, cyanosis and hyperthermia
experienced by baby R (as documented in the hospital records)
could
have triggered the acute profound hypoxic ischaemic event that led to
the brain injury and resultant cerebral palsy.
Discussion
96.
The uncontroverted evidence was that an
incomplete set of hospital records was produced at trial. The
relevant pages that were missing
from the records, as identified
during cross-examination of various witnesses, are a matter of
record. Suffice it to say that these
included the partograph and the
section in the maternity case book where the foetal heart rates are
ordinarily recorded in more
detail, including a full and complete
print-out of the CTG tracing report (as opposed to the one page
extract therefrom as was
discovered by the plaintiff). I am not for a
moment suggesting that the plaintiff was complicit in withholding
relevant documents
from the court. On the contrary, I found her to be
a credible witness who did not seek to obfuscate the facts. I believe
her when
she said that she obtained copies of the records discovered
by her from a person whom she
bona fide
believed to be an employee at the
hospital and that she produced whatever records she had so obtained.
97.
The
courts have from time to time expressed their dissatisfaction with
the defendant’s failure to retain and produce hospital
records
at trials of this nature. More often than not, as in the present
case, no explanation is given for the disappearance of
the records or
why they were not properly preserved, as is statutorily required
[16]
of the defendant’s employees. See:
PG
on behalf of TG v The MEC for Health, Gauteng Province
(2014/6003) [2021] ZAGPJHC 351 (19 March 2021) at paras 7-10, where
the various cases are recapped. In
Khoza,
[17]
Spilg J
cautioned,
inter
alia,
that
the
failure to produce the original medical records which are under a
hospital’s control and where there is no acceptable
explanation
for its disappearance or alleged destruction cannot of its own be
used to support an argument that a plaintiff is unable
to discharge
the burden of proof because no one now knows whether the original
records would exonerate the defendant's staff from
a claim of
negligence.
98.
The
defendant sought to argue that ‘somebody intentionally
manipulated’ the hospital records by providing only selective
pages to the court.
[18]
The
argument developed to the point where the plaintiff was accused of
intentionally manipulating the hospital records by failing
to
incorporate all the relevant pages and medical notes ‘which may
not have been in the plaintiff’s favour.’
Such an
argument is not sustainable. It is devoid of primary facts to ground
it and in any event cynically ignores the duties that
are imposed on
medical staff to retain and secure the safety of hospital records, as
set out in the case law referred to above.
99.
In
AN
v MEC for Health, Eastern Cape,
[19]
the
court explained that a sudden, total, persistent interruption to the
blood supply [and hence oxygen supply] in the prepartum
period is
usually caused by a perinatal sentinel event such as placental
abruption, uterine rupture, umbilical cord prolapse, shoulder
dystocia, maternal collapse or compression of the cord (which totally
interrupts blood supply for a period long enough to cause
damage) (a
total, persistent interruption). Each of these (with the exception of
a cord compression) can be verified afterwards
because they leave a
footprint. In the present case, the evidence did not establish that
any such markers were present at birth
to denote that such sentinel
events had occurred. There was also no evidence that cord compression
had likely occurred.
100.
Prof Nolte confined her evidence to the
standard of care provided by the midwives during the plaintiff’s
labour (intrapartum
period). Dr Mbokota too confined his evidence to
the intrapartum period. Their views were based on inferences drawn by
them from
the recording of only one [normal] foetal heart rate by the
attending doctor and midwife in the available records (without
knowing
whether such recorded heart rate pertained to baby R or not)
including the absence of evidence depicting the monitoring of the
plaintiff’s contractions, more specifically, the variability of
accelerations and decelerations as well as the insufficient
CTG
tracings in the hospital records.
101.
Dr Mbokota was the lone voice amongst the
various experts that postulated that the acute profound hypoxic
ischemic insult likely
occurred intrapartum, between 30 to 40 minutes
prior to baby R’s birth. He reasoned that because there were no
records of
CTG monitoring of the plaintiff’s contractions and
both foetal heart rates (or specifically the heart rate pertaining to
baby R) during both the plaintiff’s latent and active phases of
labour, it was possible that she (baby R) may have experienced
undetected foetal distress in the active phase of labour leading to
an intrapartum hypoxic ischemic insult to her brain. He stated
that
had there been evidence of proper foetal monitoring during labour,
then only could it be said that it was possible that the
HIE may have
occurred after her birth. Such reasoning is flawed in several
respects. Firstly, it is speculative. It is based on
a postulation
that in the absence of records of foetal heart rate monitoring
according to the Maternity Guidelines (2007), foetal
distress in
utero could not be ruled out, without any primary facts having being
established to support the reasonable inference
that foetal distress
had occurred intrapartum.
102.
In
A
M and Another
,
[20]
the Supreme Court of Appeal had occasion to reiterate the role of
experts and how their evidence is to be approached. Wallis JA
put it
thus:
[17] …
The
functions of an expert witness are threefold. First, where they have
themselves observed relevant facts that evidence will be
evidence of
fact and admissible as such. Second, they provide the court with
abstract or general knowledge concerning their discipline
that is
necessary to enable the court to understand the issues arising in the
litigation. This includes evidence of the current
state of knowledge
and generally accepted practice in the field in question. Although
such evidence can only be given by an expert
qualified in the
relevant field, it remains, at the end of the day, essentially
evidence of fact on which the court will have to
make factual
findings. It is necessary to enable the court to assess the validity
of opinions that they express. Third, they give
evidence concerning
their own inferences and opinions on the issues in the case and the
grounds for drawing those inferences and
expressing those
conclusions.
[20] The need for
clarity as to the facts on which an expert’s opinion is based
has been stressed in a number of cases.
In
PriceWaterhouseCoopers
v National Potato Co-operative Ltd
the following passage from a
Canadian judgment was cited with approval:
‘
[326]
“
Before any weight can be given to
an expert’s opinion, the facts upon which the opinion is based
must be found to exist
”
[327] “
As long
as there is some admissible evidence on which the expert’s
testimony is based it cannot be ignored; but it follows
that the more
an expert relies on facts not in evidence, the weight given to his
opinion will diminish”
.
[328] An opinion based on
facts not in evidence has no value for the Court.’
[21] The
opinions of expert witnesses involve the drawing of inferences from
facts.
The inferences must be reasonably capable of being drawn
from those facts. If they are tenuous, or far-fetched, they cannot
form
the foundation for the court to make any finding of fact
.
Furthermore, in any process of reasoning the drawing of inferences
from the facts must be based on admitted or proven facts and not
matters of speculation
. As Lord Wright said in his speech in
Caswell v Powell Duffryn Associated Collieries Ltd
:
‘
Inference must be
carefully distinguished from conjecture or speculation. There can be
no inference unless there are objective facts
from which to infer the
other facts which it is sought to establish …
But if there
are no positive proved facts from which the inference can be made,
the method of inference fails and what is left is
mere speculation or
conjecture
.’” (emphasis added) (footnotes omitted)
103.
Secondly,
Dr Mbokota’s opinion as to the timing of the HIE was not
supported by peer review or scientific research, or for
that matter,
the opinions of any of the other experts who testified at the trial,
all of whom opined
[21]
(with
the exception of Prof Nolte – such an opinion essentially
falling outside the scope of her expertise) that it most
likely
occurred only after baby R’s birth, based on the primary fact
that baby R had been deprived of oxygen for a sustained
period and
was also exposed to hypothermia during her transfer to ward 2.
Thirdly, the APGAR scores of baby R after birth were
shown to be
incompatible with the inference sought to be drawn by Dr Mbokota.
104.
I am therefore constrained to concluded
that the HIE did not occur in the intrapartum period but after birth.
105.
As to the cause of such event, the
uncontroverted evidence was that baby R was diagnosed, upon
assessment by the attending
paediatrician
(Dr
Oakbay), with moderate respiratory distress after birth. She had
difficulty breathing as evidenced first by nasal flaring and
thereafter by subcostal indrawing. As she was born premature with
underdeveloped lungs, such condition was to be expected. Her
condition after birth ought to have been managed and treated by way
of keeping her warm, hydrated and on oxygen whilst being closely
monitored for a period of between two and four hours thereafter.
Monitoring of her condition was vital for purposes of assessing
improvement or any deterioration in her condition. Both
paediatricians
and other expert witnesses who were
called by the defendant were all in agreement that the deprivation of
oxygen and cold temperatures
to which baby R was exposed were capable
of precipitating the HIE and had likely precipitated the HIE. The
evidence of the factual
witnesses (Dr Ramodike and SR Masakale) was
to the effect that the transportation of baby R from the labour ward
to ward 2 would
have taken between 5 to 15 minutes, depending on the
congestion of pedestrian traffic utilizing the relevant elevator at
the time.
Ward 2 is located on a floor above the floor on which the
labour ward is situated. On the evidence of Dr Mogashoa, a
deprivation
of oxygen for a period of 5 minutes is sufficient to
cause a baby to stop breathing. How much more so with a pre-term baby
with
underdeveloped lungs who is suffering from respiratory distress
and is reliant on oxygen support?
106.
It is common cause that a combined note was made by the enrolled
nurse, Sr Makhwanya, of the
condition of baby R upon arrival at ward
2 (i.e., very cyanosed, cold on touch, gasping and critically ill)
and of her eventual
resuscitation by the paediatrician on call, Dr
Mpoyi, who found her gasping upon his arrival. It is clear from Sr
Makhwanya’s
note that she completed same after the
resuscitation process was completed, otherwise she would not have
been able to make mention
thereof in her note. Sr Makhwanya’s
note indicates that she was not the sister who had assisted Dr Mpoyi
in resuscitating
baby R. Had there been more than one resuscitation
procedure performed on baby R that night, on the probabilities, a
reference
thereto would have been included in the same note. Only one
resuscitation attempt (by Dr Mpoyi) was noted in the hospital
records.
The experts were in agreement and the evidence established
that the notes made by both Dr Mpoyi and Sr Makhwanya were completed
retrospectively at 22h00, that is, after the happening of the events
described in the respective notes. Furthermore, the uncontroverted
evidence of Sr Masakale was that the documents that were utilized for
processing baby R’s admission to ward 2 had been completed
by
her and Dr Oakbay in the labour ward. Having regard to Sr Makhwanya’s
note and the unrefuted evidence of Dr Lefakane,
Dr Kganane and Dr
Mogahoa above, it is entirely probable that baby R was resuscitated
inside ward 2 after being observed to be
in a critically ill
condition when arriving at ward 2 (as noted by Sr Makhwanya). The
evidence did not establish that baby R had
physically arrived at ward
2 at 20h20. Rather, the probabilities were that she arrived after
such time. The witnesses testified
that it was unclear whether the
time of 20h20, as recorded on the neonatal admission form (signed by
Dr Oakbay), depicted the time
that the form was completed rather than
the time that baby R actually arrived and was admitted into ward 2.
On the probabilities,
as only one resuscitation was recorded as
having been performed on baby R, such resuscitation must have
occurred later than 20h20
but before 22h00. No
precise
time in
respect of baby R’s arrival and subsequent resuscitation and
stabilisation is capable of being inferred from the
hospital records.
In any event, the evidence established that had baby R in fact
arrived at the neonatal ward at 20h20 in a state
of gasping,
exhibiting hyperthermia and a lack of oxygen supply, and had the
resuscitation only occurred at 22h00, she would likely
not have
survived. Yet the evidence established that she was successfully
resuscitated in time after the sudden deterioration in
her condition
was observed. When regard is had to the blood report forming part of
the hospital records, a blood specimen was taken
from baby R in ward
2 at 21h00. Another record, being a feeding chart, indicates that her
temperature was 35 degrees [very low]
at 21h00, with a further note
reading: ‘Feeding NPO [nil per mouth], Meconuim 5.3 MMO LL’
(meaning that she had passed
a stool). Whether her temperature and
bloods were taken before or after the resuscitation, remains unclear.
In my view, the time
at which this would have occurred does not
detract from the fact that baby R was resuscitated as a result of her
gasping for air
at a time when she was hypothermic due to a known and
established cause, being the fact that she had been deprived of
oxygen and
warmth for a sustained period, at least whilst being
transferred to ward 2.
107.
The proper approach for establishing the existence or otherwise of
negligence was formulated
by Holmes JA in
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430 E-G where the following
was said:
“
For the purposes
of liability culpa arises if—
(a) a diligens
paterfamilias in the position of the defendant—
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant failed
to take such steps.
…
Whether a
diligens paterfamilias in the position of the person concerned would
take any guarding steps at all and, if so, what steps
would be
reasonable, must always depend upon the particular circumstances of
each case. No hard and fast basis can be laid down.”
[22]
108.
In my view,
it has been shown in evidence that an injury of the type that befell
baby R, who was a respiratory distressed premature
new-born with
underdeveloped lungs, in circumstances where she had been deprived of
oxygen and had moreover been exposed to cold
temperatures and
hypothermia, was both reasonably foreseeable
[23]
and preventable and that the defendant (represented by the medical
professionals who were tasked with caring for baby R) failed
to take
reasonable steps to guard against an injury happening by ensuring
that she was conveyed in a warm incubator, supported
with oxygen
supply. It could have been prevented by adhering to the basic
treatment protocol required during the necessary ongoing
monitoring
of her condition, as testified to by the various experts, which, at
the very least required that she be kept warm and
on oxygen, even
during her transfer to ward 2.
109.
I thus find that those responsible for managing
the care and treatment of baby R after birth were negligent in not
seeing to it
that she was kept warm and supported by means of oxygen
supply after birth. It is not in dispute that the defendant is
vicariously
liable for their conduct.
110.
Did the failure to adhere to the necessary treatment protocol
cause
the HIE and resultant cerebral palsy?
111.
Dr Mbokota aside, all expert doctors who testified at trial concurred
that a deprivation of oxygen
with resultant severe cyanosis and
hypothermia could have caused the HIE and resultant brain damage to
baby R during her transfer
from the labour ward to the neonatal ward.
There can be no doubt that the deprivation of oxygen at a critical
time during which
baby R was supposed to be nursed for a diagnosed
condition (moderate respiratory distress) in accordance with a basic
treatment
protocol, fell short of the standard of care that was
required to be provided to baby R by the attending staff who were
responsible
for monitoring her condition.
112.
In
AN
v Mec for Health, Eastern Cape,
supra,
[24]
the test for causation was stated as follows:
“
The test for
factual causation is whether the act of omission of the defendant has
been proved to have caused or materially contributed
to the harm
suffered. Where the defendant has negligently breached a legal duty
and the plaintiff has suffered harm, it must still
be proved that the
breach is what caused the harm suffered.”
113.
In
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) at [25], the court observed:
“
A plaintiff is not
required to establish the causal link with certainty but only to
establish that the wrongful conduct was probably
a cause of the loss,
which calls for a sensible retrospective analysis of what would
probably have occurred, based upon the evidence
and what can be
expected to occur in the ordinary course of human affairs rather than
an exercise in metaphysics.”
114.
In
Minister
of Finance and Others v Gore NO
2007
(1) SA 111
(SCA) at [33] the SCA held:
“
Application of the
‘but-for’ test is not based on mathematics, pure science
or philosophy. It is a matter of common
sense, based on the practical
way in which the ordinary person’s mind works against the
background of everyday life experiences.”
115.
In the present case, the cause of the brain damage sustained by baby
R was an
acute profound hypoxic ischaemic insult”.
As
was explained in
AN v Mec for Health, Eastern Cape,
supra,
‘acute’ means ‘sudden’ as opposed to
developing over time. ‘Ischaemia’ is a restriction
in
blood/oxygen supply. Blood supplies oxygen to the brain. A
restriction in blood supply leads to a lack of oxygen supply.
‘Hypoxia’
results from sustained reduction in the supply
of oxygen to the brain. This is a form of neurological dysfunction.
It is plain
that the damage described in the radiologists joint
minute was caused by a sudden total sustained lack of oxygen to the
brain of
baby R.
116.
In my view, on a conspectus of the expert testimony, the plaintiff
has established that it was
the deprivation of oxygen exacerbated by
the cold temperatures to which baby R was exposed whilst being
transferred to ward 2 which
caused her to sustain the HIE injury
which ultimately resulted in the cerebral palsy from which she
suffers.
117.
I am satisfied that the plaintiff has established that the defendant
is 100% liable for any damages
sustained by her as may be proven or
agreed to as a result of the
negligence of the defendant’s employees which led directly to
the resultant injury to baby R. It is not in dispute that the
defendant is vicariously liable for their conduct.
118.
The general rule is that costs follow the result. I see no reason to
depart therefrom.
119.
In the circumstances, the following order is granted:
ORDER
1.
The defendant is liable for any damages
that are proved or agreed to be due to the plaintiff in her capacity
as parent and natural
guardian of RN;
2.
The plaintiff’s costs in respect of
the determination of the issue of liability are to be borne by the
defendant.
A.
MAIER-FRAWLEY
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
This
judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date
for
hand-down is deemed to be 10h00 on Tuesday the 28
th
September 2021.
Dates
of virtual hearing:
12-16
April 2020; & 19-23 April 2021;
& 17 June 2021.
Judgment
delivered:
28 September 2021
APPEARANCES:
Counsel
for Applicant:
Mr BD Molojoa
Attorneys
for Applicant:
Jerry
Nkeli & Associates Inc
Counsel
for respondent:
Mr DJ Joubert
SC
Attorney
for Respondent:
State Attorney (Johannesburg)
[1]
Cross-examination
revealed that various pages were missing from the records that were
discovered by the plaintiff at trial.
[2]
Prof
Nolte explained that the Maternity Guidelines provide standards of
care according to which midwives should practice, i.e.,
they contain
guidelines on how to act under certain circumstances or how a
patient is to be cared for in various conditions.
Any deviation from
the guidelines would indicate sub-standard care. If the patient is
not assessed according to the prescribed
guidelines/standards of
care, the nurse would possibly not see if complications were
developing in utero.
[3]
Prof
Nolte explained that p
er
the hospital records, at 18h30, the foetal heart rate was recorded
as ‘136-140 bpm’ (beats per minute). It is unclear
whether such record reflects the fluctuation occurring in the heart
rate of one foetus, or the discrepancy between two separate
foetal
heart rates. The notes ought to record a difference of 10 beats per
minute between two foetal heartbeats (in the case
of twins) so as to
ensure that two separate foetus’s are being monitored. In Prof
Nolte’s view, the note more likely
depicted the variation in
the heart rate of a single foetus, for if not, the individual
heartrates should have been separately
recorded in respect of foetus
1 and foetus 2.
[4]
Foetal
heart rate can be monitored by means of a CTG or stethoscope.
[5]
According
to Dr Mbokota, full foetal monitoring entails recordingords the
foetal heart rate as well as foetal heart rate variability,
including the absence or presence of decelerations pursuant to
contractions during labour, i.e., whether they are early, late
or
variable, all of which needs to be recorded.
[6]
Also
known as respiratory distress syndrome, a condition that causes
babies to need extra oxygen and help breathing. It is a common
problem seen in premature babies.
[7]
Hypoxia
:
A lower-than-normal concentration of oxygen in arterial blood (as
opposed to anoxia, a complete lack of blood oxygen). Hypoxia
will
occur with any interruption of normal respiration. See:
https://www.rxlist.com/hypoxia/definition.htm
[8]
‘
Cyanosed’
means
that the baby is blue in colour because there is not enough blood
flow and oxygen provided in the blood to the baby. ‘
Cyanosis
’
is defined as: ‘:A bluish color of the skin and the mucous
membranes due to insufficient oxygen in the blood.’
See:
https://www.medicinenet.com/cyanosis/definition.htm#:~:text=Cyanosis%3A%20A%20bluish%20color%20of,when%20exposed%20to%20extreme%20cold
[9]
Hypoxic
ischemic encephalopathy (HIE) is a type of brain dysfunction that
occurs when the brain doesn't receive enough oxygen
or blood flow
for a period of time. Hypoxic means
not
enough oxygen
;
ischemic means not enough blood flow; and encephalopathy means brain
disorder. See:
https://www.ucsfbenioffchildrens.org/conditions/neonatal-hypoxic-ischemic-encephalopathy#:~:text=Hypoxic%20ischemic%20encephalopathy%20(HIE)%20is,and%20encephalopathy%20means%20brain%20disorder
.
[10]
The
partograph
is
a graphical presentation of the progress of labour, and of foetal
and maternal condition during labour. It is the best tool
to help
one detect whether labour is progressing normally or abnormally, and
to warn attending proffessionals as soon as possible
if there are
signs of foetal distress or if the mother’s vital signs
deviate from the normal range. See
:
https://www.open.edu/openlearncreate/mod/oucontent/view.php?id=272&printable=1
[11]
Inter
alia,
scans
that ought to have been performed in the plaintiff’s first
trimester were not seemingly done; the plaintiff’s
blood
glucose levels were not checked or monitored for purposes of ruling
out gestational diabetes, given that the plaintiff
presented with a
high body mass index; the plaintiff was prescribed the same
medication for a persistent urinary tract infection
(‘UTI’)
that did not improve over a 6 month period, despite use of
anti-biotics, and such persistent UTI would have
predisposed the
plaintiff to pre-term labour.
[12]
This
note appears at CaseLines, p 04-43.
[13]
The
form is part of the available hospital records, at Caselines,
p04-31.
[14]
The
admission form is at Caselines, p 04-65.
[15]
This
is the note at Caselines, p04-67.
[16]
In
terms of
ss13
and
17
of the
National Health Act 61 of 2003
, the
records of hospitals and clinics are require to be maintained and
safely sotred and that adequate control of access thereto
be put in
place.
[17]
Khoza
v MEC for Health and Social Development, Gauteng
2015
(3) SA 266
(GJ) para 47
[18]
Evidence
was given that the hospital records are contained in an exercise
book format, which is stapled together in the middle,
with
front-to-back recorded pages. Having regard to the numbering at the
bottom of the hospital records, it was plain that pages
5 to 9, 11,
14,15 and 21 were not included in the copies that were produced at
trial.
[19]
AN
v MEC for Health, Eastern Cape
(585/2018)
[2019] ZASCA 102
(15 August 2019), para [16].
[20]
A
M and Another
v
MEC for Health, Western Cape
(1258/2018)
[2020] ZASCA 89 (31 July 2020) at paras 17 and 19-21.
[21]
On the direct evidence of the attending doctor, Dr Ramodike, there
were no abnormalities detected or recorded during the intrapartum
period. The other expert doctors, (with the exception of Dr Mbokota)
all
appear to accept the proposition that there was no evidence to
support an inference of foetal compromise in the intrapartum
period.
[22]
See
too:
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and
Another
[1999]
ZASCA 87
;
2000
(1) SA 827
at
[19]
, where the following was said:
“
It
should not be overlooked that in the ultimate analysis the true
criterion for determining negligence is whether in the particular
circumstances the conduct complained of falls short of the standard
of the reasonable person. Dividing the inquiry into various
stages,
however useful, is no more than an aid or guideline for resolving
this issue… It is probably so that there can
be no
universally applicable formula which will prove to be appropriate in
every case… [I]t has been recognised that while
the precise
or exact manner in which the harm occurs need not be foreseeable,
the general manner of its occurrence must indeed
be reasonably
foreseeable.”
And
Pitzer v Eskom
[2012]
ZASCA 44
; JOL [2012] 29007 (SCA) at [ 24] where the court
stated:
“
What
is or is not reasonably foreseeable in any particular case is a fact
bound enquiry…Where questions that fall to be
answered are
fact bound there is seldom any assistance to be had from other cases
that do not share all the same facts.”
[23]
Stated
differently,
the staff members who were tasked with caring for baby R after birth
for and monitoring her condition ought to have foreseen
the
possibility of baby R suddenly being harmed or injured through being
exposed to a total persistent deprivation of oxygen
at a critical
time when she was dependant on the aid of oxygen for the management
or improvement of her condition.
[24]
Cited
in fn 20 above, at para [4].