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[2021] ZAGPJHC 501
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M on behalf of L, a child v Member of the Executive Council for Health: Gauteng Provincial Government (A5015/2020) [2021] ZAGPJHC 501 (8 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
DATE:
8 October 2021
Case No: A5015/2020
In
the matter between:
M
on behalf of L, a
child
Appellant
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH:
GAUTENG PROVINCIAL GOVERNMENT
Respondent
CORAM:
WEINER J, MUDAU J and WILSON AJ
JUDGMENT
WILSON
AJ
:
1
At the centre of this appeal is an
eleven-year-old boy, L, who lives with profound mental and physical
disabilities. There is no
genuine dispute that these disabilities are
the result of cerebral palsy. The questions in this appeal are
whether the cerebral
palsy was caused by hypoxia shortly before L was
born, and whether that hypoxia was reasonably foreseeable and
preventable by employees
of the respondent (“the MEC”)
whose responsibility it was to oversee L’s delivery.
2
The trial court held that it had not
been established on a balance of probabilities that the MEC’s
employees had negligently
failed to prevent the hypoxic event or that
the event caused L’s condition. In this appeal, which is before
us with the leave
of the Supreme Court of Appeal, the appellant (“Ms.
M”), who is L’s mother, challenges both these
conclusions.
The
labour and the delivery
3
Ms. M was admitted to Tshwane
District Hospital at 01h45 on 18 May 2010. She was already in labour.
A cardiotograph (“CTG”)
was performed on her admission. A
CTG is a monitoring tool that provides readouts indicating the foetal
heart rate, the pace at
which the foetal heart rate is speeding up or
slowing down, and the variation of the time intervals between foetal
heartbeats.
According to the Guidelines for Maternity Care in South
Africa (2007) (“the Guidelines”) CTGs are generally only
used
during high-risk labour. The Guidelines indicate that a healthy
range for a foetal heart rate is between 110 and 160 beats per
minute, and that persistently low variability and decelerations of
the foetal heartbeat late in labour may indicate foetal distress.
4
The CTG indicated possible foetal
distress. Consistent with the Guidelines, Ms. M was given Ringer’s
Lactate, which is a fluid
replacement therapy used, amongst other
things, to treat foetal distress. On the administration of Ringer’s
Lactate, the
foetus’ condition stabilised.
5
A further CTG was performed at
06h24. It appears from the evidence that this CTG showed that the
foetus was still stable. The senior
attending midwife, Sister
Motshwene, made a note directing that the CTG should be repeated
within an hour. This does not appear
to have happened.
6
Nonetheless, at 07h30, Ms. M entered
the active phase of labour. Ms. M was seen by a doctor at 11h30, who
seemed re-assured by the
earlier positive CTG reading. At 11h30 a
Doppler reading taken by another midwife, Sister Kemp, showed the
foetal heart rate to
be “140 beats per minute, [a]udible and
clear”. The problem with the Doppler reading, though, is that
it only yielded
a single measurement of the foetal heart rate at the
time the instrument was applied. It was not accompanied by a trace of
the
foetal heart rate, information about heart rate variability or
the acceleration or declaration of the foetal heartbeat. That sort
of
information was only provided by way of the CTGs performed on Ms. M’s
admission, and later at 06h24.
7
The next CTG performed on Ms. M was
at 13h30, again by Sister Kemp. On the record of Ms. M’s labour
in the papers before us,
that CTG apparently disclosed a foetal heart
rate of 60 beats per minute, with “slight decelerations”.
The reference
to a foetal heart rate of just 60 beats per minute is
likely to have been an error, but Sister Kemp was concerned enough at
this
stage to make a note that the CTG reading should be reported to
Sister Motshwene.
8
That, too, did not happen. In her
evidence at trial Sister Motshwene said that Sister Kemp did not
report the CTG to her, and that
if Sister Kemp had done so, Sister
Motshwene would immediately have taken action, by turning Ms. M on
her side, administering oxygen,
and organising a Caesarean section.
9
None of those steps was immediately
taken, and by 14h30, there was no doubt that the foetus was, once
again, in distress. At that
point a Caesarean section was ordered,
and Ms. M was taken into theatre. L was nonetheless born naturally at
15h10. It was clear
at birth that L was severely hypoxic. His
one-minute APGAR score was just 1. The APGAR scale measures a
new-born child’s
condition at 1 and 5 minutes after birth by
reference to the child’s physical activity, heart rate,
“grimace”
(or response to stimuli), appearance, and rate
of respiration. A score of 1 (out of a possible 10) on the APGAR
scale indicates
a baby in real difficulty. At birth, L was blue and
floppy, but this later improved with respiratory assistance and
intubation.
10
Although L’s condition
gradually stabilised, he continued to suffer periods of respiratory
collapse, and remained on a paediatric
high-care ward for a
considerable period.
11
A Magnetic Resonance Imaging (MRI)
scan later revealed that L had suffered an acute hypoxic ischaemic
injury to his putamen. The
putamen sits close to the centre of the
brain, beneath the cerebral cortex and in front of the thalamus. It
plays a role in speech
and motor control. An ischaemic injury is
simply an injury that results from low blood flow and concomitantly
lower levels of oxygen
reaching the relevant tissues. This is
accompanied by the build-up of cellular waste in those tissues, and
resultant cell death.
12
All these facts are common cause.
The contested factual issues in this case relate to when L sustained
his brain injury, what caused
it and what its consequences were. But
even here, there are large areas of agreement between the parties’
respective experts
in their joint expert minutes, compiled after an
examination of the available medical records.
The
expert witnesses
13
The parties’ experts made
frequent reference the Guidelines, which set out a clear protocol for
the care of a pregnant woman
during labour. That protocol has the
following elements –
13.1
Her vital signs, including her blood
pressure, pulse, temperature and urine output, will be monitored and
recorded every two hours.
13.2
There will be a vaginal examination hourly
after her cervix has reached six centimetres dilation.
13.3
The foetal heart rate will be monitored
half-hourly before, during and after contractions.
13.4
Once the cervix is fully dilated, the
foetal heartrate must be monitored every five minutes.
14
The purpose of the protocol set out
in the Guidelines is to detect any abnormalities in the mother’s
condition, or in the
condition of the foetus. Close monitoring allows
medical practitioners to intervene promptly to deliver the baby if
necessary.
It gives those practitioners a sense of whether the baby
is coping with labour, or is in distress during contractions. The
Guidelines
provide a context within which to assess the experts’
interpretations of the facts underlying this case.
15
The parties’ expert
radiologists agreed that the MRI showed that L’s brain injury
was as I have described it above.
They also agreed that the injury
occurred at or around L’s birth, and that the MRI did not
suggest any other injury or abnormality
in L’s brain, such as
infection, congenital abnormality, a metabolic disorder, an
inflammatory disorder or a haemorrhage.
16
The parties’ obstetric experts
agreed that, although there were some heart rate decelerations on the
first CTG taken on Ms.
M’s admission to hospital, the foetus
was likely overall in a good condition at that stage. This was
indicated by the foetus’
positive response to Ringer’s
Lactate being administered. They also agreed that CTG monitoring
ought to have been performed
throughout labour, ideally continuously,
or at least once every two hours. They disagree about exactly when
the foetus’ condition
started to deteriorate. Dr Murray,
retained by Ms. M, stated that the foetal condition became
“pathological” at 06h24.
Dr Archer, retained by the MEC,
said that the
foetal condition became “pathological”
at 14h30,
just forty minutes before L was born.
17
It is not clear what the experts
mean by a “pathological” condition, but their
disagreement was later explored and illuminated
in evidence. Dr
Archer conceded in cross-examination that there must have been a
deterioration in the foetus’ condition between
about 07h10 and
12h40, but maintained that, because the foetal heart rate variability
remained good, there was “no foetal
acidosis and no brain
damage at that point”. This may be true enough, but the
question is whether there was a prior deterioration
in the foetal
condition that rendered L’s brain injury foreseeable, and
whether steps could have been taken to avoid that
deterioration
leading to the injury.
18
To answer that question, Dr Archer’s
evidence – which is based on a review of the medical records
made available after
the fact – must be evaluated in light of
Sister Motshwene’s direct evidence of what happened on the day,
and what she
would have done had the 13h30 CTG been brought to her
attention.
Sister Motshwene said that she would immediately
have taken action, by turning Ms. M on her side, administering
oxygen, and organising
a Caesarean section. Despite his disagreement
with Dr Murray on when the foetus’ condition became
“pathological”,
Dr Archer’s evidence corroborates
the view that there was something to be concerned about at the time
Sister Kemp made her
note to report the decelerations evident on the
13h30 CTG.
19
The parties’ paediatric
neurologists agreed that L suffers from cerebral palsy. Dr Pearce,
retained by Ms. M, stated that
the cerebral palsy most likely
resulted from “intrapartum hypoxia” – in other
words that the cerebral palsy resulted
from a hypoxic brain injury of
the type diagnosed by the expert radiologists. However, Dr Rademeyer,
retained by the MEC, stated
that, in his view, the MRI findings were
“not in keeping with peripartum hypoxia”. Dr Rademeyer
nonetheless chose to
defer to the parties’ expert radiologists
on that point. As I have already pointed out, the parties’
radiologists agreed
that the MRI demonstrated that L had suffered a
hypoxic brain injury at around the time of his birth – which is
what “peripartum”
means. Dr Rademeyer’s
reservations notwithstanding, therefore, the binding expert agreement
about what the MRI meant was
that recorded between the radiologists.
20
It has long been accepted that a
fact agreed in a joint expert minute is a fact of which no evidence
need be tendered at trial.
It is considered a fact that a court can,
and must, accept as true (see
Bee v Road
Accident Fund
2018 (4) SA 366
(SCA)
(“
Bee
”),
paragraphs 64 to 66 and
Thomas v BD
Sarens (Pty) Ltd
[2012] ZAGPJHC 161
(“
Thomas
”),
paragraph 9).
21
It follows from this, and from the
common cause facts and portions of the joint expert minutes that I
have summarised above, that
the trial court would ordinarily have
been bound to accept that Ms. M’s foetal condition on admission
to hospital was good,
but that the first CTG gave cause for concern;
that continuous CTG – or at least two hourly – monitoring
ought to have
been implemented, but was not; that the foetal
condition deteriorated further at 13h30, to the extent that the
senior midwife on
duty would have taken immediate action had she been
told about it; that the situation deteriorated rapidly after 14h30;
that L
was born severely hypoxic; and that L’s cerebral palsy
probably resulted from a brain injury that occurred during labour.
22
However, the case before the trial
court was unusual, in that, on the eve of the trial, the MEC retained
a new expert, who took
issue with almost every material agreement
that the parties’ other experts had reached.
23
That new expert was Professor Izelle
Smuts, at the time an Associate Professor in Paediatric Neurology at
the University of Pretoria,
practicing at the Steve Biko Academic
Hospital. Her medico-legal report, dated 2 September 2017, seeks to
cast doubt on many of
the conclusions reached by the other experts in
the case. The report emphasised the absence from L’s case of
what Professor
Smuts regarded as otherwise typical features of
cerebral palsy caused by a hypoxic peripartum injury. She concluded
that “there
is no correlation between the clinical degree the
patient is affected and the MRI findings. It
cannot
be dogmatically concluded that hypoxia due to poor perinatal care is
the cause of this child[’s] disability” (emphasis
in
original).
24
On the basis of Professor Smuts’
report, the parties filed a new joint expert minute. This minute,
dated 13 September 2017,
was compiled by Dr Pearce, Dr Rademeyer and
Professor Smuts. It purported to replace “all previous joint
minutes”.
In this minute, Dr Pearce’s views remained
unaltered, but Dr Rademeyer resiled from some of the agreements
reached in the
previous minute. For example, despite previously
having agreed that his examination of L was “in keeping with”
the
MRI results, Dr Rademeyer changed his position in the 13
September minute, for reasons that are not clear from the minute
itself.
Because he was not called to give evidence at trial, we do
not know what caused Dr Rademeyer’s change of heart on this,
and
on some other critical issues.
25
In the new expert minute, Professor
Smuts recorded a third set of views. She ranged widely over the facts
of the case, often expressing
opinions that appeared to be well
beyond her expert ken. On the interpretation of the MRI, for example,
Professor Smuts expressed
the view that “the MRI findings are
very mild. Other radiological features [typically] associated with
[L’s injury]
are absent”. Professor Smuts then quoted
academic literature at length, apparently drawing the conclusion that
the MRI was
inconsistent with the diagnosis of cerebral palsy. In
their earlier joint minute, however, Dr Rademeyer and Dr Pearce had
agreed
that cerebral palsy was the probable diagnosis, with Dr
Rademeyer merely deferring to the expert radiologists on whether the
MRI
supported this. It appears, however, that Professor Smuts felt
that no such deference was warranted, even though she did not purport
to qualify herself as a radiologist.
26
In this and other respects,
Professor Smuts took issue not just with Dr Pearce’s
assessments, but also with those made at
the behest of the MEC by Dr
Rademeyer. For example, even in the 13 September 2017 minute, Dr
Rademeyer and Dr Pearce agreed that
L had suffered the early onset of
neonatal encephalopathy (essentially that L’s brain was injured
at or soon after birth).
Professor Smuts demurred. She registered her
disagreement with this proposition, commenting, somewhat airily, that
“[i]t
is very difficult to determine the degree” of the
brain injury.
27
Fundamentally, rather than advance a
competing explanation for L’s condition, Professor Smuts sought
to cast doubt on the
probabilities that had been established by the
expert agreements previously reached. Her argument appeared to be
that to attribute
L’s condition to cerebral palsy caused by
hypoxic brain injury during labour was “dogmatic” and
that there were
too many unknowns to reach any definite conclusions.
During her evidence at trial, Professor Smuts was ultimately to
contend that
L’s condition was the result of an as yet
undiagnosed genetic defect.
The
status of Professor Smuts’ evidence
28
The introduction of Professor Smuts’
evidence in the manner and at the stage it came naturally raises the
question of whether
the trial court ought to have admitted it, and
whether, having admitted it, the trial court ought to have assigned
it any weight.
Although the trial court does not expressly isolate or
deal with the issues of the admissibility and weight of Professor
Smuts’
evidence, it is plain from its judgment that the court
both had regard to, and was impressed by, that evidence.
29
In my view, however, Professor
Smuts’ evidence should not have been admitted, because it
sought impermissibly to undo agreements
previously reached by the
parties’ experts. In the circumstances of this case, those
agreements were binding on the parties,
and on the trial court.
30
In
Bee
the Supreme Court of Appeal accepted in principle that agreements
reached between experts in joint minutes are capable of repudiation,
so long as the repudiation is clear and timeous (see paragraph 69).
In
Thomas
,
which
Bee
approved, it was held that the repudiation of an agreed expert fact
or opinion must take place before the trial commences. But
both
Bee
and
Thomas
left open the question of whether a party seeking to repudiate such
agreements could do so at will, or had to show good cause.
In
Bee
Rogers AJA, writing for the majority, did, however, remark that
“litigants should not be encouraged to repudiate agreements
for
'tactical' reasons. Whatever may have been the attitude to litigation
in former times, it is not in keeping with modern ideas
to view it as
a game. The object should be just adjudication, achieved as
efficiently and inexpensively as reasonably possible.
Private funds
and stretched judicial resources should only be expended on genuine
issues” (paragraph 67). The approach taken
to joint expert
minutes in
Bee
was recently endorsed by a unanimous Supreme Court of Appeal in
MEC
for Health and Social Development, Gauteng v MM on behalf of OM
[2021] ZASCA 128.
31
In
MEC
for Health, Eastern Cape v DL obo AL
[2021] ZASCA 68
, the court had to deal with a situation in which an
agreement had been reached in a joint expert minute, but then
evidence contrary
to that agreement had been led by another expert
during trial. This evidence appears to have been led without any
clear repudiation
of the agreement, and in those circumstances, the
appellate court held that the trial court was not entitled to have
regard to
the evidence led contrary to the expert agreement (see
paragraph 24).
32
Although the trial court in the
present case condoned the late filing of Professor Smuts’
expert notice, there is no indication
on the record that there was a
consideration of whether, and to what extent, the MEC had repudiated,
or ought to be permitted to
repudiate, the agreements in the joint
expert minutes that Professor Smuts’ evidence would by its very
nature undo.
33
It is a matter for comment that the
extent of Professor Smuts’ departure from the expert agreements
previously reached only
became clear in the joint minute of 12
September 2017 – which was produced on the seventh day of
trial. It was only really
at that stage that the MEC could reasonably
be said to have repudiated the expert agreements
.
That, of course, was too late. Both
Bee
and
Thomas
make clear that the last opportunity to repudiate previously agreed
expert minutes is the commencement of the trial.
34
The late repudiation also, in my
view, lacked the clarity required by the court in
Bee
.
It was not enough that the tripartite joint minute submitted by Dr
Pearce, Dr Rademeyer and Professor Smuts on 12 September 2017
purported to replace all previous minutes. Because Professor Smuts
herself disputed some of Dr Rademeyer’s conclusions, the
trial
court was left none the wiser about what the MEC’s new position
on the agreements previously reached was. Even accepting
in principle
that the new joint minute was a repudiation of the agreements
previously reached, the precise extent to which the
MEC sought to
repudiate those agreements could not have been clear to anyone
involved.
35
In any event, I think the time has
come to require more than clear and timeous repudiation of expert
agreements before a trial court
can disregard them. This matter is a
prime example of a case which is likely to turn on expert evidence.
In all but the most exceptional
of situations, the existence of a
large body of professional knowledge is ideally likely to lead to
agreement on a broad range
of issues relevant to the determination of
liability. It is to be expected that, as the facts considered by the
experts become
less general, and more confined to the circumstances
of a particular case, disagreements may multiply, and the court will
have
to determine where the probabilities lie. However, at the very
least, expert agreements provide a critically important way of
framing
the true issues for determination, and of providing a logical
framework within which a court can come to a sound conclusion on
facts of which it has no specialist knowledge.
36
The court in
Bee
emphasised that effective case management requires, at the very
least, that expert agreements be adhered to, unless they are clearly
and timeously repudiated. However, I think the value of expert
agreements goes much further than the facilitation of effective
case
management. Because of the role expert agreements play in framing the
ultimate issues for decision, the repudiation of those
agreements
creates substantial problems of fairness. It also begs the question
of just how far a court can be expected to accept
that the facts in
issue are truly capable of expert analysis.
37
There will no doubt be difficult
cases in which, having accepted an agreed fact as true, a party will
in good faith wish to change
tack, perhaps because of the emergence
of a series of factors or complications which were not considered by
the experts previously,
or because of new information about the
qualifications or expertise of a particular expert, or because of the
emergence of new
learning on a subject that might be particularly
relevant to the facts at hand. This is not a closed list. There may
be a variety
of other reasons for re-visiting expert agreements,
capable of motivation by one of the parties (see, for example,
Thomas
,
paragraph 11).
38
However, given the importance of
expert agreements, their repudiation should, in my view, be rare.
When necessary, it should be
motivated, on application to the trial
court, and that application should be granted on good cause shown. In
seeking to show good
cause, a party ought, at the very least, to
identify the specific agreements sought to be repudiated, and the
facts to which they
relate; to set out, clearly and succinctly, the
new facts sought to be proved; to explain why those facts are so
material to the
issues at trial that they justify the undoing of the
relevant expert agreements; and to demonstrate that the need to
introduce
those facts overcomes any prejudice caused to any other
party by setting aside the expert agreements already reached.
39
There was obviously no such
application before the trial court. The nature and extent of the
MEC’s repudiation of the previous
joint minutes was never set
out or analysed. Nor was there any indication that Professor Smuts’
evidence was so weighty and
material that its introduction, and the
re-opening of so many issues on which there had previously been
agreement, was justified.
40
In these circumstances, I am driven
to conclude that Professor Smuts’ evidence should not have been
admitted, because it constituted
a late repudiation of previously
agreed expert facts, because it was never made clear precisely which
of the expert agreements
that evidence sought to undo, and because
there is no indication on the record that there was good cause for
the introduction of
the evidence in these circumstances.
The
weight to be attached to Professor Smuts’ evidence
41
Having excluded Professor Smuts’
evidence, I feel constrained to point out that, had it been necessary
to evaluate Professor
Smuts’ evidence against the probabilities
established by the expert agreements with which it sought to
interfere, I would
have struggled to attach much weight to it. Mr. du
Plessis, who appeared for Ms. M, criticised Professor Smuts as an
unreliable
witness, who appeared to have prejudged the case on its
merits, and who was eager to testify to facts beyond her expertise.
42
I do not think it is necessary to go
as far as saying that Professor Smuts had prejudged the case as a
whole and tailored her evidence
to support that prejudgement. The
more fundamental problem with Professor Smuts’ evidence is its
fragmented and unfocussed
nature. Instead of trying to piece together
the facts to explain what happened to L – which is what all of
the other experts
in this case appear to have tried to do –
Professor Smuts sought merely to throw doubt on anything that might
have pointed
towards the conclusion that L suffered from cerebral
palsy caused by a peripartum hypoxic brain injury. Ms. Mansingh, who
appeared
for the MEC, relied heavily on Professor Smuts’
evidence to contend that “we just do not know” what
happened
to L.
43
However, as Ms. Mansingh very fairly
conceded in argument, if that is the contention that Professor Smuts’
evidence was meant
to support, it is plainly an unhelpful one. Our
duty, and the duty of the trial court, is not to “know”
anything with
any certainty. It is to establish whether, on a balance
of probabilities, the MEC’s staff wrongfully and negligently
caused
L’s injury. A conclusion drawn either way on those
issues is perfectly consistent with the proposition that there is
some
uncertainty about L’s injury – that we will never
know conclusively what caused it. Courts determine legal liability
on
facts proved to the applicable evidentiary standard. They do not
provide an infallible historical record.
44
What Professor Smuts has done is
provide a series of views that dissent, presumably on the basis of
her own scientific judgement,
from a series of agreements that had
already been reached by the parties’ respective experts, and
that widen the ambit of
whatever disagreements there were between
them. Even if that were permissible (as I have held, it is not), the
infusion of Professor
Smuts’ doubts would have done very little
to alter the probabilities established by the agreements that her
evidence sought
to disturb. In most cases, they amount to no more
than assertions of dissent. Ms. Mansingh was correct to submit that
the MEC is
not required to devise and prove a positive theory of what
“really happened” to L. But Professor Smuts’
failure
to advance such a theory affects the weight of her evidence
in circumstances where much of the rest of the expert evidence had
coalesced around the proposition that L had cerebral palsy caused by
a hypoxic brain injury. It also limits the extent to which
Professor
Smuts’ evidence can truly be said to displace the probabilities
created by the other experts’ agreements
and evidence.
45
Be that as it may, Professor Smuts’
evidence ought, in my view, to have been excluded, and the matter
decided on the agreements
reached by the remaining experts, and the
other evidence led at trial.
Approach
to the evidence
46
Once Professor Smuts’ evidence
is set aside, it becomes necessary to re-evaluate Ms. M’s claim
on the basis of the remaining
evidence, including the expert
agreements as they stood before Professor Smuts’ evidence was
introduced.
47
In doing so, it is important to
emphasise that Ms. M and Sister Motshwene were the only witnesses to
give direct evidence of Ms.
M’s labour and L’s delivery.
The MEC did not call Sister Kemp. On the issue of the extent to which
the foetus was monitored,
Ms. M’s version was not challenged.
Nor was Sister Motshwene’s.
48
In
MV
Pasquale Della Gatta
2012 (1) SA 58
(SCA), the Supreme Court of Appeal had this to say about the role of
the court in evaluating the relationship between fact and
expert
opinion –
“
The
court must first consider whether the underlying facts relied on by
the witness have been established on a prima facie basis.
If not then
the expert's opinion is worthless because it is purely hypothetical,
based on facts that cannot be demonstrated even
on a prima facie
basis. It can be disregarded. If the relevant facts are established
on a prima facie basis then the court must
consider whether the
expert's view is one that can reasonably be held on the basis of
those facts. In other words, it examines
the reasoning of the expert
and determines whether it is logical in the light of those facts and
any others that are undisputed
or cannot be disputed. If it concludes
that the opinion is one that can reasonably be held on the basis of
the facts and the chain
of reasoning of the expert the threshold will
be satisfied. This is so even though that is not the only opinion
that can reasonably
be expressed on the basis of those facts.
However, if the opinion is far-fetched and based on unproven
hypotheses then the onus
is not discharged” (paragraph 26).
49
In
Meyers
v MEC, Department of Health, Eastern Cape
(2020 (3) SA 337
(SCA), Ponnan JA, in dealing with the onus of proof
in a medical negligence case, found that, once the plaintiff had
given an acceptable
explanation for her claim –
“
[it]
was sufficient as to place an evidentiary burden upon [the doctor] to
shed some light upon the circumstances attending [the
plaintiff’s]
injury. Failure to do so meant that, on the evidence as it then
stood, he ran the risk of a finding of negligence
against him. For,
whilst [the plaintiff] bore the overall onus in the case, [the
doctor] nonetheless had a duty to adduce evidence
to combat the prima
facie case made by [the plaintiff]. It remained for him to advance an
explanatory (though not necessarily exculpatory)
account that the
injury must have been due to some unpreventable cause, even if the
exact cause be unknown” (paragraph 71).
50
An expert opinion must accordingly
be based on relevant facts disclosed by admissible evidence. A court
must ascertain whether the
opinions expressed by the experts are
logically based upon those facts. If facts do not ground an
explanation of the injury (whether
offered by experts or otherwise)
which refutes one or more of the elements of the plaintiff’s
claim, then the defendant stands
in peril of a judgment against them.
It is with these principles in mind that the facts of this matter,
and the opinions offered
by the experts on them, must be considered
and assessed.
Liability
for L’s injury
51
I now turn to consider whether, on
the facts that were properly before the trial court, Ms. M’s
claim had been established.
Counsel before us were agreed that the
central issues in that inquiry are those of negligence and causation.
Negligence
52
There was no dispute between the
parties that Ms. M’s labour was high-risk from the outset. The
CTG on admission showed decelerations
in the foetal heart rate, and
Ringer’s Lactate was applied to address these. The experts
agreed that Ms. M’s condition
required continuous monitoring,
at the very least by further CTGs every two hours. A reasonable
medical practitioner would accordingly
have been alert to the
possibility of harm to the foetus caused by an abnormal or distressed
foetal heart rate. The questions in
this case are really what steps
would reasonably have been taken to prevent that harm, when those
steps would reasonably have been
taken, and whether those steps were
in fact taken.
53
As I have already pointed out, the
Guidelines required examinations at two-hourly intervals from
admission, increasing to hourly
examinations once the cervix was six
centimetres dilated. The foetal heartrate should have been monitored
half-hourly, before,
during and after contractions. When she was
fully dilated, Ms. M should have been monitored every 30 minutes.
54
But the handwritten record of Ms.
M’s labour, and the uncontroverted evidence of Sister Motshwene
demonstrates that the standard
of Ms. M’s care fell
significantly below what the Guidelines required. Ms. M was monitored
four times over a twelve hour
period. Given that the initial CTG gave
cause for concern, Ms. M ought arguably to have been given even
closer attention than the
Guidelines prescribed. She was certainly
entitled to no less than they required.
55
The handwritten record of Ms. M’s
labour shows that the CTG done at 13h30 disclosed the recurrence of
decelerations in the
foetal heart rate. These were naturally cause
for concern. Sister Kemp made a note to report the readings to Sister
Motshwene.
56
Unfortunately, that did not happen.
Sister Motshwene’s evidence was unequivocal. She said that
Sister Kemp did not report
the re-emergence of the decelerations to
her, and that, if Sister Kemp had done so, she would immediately have
taken steps to protect
the foetus, by turning Ms. M on her side, by
administering oxygen and, to the extent necessary, by ordering an
emergency Caesarean
section.
57
Ms. Mansingh submitted that little
weight can be attached to Sister Motshwene’s evidence, because
she had no direct recollection
of Ms. M’s labour and L’s
delivery. But I do not think that is an accurate interpretation of
Sister Motshwene’s
evidence. What Sister Motshwene said was
that a review of the record of Ms. M’s labour had triggered her
recall of the day
in question. That is not the same as saying she had
no direct memory of it. Sister Motshwene had a clear, direct and
reliable recollection
of the material events. That placed her in a
fundamentally different position from all the other witnesses who
testified (with
the exception of Ms. M), who had to piece together
what happened from the available documents.
58
By 14h30, the foetus was in obvious
trouble. The decelerations of the foetal heartrate had intensified.
There was clear foetal distress.
An emergency Caesarean section was
ordered, but L was in any event delivered naturally – and
severely hypoxic – forty
minutes later.
59
In my view, the probabilities are
fairly clear. Ms. M’s labour required more careful monitoring
than was performed. In addition,
CTGs were taken erratically –
one at admission, one five hours later and then another seven hours
after that. This fell below
the standard of monitoring that the
parties’ experts agreed was necessary – a minimum of one
CTG trace every two hours,
and, ideally, continuous CTG monitoring.
Maternal and foetal heart rate monitoring are critically
important. They indicate the condition of the foetus. If they are not
reassuring,
they prompt intervention to deliver the baby.
Once
the third CTG indicated the recurrence of a problem with the foetal
heart rate that was first noted at Ms. M’s admission,
action
could and should have been taken, at around 13h30. But it was not.
60
On the probabilities, the management
of Ms. M’s labour was negligent in that inadequate monitoring
was carried out, and no
action was taken for at least an hour after
the third CTG warranted it. The bare minimum that should have been
done – a report
to the senior sister on duty for further
assessment and action – was not done. Sister Kemp did not
testify at trial to explain
this lapse.
Causation
61
The remaining question is whether,
on the probabilities, L would not have been afflicted with his
injury, but for the negligence
attributable to the MEC’s staff.
There was no dispute that, at the point of Ms. M’s admission,
the foetal condition
gave cause for concern. Initial indications of
foetal distress had been successfully treated with Ringer’s
Lactate. The first
indication of renewed foetal distress came at
13h30. That distress had deepened by 14h30, and L was born severely
hypoxic at 15h10.
The neonatologists initially briefed by the parties
(Professor Smith and Dr Murray) agreed that the injury was the result
of a
recurring hypoxic onslaught suffered during birth; that the
foetus became acidotic, with an anaerobic metabolism resulting in the
production of lactic acid and the eventual collapse of foetal oxygen
reserves. Had the foetal condition been adequately monitored,
a
“recurring hypoxic onslaught” would clearly have been
detected. The failure to monitor the foetal heartrate continuously
as
required by the Guidelines cannot be disputed.
62
The expert radiologists excluded by
agreement a range of other causes for L’s brain injury, such as
infection, congenital
abnormality, a metabolic disorder, an
inflammatory disorder or a haemorrhage. A possible genetic cause –
Sotos syndrome –
was also ruled out by agreement between the
parties’ clinical geneticists.
63
It is accordingly at least probable,
in my view, that, had the interventions that Sister Motshwene
suggested ought to have been
undertaken after the 13h30 CTG actually
been implemented, any further indications of foetal distress could
have been dealt with
timeously. This would probably have ensured that
stable condition of the foetus was maintained, either for as long as
it took for
L to be born naturally, or for a Caesarean section to be
performed.
64
I am satisfied that, on a balance of
probabilities, the failure to take the steps necessary to maintain a
healthy foetal condition
at 13h30 caused the hypoxic brain injury
that was later identified.
Wrongfulness
and harm
65
Before us, it was conceded on the
MEC’s behalf that, if there was negligence of the nature that I
have found, then that negligence
was wrongful. Insofar as the
negligence inhered in a failure to act when the MEC’s staff
should have acted, it was common
cause that there was a duty to act,
and the failure to act was unreasonable and wrongful. There was
obviously no dispute that L
has suffered harm by reason of his
disability.
Relief
66
For all these reasons, it is my
respectful view that the trial court erred when it permitted
Professor Smuts’ evidence to
be introduced in the manner and at
the stage it was. On an evaluation of the remaining evidence, it was
established, on a balance
of probabilities, that L’s cerebral
palsy was caused by the negligent and wrongful failure of the MEC’s
staff charged
with the management of Ms. M’s labour to take
steps that would have prevented L’s hypoxic brain injury.
67
In these circumstances, I would
allow the appeal with costs, including the costs of two counsel. I
would set the order of the trial
court aside, and replace it with an
order declaring that the MEC is liable for 100% of L’s proven
or agreed damages arising
from his brain injury, and making
appropriate directions as to interest and costs. I would endorse the
draft order submitted to
us by Ms. M’s legal representatives on
8 September 2021, which appears on the Caselines entry for this
appeal at pages G1
to G5.
S
D J WILSON
Acting
Judge of the High Court
WEINER
J
:
68
I agree, and it is so ordered.
S
WEINER
Judge
of the High Court
MUDAU
J
:
69
I agree.
pp
T P MUDAU
Judge
of the High Court
HEARD
ON:
6 September 2021
DECIDED
ON: 8 October
2021
For
the Appellant:
DTvR du Plessis SC
P Uys
Instructed by Wim Krynauw
Inc
For
the Respondent:
R Mansingh
(Heads of argument drawn
by P Pauw SC and R Mansingh)
Instructed by the State
Attorney