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[2021] ZAKZPHC 6
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MEC for Health for the Department of Health of KwaZulu-Natal v Davies (AR537/2019) [2021] ZAKZPHC 6 (21 January 2021)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO.: AR537/2019
MEC
FOR HEALTH FOR THE PROVINCE
OF
KWAZULU-NATAL
APPELLANT
(Defendant
in the Court
a
quo
)
and
AMANDA
DAVIES
RESPONDENT
(Plaintiff
in the court
a quo
)
Order
The
following order is made:
1.
The appeal is upheld and the order of the court
a
quo
is set aside. There is no order as to the costs of the
appeal.
2.
The
order of the court
a quo
is replaced with the
following order.
“
The
defendant is absolved from the instance. There is no order as to
costs.”
J
U D G M E N T
Delivered
:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email and
publication
on SAFLII. The date and time for hand down is deemed to
be on 21
st
January 2021.
Olsen
J (Chili J et Bezuidenhout J concurring)
[1]
This is an appeal by the MEC for Health for the Province of
KwaZulu-Natal, with
the
leave of the court
a quo
, against an order directing the
appellant to compensate the respondent, in her representative
capacity as mother and natural guardian
of a child who I shall refer
to as “KLO”, as a result of brain damage sustained by him
allegedly at or in the course
of birth. At the commencement of
the trial the issues of liability and causation were separated for
determination before
all other issues. At the trial it was
common cause that KLO is a victim of cerebral palsy. This is
another of those
sad cases where the court is charged with the duty
of determining whether the appellant’s employees were
responsible for
another manifestation of this condition.
[2]
I do not propose to traverse the pleadings. The issues manifest
at trial do
not coincide precisely with what was pleaded by the
appellant.
[3]
KLO was born on 14 May 2009 at the Wentworth Hospital, Durban.
The hospital
had an obstetric unit run exclusively by midwives.
It operated as a community health centre and was not attended by an
obstetrician.
The facility was designed and able to deal only with
so-called “low risk births”. Other cases would
generally
be referred to the King Edward VIII Hospital in Durban
where attending obstetricians were stationed, and in particular where
caesarean
section deliveries could be undertaken. If a birth at
the Wentworth Hospital was not going well a transfer to King Edward
VIII Hospital was an available option. However according to the
appellant’s evidence such a transfer takes all of two
hours or
more. In my view the explanation offered by the appellant for
that is highly questionable. Given the proximity
of the two
hospitals it seems to be unreasonable that bureaucratic and
logistical arrangements should be so poor as to turn a twenty
minute
drive into a two hour delay.
[4]
The respondent was admitted to Wentworth Hospital at about 2 o’clock
in the
morning on 14 May 2009. KLO was to be her first child.
She was examined and admitted to the labour ward. KLO was
born
at 19h10 that night.
[5]
Although a cardio tachograph device (“CTG”) was applied
to the respondent’s
midriff during the course of labour, no
readings after 16h30 were taken. The learned trial Judge
recorded the disturbing
fact that in more than one of these medical
negligence cases that have come before this division incomplete
records were produced
in respect of what may turn out to be a crucial
stage of labour. Besides the fact that inadequate record
keeping is a breach
of the obligations of a hospital, the
consequences in cases like this are, inter alia, that
(a)
expert opinion evidence becomes more speculative than is desirable;
and
(b)
back-analysis from radiological studies becomes a more prominent tool
than it perhaps should be.
[6]
Working with what was available to him the learned Judge
a quo
summarised the progress of the respondent’s labour and the
information available regarding the foetal heart beat as follows
in
paragraphs 21 and 22 of his judgment. The summary is not
disputed.
“
[21]
The maternity records that were produced in court reveal that:
(a)
when the plaintiff was admitted to the hospital at 02h00; she was
recorded to be
already
two (2) cm dilated and experiencing 'contractions moderate x 2
palpable';
(b)
at 06h00 her cervix was three (3) cm dilated and one (1) cm long;
(c)
the plaintiff's condition was reassessed by Ms Adams at 08h00. This
assessment
revealed
that she was coping with labour pains, the foetal heart rate was
between 142 to 151 bpm via the CTG, which was reactive,
and her
cervix was still three (3) cm dilated;
(d)
the plaintiff's membranes apparently ruptured at 10h30 while she was
in the shower. This was reported by the plaintiff to the
nursing
staff;
(e)
the plaintiffs labour was assessed at 12h00 on the 14
th
of.May 2009 by Ms Adams.
This
assessment revealed that she was coping with labour pains, that the
foetal heart rate was between 129 to 134 bpm, and that
her cervix was
four (4) cm dilated. It was however queried whether the
plaintiff's membranes had ruptured at 10h30 whilst
she was in the
shower;
(f)
the plaintiff's labour was again assessed at 14h00 and it was
recorded that she was not coping with labour pains, the foetal
heart
rate was 136 bpm, her cervix was five (5) cm dilated with the
presenting part being 3/5 above the pelvic brim. The plaintiff's
liquor was blood stained;
(g)
Pethidine 50 mg and Maxolon IMI were administered to the plaintiff at
14h25;
(h)
she was once more assessed by Ms Adams at 16h00 which assessment
revealed that she was coping with labour pains, but her liquor
was
blood stained. She was experiencing strong contractions. Her
management was to continue with CTG monitoring. and monitoring
of her vital signs and she was encouraged to mobilise;
(i)
the plaintiff's cervix was found to be fully dilated at 18h00 when it
was recorded that she was 10 cm dilated;
(j)
[KLO] was born at 19h10. He weighed 3.5 kg, had a length of 53 cm,
and had an
Apgar
score of 3/10 at one (1) minute and 5/10 at five (5) minutes. He was
provided
with
oxygen via nasal prongs and naloxone to reverse the effects of the
pethidine
administered
to the plaintiff during her labour;
(k)
[KLO] suffered a seizure within the first six (6) hours of birth.
[22]
From the above records it emerges that the only record of foetal
heart rate
monitoring
during the latent phase of labour was at:
(a)
02h00, when it was 120 bpm;
(b)
06h00, when it was 130 bpm;
(c)
08h00, when it was 142 - 151 bpm;
The
only record of foetal heart rate monitoring during the active phase
of labour was at:
(a)
12h00, when it was 129 -134 bpm;
(b)
13h00, when it was 129 bpm;
(c)
14h00, when it was 136 bpm;
(d)
14h25 (determined by having reference to the time pethidine was
administered, as recorded on the CTG trace);
(e)
16h00, when it was recorded at 118 bpm, and a second recording
(allegedly at
16h20)
of 130 -135 bpm.”
[7]
The heads of argument delivered on behalf of the appellant raised
more issues than
were actually canvassed in argument before us.
In many respects the heads amounted to little more than an invitation
to second
guess some of the findings of the trial court. That
is not the role of an appellate court. In order to determine
whether
one of two or more conflicting opinions should be preferred,
“what is required in evaluation of experts’ evidence is
to determine whether and to what extent their opinions are founded on
logical reasoning”. See
Medi-Clinic Ltd v Vermeulen
2015
(1) SA 241
(SCA), para 5, where the learned judge continued as
follows.
“
It
is only on that basis that a court is able to determine whether one
of two conflicting opinions should be preferred. An opinion
expressed
without logical foundation can be rejected. But it must be borne in
mind that in the medical field it may not be
possible to be
definitive. Experts may legitimately hold diametrically opposed views
and be able to support them by logical reasoning.
In that event it is
not open to a court simply to express a preference for the one rather
than the other and on that basis to hold
the medical practitioner to
have been negligent.”
[8]
The following findings by the court
a quo
were either not
challenged, or where they were, the logical reasoning followed by the
learned Judge, and the logical reasoning
underlying the opinion which
supported his findings, were not challenged much beyond the
proposition that contrary views were expressed
by others. In my
view these findings must stand undisturbed.
(a)
The absence of CTG monitoring of foetal condition after about 4.30pm
constituted
substandard care. The facts that the respondent was
post-date by one week, that this was her first child, that she had
smoked
moderately during the early part of the term of her pregnancy
and had been treated for syphilis were collectively risk factors
which had the potential to render KLO more vulnerable to injury than
would otherwise have been the case.
(b)
The latent first stage of labour extended from the respondent’s
admission at 2 o’clock in the morning when she was already
experiencing contractions and was 2cm dilated, until at the latest
midday. The foetal heart rate should have been monitored two hourly
during that period, but there is no record either at 4am or
10am.
This phase of labour exceeded the eight hour period which, according
to the appellant’s guidelines, required
the mother’s
admission to hospital.
(c)
The active phase extended for 6 hours from 12 noon, and monitoring
during
this period ought to have taken place at half hour intervals.
However there were no regular half hourly records of the foetal
heart
rate.
(d)
The aforegoing required a referral to hospital with full obstetric
facilities.
It was negligent not to have done so and the
negligence was compounded by the lack of proper monitoring, and later
on no monitoring,
of the foetal condition by CTG.
(e)
Whilst it was common cause that most of the CTG readings illustrate
an
unremarkable process of labour, the experts were in dispute
concerning the significance of some decelerations apparent on the
last
reading. But the existence of the decelerations,
particularly in the light of the respondent’s history, should
have
been evaluated by further continuous monitoring, and it was
negligent not to have undertaken it. They could not be presumed
to be innocuous.
(f)
The records of the progress of labour records that there was
“bloodstained
liquor” during the first stage of labour.
Dr McLynn, the obstetrician called by the respondent, correctly
maintained
that this was an early indication of risk. Again, it
ought not to have been ignored as innocuous given the other factors
mentioned above which pointed to risk.
(g)
Accordingly, on an overall conspectus of the evidence, if the
respondent
was not to have been initially directed to report to King
Edward VIII Hospital for the birth, she ought to have been
transferred
there from Wentworth at an earlier stage to ensure that
full obstetric facilities were available, and in particular the
facility
of a caesarean section, in need.
[9]
However the principal argument for the appellant, which was pursued
before us, raises
the question as to whether all of this is not
academic. In simple terms, the real questions, upon which the
outcome of this
appeal must turn, are what actually happened to KLO,
and what if anything could have been done by the appellant’s
employees
to prevent the catastrophic brain damage sustained by KLO
even if there had been proper monitoring of the foetal condition at a
suitable facility such as King Edward VIII Hospital.
[10]
The respondent herself was the first witness in the trial which took
place in instalments over
a period of just short of four years.
When she gave evidence KLO was five years old. Some improvement
on his initial
condition had taken place over those years. In
cross-examination some discrepancies between the respondent’s
descriptions
of KLO’s progress over those years, and the
reports of examining doctors’ were put to her, but none of them
appear
to me to be relevant to the present enquiry. It is
sufficient for present purposes to consider the condition of KLO at
the
time when the respondent gave evidence.
[11]
KLO cannot speak. He had progressed to the point where he made
sounds which the respondent
described as “baby talk”.
The respondent had detected that he could identify some sounds, and
perhaps some activities,
but there appears not to have been any sign
of cognition much beyond that.
[12]
KLO cannot walk. By the time he was five he had progressed to
the point where he was at
last able to sit unsupported. He has
to be fed. The respondent has to attend to his toilet.
[13]
Of considerable importance in this case is the fact that such
progress as KLO has made is really
on the left hand side of his
body. If a ball is rolled to him he can kick out at it with his
left leg and foot. (However
that is from a sitting position,
and he falls over if he is not supported in the sitting position when
performing an activity like
that.)
[14]
As to his right side, as the respondent put it, KLO tries his best to
ignore it completely.
If you try and put something in his right
hand he will take it away. If you play with his right hand he behaves
as though it does
not exist. His right foot will kick out in
conjunction with his left foot, but he does not “use it”
as he would
his left foot. It is clear on the record, and as
far as I can see undisputed by the various experts called in this
case,
that the material differences between KLO’s left and
right side deficiencies are the product of asymmetric injuries to
KLO’s
brain, left side damage to the brain being measurably
more prominent than the damage to the right side of the brain.
(The
left side of the brain “controls” the right side of
the body.)
[15]
Professor Lotz, a professor in radiology attached to the University
of Stellenbosch, was called
by the respondent to state and explain
his opinions following his examination of the scans of KLO’s
brain. He expressed
the opinion that the scans illustrate
hypoxic ischemic injury (“HIE”). Such injuries and
their mechanisms are
divided into two types. The one is a
product of a “prolonged partial process”; and the other
of an “acute
profound” event. Damage to the brain
in the case of an acute profound event occurs within minutes.
There is a
total (or perhaps near total) interruption of the blood,
and accordingly the oxygen supply to the brain. In the case of
the
prolonged partial process one is dealing with a diminution in the
supply of blood and oxygen. Professor Lotz described how,
when
that condition (which is more often seen in the first stage of
labour) prevails over a period of hours, an auto regulatory
system
comes into play and starts redirecting blood flow from areas of the
brain not immediately vital for the achievement of a
live birth to
the areas of the brain that are vital to the achievement of a live
birth. Professor Lotz identified the area
that is thus
partially deprived of oxygenated blood as the “watershed
area”. The diminution in the supply of
oxygenated blood
in that area of the brain results in damage identifiable by its
peculiar shape, and called “mushroom shaped
gyri”.
[16]
Professor Lotz identified certain mushroom shaped gyri in the
watershed area of KLO’s brain
as well as other profuse injuries
to the brain. The area he described as the “motor strip”,
which is according to Professor
Lotz highly susceptible to injury in
the case of an acute profound event, was, according to Professor
Lotz, “completely destroyed”
in this case.
[17]
Professor Lotz stressed more than once that the partial prolonged
process takes time. In
an effort to explain the process to a
lay court he referred to the auto regulatory system as a “salvage
team” and its
process of redirecting blood flow as “stealing
blood away”. This passage from his evidence describes the
scenario,
and one of the points that Professor Lotz made in this
passage of evidence, that the auto regulatory system is not fully
understood,
was repeated elsewhere in his evidence.
‘
Nature
has done many, many very interesting things. Nature will
protect the reptilian brain above all, it will sacrifice everything,
including the whole neocortex, the whole human brain, it will
sacrifice that in order to keep the reptilian brain going, because
if
the reptilian brain goes, life goes. For that to happen, it has
devised what we call an auto regulatory system.
It can shunt
blood from different areas. It can go and steal blood away from
the neocortex and pump it into the reptilian
brain, if necessary.
So, it goes and steals – it can shunt it a way around. We
don’t quite know how the
auto regulatory mechanism works, but
we know it can compensate for any problems that may arise. I
like to refer to this auto
regulatory system as the salvage, because
then I understand it. This is the team that comes in to salvage
the reptilian brain.
M’Lord, to set up the salvage team
takes time. So, you’ve got to phone them, they’ve
got to get their machines
out, they’ve got to get their pumps
out, so, this is something that happens over a period of time.
This is what we
often see in the first stage of labour. If this
woman or this child starts developing some kind of distress for some
or other
reason, the oxygen supply is not what it should be.
Then over a period of hours there can be a call to the salvage team
and
the salvage team will set up a system and it will create a system
by which it can start stealing blood away from other areas and
pumping it into a reptilian brain. I want to make the point,
you need hours, it’s a long issue. So, we know that
if we
see an injury pattern that has got to do with that salvage process,
that this properly happened over hours. It is a
very important
point.’
[18]
Professor Lotz came to the conclusion that KLO suffered a mixed
pattern of brain injury, that
is to say of the acute profound and
prolonged partial varieties. He also expressed the view that
the partial prolonged injury
would have been the product of an event
which preceded (or certainly commenced before) the acute profound
injury was incurred.
It is difficult to discern the reason for
this conclusion from Professor Lotz’s evidence. He
conceded under cross-examination
that as a radiologist he would be
going outside his field of expertise if he ventured an opinion as to
the precise time of injury.
When asked whether he had in
previous cases ventured an opinion as to timing of injury he said
that he did not think he had.
He continued
‘
I
have said in the past and we all know that, that the most likely time
for a prolonged partial injury to happen is in the first
stage of
labour. The most likely time for an acute profound injury to
happen is in the beginning or in the course of the
second stage of
labour. Just from the natural process those are the times that
are the real critical times. But I am
not in a position to say
I am excluding this and excluding that. That’s not my
field of expertise, I am not an obstetrician.’
[19]
Two matters ought to be mentioned in the light of the aforegoing,
before turning to the appellant’s
case concerning the cause of
KLO’s condition.
(a)
The second stage of the respondent’s labour started at 6:00pm
and
KLO was born at 7:10pm.
(b)
The CTG is the principle instrument of warning concerning the onset
of
a partial restriction on blood and oxygen supply, which is
reflected in the behaviour of the foetal heart. Besides the two
relatively
unremarkable decelerations measured on the last occasion
the CTG was used at about 4:30pm, the significance of which in my
view
was not proved by the respondent, the CTG readings during the
first stage of labour that we have do not signify the onset of a
partial restriction of the blood and oxygen supply up to that point.
Only one and a half hours remained of the first stage
of labour
during which the CTG was not applied.
(c)
There is no evidence in the account of the birth and in the available
medical records of a sentinel event or condition which might account
for the occurrence of an acute profound injury to KLO’s
brain
during the second stage of labour..
[20]
A doctor Deneys Reitz was the specialist radiologist called by the
appellant. His current
area of responsibility is clinical
radiological services in eight hospitals within the area of the
Pietermaritzburg metro and to
the west of the city. He is
responsible for running the accredited training programme in
KwaZulu-Natal for specialist radiologists.
Dr Reitz considered the
scans and was called to give his opinion on what may be deduced from
them.
[21]
Dr Reitz explained that an interruption of blood and oxygen supply to
the foetal brain which
affects the whole of the brain (which is the
case with interruptions typical of the prolonged partial process and
the acute profound
event or process) normally result in symmetrical
brain damage. In this case the brain damage is significantly
more severe
on the left side than on the right side. He
expressed the view that asymmetrical damage can occur as part of “a
spectrum
of prolonged partial hypoxic ischaemic injury, but that it
is relatively rare”. (Explaining what he meant by that, he said
that out of the approximately 80 cases of prolonged partial hypoxic
ischemic injury he had studied, only three resulted in some
asymmetric pattern of injury.) Dr Reitz’s conclusion was
that the scans as a matter of probability evidence an infarct
(in lay
terms, a stroke) which had its origin in the left carotid artery
feeding the left side of the brain which sustained the
majority of
the damage. He expressed the opinion that the scans also
evidence some hypoxic ischemic injury beyond that caused
by the
postulated stroke.
[22]
Dr Reitz also pointed out that it is not possible to judge from the
scans as to when the injuries
occurred. Indeed it was recorded
in the joint minute prepared by Professor Lotz and Dr Reitz that the
scans indicate that
hypoxic ischemic injury had occurred at some
point after approximately 36 weeks of gestation (normally in the last
four weeks before
birth) but that they cannot confirm the precise
timing, which “may have been antenatal, perinatal or
postnatal”.
Dr Reitz explained that from 36 weeks of
gestation until approximately six months of postnatal age,
pathologically the brain is
the same. It will respond in the
same way to injury. He explained:
‘
If
we look at an injury that is going to cause a typical acute profound
hypoxic ischemic injury pattern, you know, if something
happens to
the baby in the last three or four weeks of pregnancy, or if
something happens during delivery, or if something happens
post
natally, you are going to get the same pattern on the MRI image.
So completely hypothetically – I mean if we were
dealing with a
three month infant who had a near drowning incident you could have a
pattern that looks the same and the radiologist
would not be able to
tell you when that incident occurred.’
[23]
A reading of the evidence of Dr Reitz reveals quite clearly that he
was not a dogmatic witness.
He recognised and acknowledged the
limits of the learning on the subjects under discussion in this
case. This passage from
his evidence illustrates his approach
to the material that he was asked to address when finishing his
opinions.
‘
So
my view is at my level of expertise and my level of training, I am
not able to say for certain that it is HIE plus a stroke,
or just
HIE. So that is just me looking at it on my own, so I think
both possibilities are there. It is possible that this
is
asymmetrical HIE. In my view that is unlikely. It is
possible that it is HIE and a stroke, and again if that is
the case I
cannot tell you which order those events occurred in because that is
when you want a paediatric neurologist or someone
of that level of
training to come to that conclusion.’
Dr
Reitz acknowledged that he took cognisance of the fact that seven
radiologists had evaluated KLO’s condition, and delivered
reports. Despite the fact that only he and Professor Lotz (of the
seven) had been called as witnesses, Dr Reitz could not disabuse
his
mind of the fact that six out of the seven diagnosed a stroke.
[24]
Professor Lotz conceded in his evidence that he could understand why
the radiologists would come
to the conclusion on the scans taken of
KLO’s brain that the cause of the damage was a stroke.
Indeed, he appears to
have been somewhat perplexed by the case and
consulted with at least one well known international specialist in
order to determine
whether his (Professor Lotz’s) theorem was
possible given the other features of the scans which make this an
unusual (and
perhaps a highly unusual) case. When this aspect
of Professor Lotz’s evidence was put to Dr Reitz this passage
from
the record illustrates Dr Reitz’s approach to the issue.
‘
In
other words, in essence he [Professor Lotz] said at first blush it
might look like a stroke but if one looks at it he is quite
happy
that all the injury is hypoxic ischemic damage. --- Well I am not
sure why he is coming to that opinion, my opinion is that
I cannot
put my head on the block that it is one or the other. I think
what we are trying to decide here is that there are
two
possibilities; the one is that it is just hypoxic ischemic injury
which happens to be asymmetrical, the other possibility is
that it is
a stroke and hypoxic ischemic injury. And I am not prepared to
be dogmatic enough to say that I am certain it
is the one or the
other. My opinion is that it is more likely to be the second …’
[25]
Dr Reitz explained the basis upon which radiologists approach reading
scans of the type in question
here. The learning being applied
does not constitute a full understanding of the process. He
explained as follows.
‘
You
know a lot of what we know in medicine is based on observational
studies where things happen that we know have happened and
we then
look at the results. And then we go and look, well can we apply that
retrospectively and look at the results and determine
what happened.
… So the acute profound and prolonged partial are two kinds of
extremes of the spectrum based on observations
of what happens in the
classic situation of either occluding the pipe completely for five
minutes or occluding it partially for
two hours, or whatever. But
between that there is a spectrum because the body does not read the
text book, so it is not that you
have either no blood flow going to
the baby or a little bit and then it comes and goes. So that is
why, you know –
we get some cases that fit classically into the
text book description of acute profound or prolonged partial and we
get others
that are somewhere with some features of both, and this is
one of those.’
[26]
Against that background, when Professor Lotz’s position was put
to Dr Reitz, that the presence
of ulegyria either excluded or
rendered stroke less likely one sees this response from Dr Reitz.
‘
It
is always the last bits of the logic that does not quite hang
together, so you know the fact that there are ulegyria, if we assume
that there is and all the other radiologists did not notice it, but
if we assume that there is then that would be – you know
it is
accepted that ulegyria is often associated with HIE but I think to
take it to the next step where that means that nothing
else happened
I do not quite follow how the logic would get to that level. I
do not know.’
[27]
On my reading of the evidence Professor Lotz did not explain the
proposition either, which
may explain in part why Dr Reitz
responded as he did. Furthermore, in my view it should not be
overlooked that it is not
Professor Lotz’s evidence that a
partial interruption of blood and oxygen supply causes the mushroom
shaped gyrus.
On his theorem, it is the auto regulatory system
which steals away blood from the watershed area that causes the
mushroom shaped
gyrus. The question as to whether something
other than a partial obstruction of blood and oxygen flow might
engage (or perhaps
mis-engage) the auto regulatory system, and cause
it to interfere with the distribution of blood in the brain, thereby
generating
the phenomenon of a mushroom shaped gyrus, was not
explored with the radiologists.
[28]
Dr Reitz’s response when cross-examined on Professor Lotz’s
other reasons for discounting
a stroke was similar. Professor
Lotz postulated that there would have had to have been a stroke not
just in one artery, but
in two (an unlikely occurrence) as, although
the damage is asymmetrical, there is some damage to the right side of
the brain.
Asked whether Professor Lotz was wrong in that Dr
Reitz’s answer was in the politest terms that one should take
care not
to be dogmatic. He spoke of variability in arterial
supply and continued:
‘
So
my question to myself would be, yes, there are these changes in the
left middle cerebral artery distribution so now they overlap
a little
bit into other arterial distributions, is that just a bit of
anatomical variability, or is it that those other changes
are
actually anyway just part of the underlying HIE?’
[29]
The appellant called a Dr V Govender, a paediatric neurologist who
works at the KZN Children’s
Hospital and at Albert Luthuli
Hospital. The former facility is a paediatric neuro
developmental facility which only deals
with neurological problems.
He had been asked to provide an opinion on whether KLO’s
condition was caused by a perinatal
stroke or by birth asphyxia. The
conclusion of his examination was that KLO had suffered a left middle
cerebral artery obstruction
which affected predominantly the left
side of his brain, and accordingly the right side of his body.
Dr Govender reads the
MRI scan of KLO’s brain as depicting a
remarkable asymmetry, the left side being very much more affected
than the right side.
His opinion is based on two major
considerations, a clinical examination and the radiological
findings.
[30]
Dr Govender explained that if, as a result of the neonatal stroke
which he postulates, a big
part of one side of the brain is
compromised, as in this case, then the brain cannot withstand the
stresses of a normal labour
with the result that on the other side of
the brain energy reserves will be compromised because the whole brain
cannot function
normally. He concurred with an opinion
expressed by a Dr R Singh, a neonatologist called by the appellant,
that KLO’s
brain was probably abnormal when the respondent went
into labour, with the result that it could not handle the normal
stresses
of labour as would a healthy foetus. Dr Govender (like
Dr Singh) expressed the view that the seizure within the first six
hours of life (as occurred with KLO) indicates a brain already
compromised before the commencement of labour. Relying on
what
he called “clinical experience”, and some studies, in the
case of HIE seizures occur later, usually after 12 hours.
[31]
Dr Govender confirmed that in the classic picture of HIE both sides
of the brain are affected
resulting in the affliction of both sides
of the body.
[32]
In his judgment the learned Judge
a quo
summarised the further
evidence of Dr Singh and Dr Kara, a specialist paediatrician called
on behalf of the respondent. In
my view any further analysis of
the evidence of those witnesses will not advance the central question
to be decided in this appeal.
It suffices to say that Dr Kara
sought to justify his understanding of the radiological evidence as
favouring the respondent’s
case by reference to a number of
issues or circumstances which according to him favoured the
respondent’s case, whereas Dr
Singh saw things differently. It
was for the respondent to establish firstly what the cause of KLO’s
condition is; and secondly
that through negligent omission (for that
is all that it could have been in this case) the appellant’s
servants wrongfully
and negligently failed to prevent the
occurrence. The learned judge
a quo
did not find that
the hospital staff, and especially the midwives, did anything to
bring about an interruption of the blood and
oxygen supply to KLO,
and in my view there is no evidence to that effect.
[33]
Two elements of the second question can be answered at the outset .
(a)
It was not argued, and nor could it have been, that if the major and
operative
damage sustained to KLO’s brain was, as contended for
by the appellant, the product of a stroke, anything could have been
done by the attending hospital staff to prevent it.
(b)
Neither has it been argued that in the ordinary course injury of the
acute
profound type can be avoided by an active non-negligent
response by attending medical staff to the realisation that a
“sentinel
event” which gives rise to such injury has
occurred. The injury is sustained within minutes.
[34]
As I understand the case argued on behalf of the respondent, the
appellant is to be held liable
for the injury caused by the acute
profound event spoken to by Professor Lotz on the basis of his
theorem that the prolonged partial
process transformed into an acute
profound event. The argument proceeds upon the premise that the
development of a prolonged
partial condition ought to have been noted
by the medical staff who would have reacted, presumably by arranging
a caesarean section,
before injury of the acute profound type could
arise. The argument is of course that with proper monitoring a
diminished supply
of blood and oxygen would have been noted in time
to avoid injury of the partial prolonged type.
[35]
It is appropriate to deal first with the issue of the transformation
of a prolonged partial process
to an acute profound event.
Before doing so it must be noted the Professor Lotz made it clear in
his evidence that he sought
to avoid having knowledge of the progress
of labour in the particular case, and of what was done and what was
not done in the process
by the attendant practitioners, lest such
knowledge cloud his analysis of the radiological evidence to which he
speaks. Accordingly,
even to the day when he gave evidence, he had no
knowledge of these matters.
[36]
His description of the transformation from one mode of injury to
another reads as follows.
‘
You
see, the fact of the matter is the prolonged partial cannot occur if
it doesn’t occur over hours, because the auto regulatory
mechanism needs time to set itself out, so you can’t get it in
a short time. Classically what we see is if a woman
is in a
long stage of labour, she is going 10 hours, 15 hours, whatever, the
child is partially in trouble, he’s ischemic.
It is not
picked up. The situation, the pincer keeps on closing, the
situation gets worse, worse, worse. More blood
is being stolen
from the neocortex. But we’re keeping things more or less
under control. But now the problem
comes when this child who is
already in a difficult situation, now goes into the second stage of
labour. Now people find out that
there is a crisis on hand. Now
people start looking for ways of getting the child out. This is
when the acute profound
injury occurs, because now the entire system
of being able to assist, is now falling apart, because you’ve
now come over
a long period of time in which this child was
progressively injured. Now when the acute stage of the second
stage comes,
this child just simply does not have the capacity, or
the auto regulatory mechanism just as not have the capacity, to
sustain those
deep grey nuclei any further. That’s why
you see the injury on the deep grey nuclei. I mean those we
can’t
talk away, they are bilateral, they are symmetrical.’
[37]
Besides the fact that this exposition does not deal with the fact
that there is asymmetric injury,
the course of events described in
Professor Lotz’s explanation does not coincide with the medical
records. Counting
from 2 o’clock in the morning, the
first stage of labour did take quite some time. However there
was CTG monitoring
until 4:30pm. It did not indicate that KLO
was ischemic. Only one and a half hours of the first stage of
labour remained
after the last CTG reading was taken; and after that
delivery occurred within one hour and ten minutes. There is no
evidence
that there was a crisis on hand. People were not
looking for ways to get the child out. In short, in my view the
respondent’s
case lacks an adequate logical explanation for the
occurrence of the brain injury sustained by KLO, of the type which
would not
ordinarily be put down to a prolonged partial process.
Before leaving the subject of the duration of a prolonged partial
event or process, it is worth observing the answer given by Professor
Lotz to a question as to the duration of the process.
‘
Counsellor,
that is an extremely difficult question to answer, because it depends
on a number of things. If the factors that
are causing the
problem are mild, the child can probably go on for several hours,
maybe for a day or two. But if things started
slowly, but
things are getting worse as time goes by, then we are probably
talking about three hours, four hours. But we
don’t see
the pattern after hours, because the auto regulatory mechanism needs
a certain time to set up an infrastructure
to be able to shunt this
blood to the areas where it is necessary. That we don’t
know exactly how long that is.’
Again,
what Professor Lotz had in mind in explaining his view of this case
does not appear to coincide with the available medical
records.
[38]
Professor Lotz conceded more than once, and quite frankly, that but
for the phenomenon of the
mushroom shaped gyrus, he too would have
concluded from the radiological studies that KLO’s condition
was a consequence of
stroke. His evidence was to the effect
that the difficulty with the conclusion that this was stroke is that
it does not explain
the mushroom shaped gyrus. However, if
Professor Lotz and Dr Reitz agreed on anything, it is that the auto
regulatory system
is far from properly understood. It is
difficult to fault Dr Reitz’s argument that it is not logical
to reason along
the lines that because the mushroom shaped gyrus is a
product of a known partial prolonged event, the existence of that
condition
in the gyrus has to mean that there was indeed a prolonged
partial event. Nevertheless the learned judge
a quo
was
clearly correct in concluding that the mushroom shaped gyrus lends
support to the respondent’s case on the probabilities,
but I
hesitate to endorse the proposition that it is what the learned judge
called a strong probability factor.
[39]
In my view Professor Lotz’s concession that he would have
diagnosed stroke as the cause
of KLO’s condition but for the
mushroom shaped gyrus implies a concession that the diagnosis
otherwise adequately explains
the injury sustained by KLO; and in
particular explains the asymmetry evident with those injuries. The
concession also seems to
me to be somewhat inconsistent with the
contention of Professor Lotz that for the cause of the injury to be
stroke, two arteries
would have had to have become blocked, an
unlikely occurrence. It strikes me that Dr Reitz’s
observation is logical,
that what one might call a leakage of damage
may occur from one part of the brain to which blood is supplied by an
errant artery,
to another part of the brain supplied by another
artery, because the areas of blood flow within the brain are not
discreet in the
same way as the arteries themselves are.
[40]
It strikes me also that the assertion by the appellant’s
witnesses that a foetus already
afflicted with injury due to stroke
is ill equipped to deal with labour, which might result in ischemic
injury during the course
of birth, is no less logical than Professor
Lotz’s postulation that a foetus afflicted with the
consequences of a partial
prolonged event is ill equipped to deal
with the second stage of labour during which, as a result, injury of
the acute profound
variety may take place. In both cases no
evidence was given to explain the mechanism behind the assertions,
presumably because
the state of the learning on the subject has not
advanced far enough to do so.
[41]
Ordinarily it is for the plaintiff in a case such as this to prove on
a balance of probabilities
that the conduct complained of caused the
harm in respect of which compensation is sought. (See
A.M.
obo K.M. v Member of the Executive Council for Health, Eastern Cape
(699/17)
[2018] ZASCA 141
(1 October 2018) at para 65.) Here,
because the mechanisms by which the harm or injury took place were in
dispute, the respondent
had to establish on a balance of
probabilities that the mechanism was one which raised the question as
to whether, but for the
negligence of the appellant’s
employees, it would not have occurred, or could have been avoided.
The learned Judge
a quo
found that the respondent had
succeeded in establishing that the mechanism was the one contended
for by Professor Lotz. For
the reasons already discussed above,
I am in respectful disagreement with that conclusion. In my
view the learned Judge
a quo
in particular lent too little
weight to
(a)
Dr Reitz’s criticism of Professor Lotz’s mode of
reasoning;
and
(b)
the fact that the diagnosis of stroke offers a more logical and
plausible
explanation for the asymmetric quality of the brain injury
sustained by KLO.
[42]
The mixed pattern of injury with asymmetric characteristics renders
this case more difficult
and complex than those typically brought
before the courts of this division. Whilst a finding that the
respondent has not
discharged the onus on her means that the appeal
must succeed, the order to replace that granted by the court
a quo
must then turn on the issue as to whether the appellant’s
defence has been proved on a balance of probability. Proof
in a
civil case (of either a claim or a defence) turns on whether the
probabilities are such as generate a conviction in the reasonable
mind. (
Gates v
Gates
1939 AD 150
at 154-5.) “
It
is not a mere conjecture or slight probability that will suffice. The
probability must be of sufficient force to raise a reasonable
presumption in favour of the party who relies on it.”
(
West Rand Estates
Ltd v New Zealand Insurance Co Ltd
1925
AD 245.)
[43]
Given the complexities of this case, a conclusion that neither party
has managed to persuade
the court on a balance of probabilities is
hardly surprising. Neither case is without its flaws, and each
falls short of
generating a conviction that what is probable about it
outweighs what is probable about the alternative version. I am
unable
to find the appellant’s case established on a balance of
probability.
[44]
The appellant has asked for costs, and no argument was raised before
us to the effect that costs
should not follow the result. I think
that was an oversight. The learned judge
a quo
observed more
than once that the care given to the respondent was substandard, a
conclusion which this judgment endorses. The claim
fails because the
causal link between that and the ultimate unhappy outcome was not
proved. The claim was not by any means frivolous.
The respondent
litigated in the interests of a minor child. She is unlikely to be in
a position to meet an order of costs.
The
following order is made.
1.
The appeal is upheld and the order of the court
a
quo
is set aside. There is no order as to the costs of the
appeal.
2.
The order of the court
a quo
is replaced
with the following order.
“
The
defendant is absolved from the instance. There is no order as to
costs.”
OLSEN
J
I
agree
CHILI
J
I
agree
BEZUIDENHOUT
J
Date
of Hearing:
Friday, 31 July 2020
Date of Judgment:
THURSDAY, 21 JANUARY 2021
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and publication
on
SAFLII. The date and time for hand down is deemed to be on 21
st
January 2021.
For
the Appellant:
Mr AJ Dickson SC with Mr S Nankan
Instructed
by:
STATE ATTORNEY (KWAZULU-NATAL)
Appellant’s
Attorneys
6
th
Floor, Metropolitan Life Building
391 Smith
Street
Durban
(Ref:
24/003958/13/D/P12 – Mr C Bailey)
Tel: 031
– 365 2560)
Email:
CBailey@justice.gov.za
c/o CAJEE
SETSUBI CHETTY INC
195 Boshoff
Street
Pietermaritzburg…KZN
Tel: 033
– 345 6719
Email:
asifessacsc@mweb.co.za
For
the Respondent:
Mr I Topping SC
Instructed
by:
FRIEDMAN & ASSOCIATES
Respondent’s
Attorneys
44 St Andrews
Drive
Durban
North…4051
(Ref: Mrs B
Quarsingh/AS/03/D515/00)
(Tel:
031 – 564 8043)
(Email:
bhavnab@friedman-law.co.za
ash@friedman-law.co.za
c/o AUSTEN SMITH INC
Walmsley House
191
Pietermaritz Street
Pietermaritzburg…KZN
Ref:
CCS/RANITHA / Q2/F0254/13
Email:
callumsmythe@austensmith.co.za
ranitha@austensmith.co.za