A.T obo S.T v Member of the Executive Council for the Department of Health, Eastern Cape Province (305/2018) [2021] ZAECBHC 37 (18 October 2021)

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[2021] ZAECBHC 37
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A.T obo S.T v Member of the Executive Council for the Department of Health, Eastern Cape Province (305/2018) [2021] ZAECBHC 37 (18 October 2021)

OF INTEREST
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE NO. 305/2018
In
the matter between:
AT
obo
ST
Plaintiff
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE
DEPARTMENT OF HEALTH,
EASTERN
CAPE PROVINCE
Defendant
Summary:
Delict- medical negligence -failure
to monitor plaintiff and foetus during labour resulting in hospital
staff missing indications
of foetal distress and evolving
hypoxia/ischaemia leading to severe bradycardia - failure to apply
established interventions to mitigate
foetal distress caused by
prolonged pushing and premature bearing down conducing to developing
hypoxia/ischaemia - application of
traumatic fundal pressure
superimposed on pre-existing hypoxia/ischaemia terminating in severe
bradycardia and final acute profound
brain injury – whether
negligence of hospital staff was causally connected to damage -
factual causation established.
JUDGMENT
HARTLE
J
Introduction
:
[1]
The plaintiff claims damages from the
defendant based upon the alleged negligence of staff members in the
employ of the Department
of Health at the Bambisana Hospital (“the
Hospital”) arising from the management of her labour and the birth
of her baby girl,
ST, who was born with hypoxic ischemic
encephalopathy (“HIE”).
[2]
The conduct of the staff members upon which
the plaintiff relies as constituting the grounds of negligence, and
thus falling short
of the standard of care reasonably expected from
medical practitioners and nursing staff with appropriate obstetric
and neonatal
skill and knowledge, are set out in paragraphs 10 of her
particulars of claim.  In this regard it is pleaded that the
hospital
staff, at the relevant times of providing medical services
to the plaintiff during her labour and to her baby postnatally:
“
10.1
failed to monitor (ST’s) foetal heart (rate) timeously;
10.2
failed to regularly monitor the plaintiff or her foetus either
properly or sufficiently regularly
and consequently the plaintiff had
foetal distress;
10.3
failed to apply intrauterine resuscitation measures as reasonably
required in the circumstances;
10.4
failed to admit the plaintiff timeously to the hospital, when it was
medically advised to do so;
10.5
failed to diagnose or determine (the) onset of foetal distress,
hypoxia and/or hypoxic ischaemic
encephalopathy and/or meconium
aspiration syndrome and/or superadded hypoglycaemia.
10.6
failed to provide any or adequate treatment to the plaintiff and/or
her foetus so as to prevent
the development of foetal distress and/or
hypoxic ischaemic encephalopathy and/or meconium aspiration syndrome
and/or superadded
hypoglycaemia.
10.7
failed to properly examine and monitor plaintiff in terms of the
Maternity Care Guidelines of South
Africa;
[1]
10.8
failed to take any or adequate steps to prevent the plaintiff’s
labour from being extended unreasonably;
10.9
failed to take any or adequate steps to have the plaintiff timeously
transferred to a higher-level
facility and/or it and/or its employees
failed to take any or adequate steps to facilitate the timeous
delivery of the plaintiff’s
foetus;
10.10
failed to diagnose at the time of delivery or immediately thereafter
that the foetus had suffered from hypoxia
and/or hypoxic ischaemic
encephalopathy and superadded hypoglycaemia, and failed to implement
the appropriate treatment protocols.”
[3]
The plaintiff amended her particulars of
claim in March 2020 to introduce two further grounds, 10.11 and
10.12, which refer firstly
to a failure on the part of the hospital
staff to have made use of sedation to prevent her from bearing down
prematurely and for
extended periods during her labour and, secondly,
the application by the nurse who delivered ST of inappropriate fundal
pressure
during her labour, which omission and commission
respectively she alleged compromised the wellbeing of her unborn
baby.
[4]
The defendant, whilst admitting that ST was
born at the hospital under the watch of the employees who were
responsible to render medical
services to the plaintiff and her
unborn child at the requisite level of care and skill, and for whose
acts and/or omissions she
is vicariously liable, denied all
allegations of negligence and causation.  Also placed in
contention on the pleadings was the
plaintiff’s allegation that ST
was born with foetal distress, hypoxic ischemic encephalopathy
(“HIE”), microcephaly, impaired
motor function and superadded
hypoglycaemia giving rise to spastic quadriplegic cerebral palsy and
developmental delay.
[5]
The parties agreed to a separation of
quantum from merits and an order was made to this effect during the
case management processes.
[6]
The question to be decided by this court is
whether the employees of the defendant, more particularly the nurse
and her assistant
involved in the management of the plaintiff’s
labour in the active phase, and the doctor/ staff who treated ST
after her birth,
were negligent in their treatment of them on any of
the grounds of negligence pleaded by her, and whether such negligence
(if proved)
gave rise to the baby’s condition of,
inter
alia
, hypoxic ischemic encephalopathy
(“HIE”) or, otherwise put, did the harm as a matter of fact
result from the alleged negligence.
The
factual premise for the claim and the issues for determination:
[7]
I begin with the facts that are
uncontroversial:
7.1
The plaintiff was 19 years old at the time of her confinement and a
primigravida
.
7.2
She had received antenatal treatment at the Bambisana Clinic from
January 2016 until she went into labour
on 2 May 2016.
7.3
She had had an earlier admission to the hospital during her
pregnancy, ostensibly because she imagined
a lack of foetal movement,
but this concern proved to be unjustified and, so it was agreed, had
no bearing on the unfortunate outcome
in this matter.
7.4
She was admitted at the hospital on 2 May 2016 at approximately
16h00.  She presented with labour-like
pains which had started
around 13h00 that day.  She was examined and diagnosed to be in
the latent stage of labour.
7.5
The management of the plaintiff’s labour and the monitoring of the
foetal condition in this early stage
of labour from the point of her
admission to hospital until the next assessment appears to have been
without any concerns.
[2]
Indeed, a cardiotocography (“CTG”) done on admission was regarded
as normal;
[3]
7.6
The plaintiff was diagnosed as being in the active stage of labour
just after 20h00 by which time her
cervix had dilated to 4cm.
7.7
The management of her labour from then until ST’s delivery was
overseen by a professional nurse, Sister
Tshanyingca, and documented
by the latter in clinical notes and in a partogram plotted by her.
(Sister Tshanyingca was also
responsible for completing the Summary
of Labour chart applicable to the plaintiff’s birth process from
the active phase of labour
and related documentation recording her
condition immediately after delivery, as well as the First
Examination of Neonate
[4]
and
Assessment of the Newborn charts pertaining to the treatment of ST
postnatally.)
7.8
ST was born, according to the hospital’s records, at 00h45 on 3 May
2016.
7.9
She was delivered vaginally by Sister Tshanyingca.
7.10   She
had a low Apgar score of 4/10 in the first minute and was required to
be resuscitated.
7.11   Her
Apgar was noted by Sister Tshanyingca to have increased to 7/10 in 5
minutes.
7.12
ST’s condition was diagnosed by a doctor after the delivery as
Hypoxic Ischemic Encephalopathy (“HIE”) on scale
13.
[8]
No
indication of any foetal distress to ST was noted by Sister
Tshanyingca in either her clinical notes or on the Assessment of the
Newborn chart, despite the common cause fact that ST was born flat
with no respiration, a low Apgar score and was required to be
resuscitated.  In fact, the question posed on the form whether
there were problems with the delivery was left blank.   The
reality of ST’s compromised birth was however coincidentally noted
in the Summary of Labour Chart to be a birth “complication”
coinciding with her explanatory comment that “mother of the baby
was not co-operating at all during labour and delivery”, but
she
answered “no” to the question whether there were any birth
injuries.  Despite this, on the First Examination of Neonate
chart (on the face of it completed on 3 May 2016 by Sister
Tshanyingca),
[5]
a list appears
in the “sick column” to the effect that the baby was dysmorphic,
jittery, had caput, suffered bradycardia, exhibited
shallow chest
movement, had a slow respiratory rate, made grunting noises, had
hypertonic muscle tone, weak Moro reflex (“fisting”),
her grasp
and suck reflexes were absent, and she had a high-pitched cry.
[9]
The
doctor who assisted her with the resuscitation of the baby after the
delivery
[6]
wrote
(retrospectively) at 2h30 on 3 May 2016 as follows:
“
-
called for a flat neonate
-
Mother started to push before time and was
not cooperative;
-
Episiotomy was done … and fundal pressure
applied to deliver the neonate;
-
O/E 00:50 (24:50) (baby was) pink with
irregular respiration, normal pulse (136), suctioning and ambubagging
continued until baby
had regular breathing with sats 95% - 99%.
-
Blood sugar 7.6 mmol/l, reflexes: weak,
tone slightly floppy, fisting and hyperextended LL (lower limbs).
-
NPOZ (on oxygen) in theatre
-
Assessment – HIE with ˃ 10 (13) due to
poor Maternity effort.”
[10]
By the time the trial ensued it appeared to
have been accepted that ST had suffered a HIE injury, but causal
negligence remained in
dispute.
[11]
Several
experts filed professional reports and in some areas of expertise
joint minutes were filed.  The experts’ conclusions
in respect
of the issues of negligence and causation were based at face value on
the information recorded in the maternity case records
described
above which were mostly written in the hand of Sister Tshanyingca.
[7]
[12]
As
will become clearer below the plaintiff’s case is that these
records kept by Sister Tshanyingca were, firstly, not a true
reflection
of her professed management of the plaintiff’s labour
and delivery insofar as her involvement was concerned,
[8]
and, secondly and in any event, neither were they adequate or in
conformity with the Maternity Guidelines concerning their keeping,
leading ineluctably to the conclusion of a non-reassuring foetal
condition in the first and second stages of the plaintiff’s active
stage of labour, underscoring the probability advanced by the experts
on her behalf that the field was left wide open, as it were,
for
abnormalities in her labour and ST’s foetal distress and evolving
hypoxia to have gone undetected, unfortunately culminating
in the
damage-causing event.
[13]
In respect of the question concerning what
happened during the plaintiff’s labour, therefore, there are
mutually opposed versions
regarding the factual premise upon which
this court must firstly determine the grounds of negligence relied
upon by the plaintiff
more particularly concerning how the staff
managed (or failed to properly manage) her labour and the supposed
inappropriate application
of fundal pressure administered by Sister
Tshanyingca which was alleged to have compromised ST’s wellbeing
during the labour and
birth.
[14]
The second area of contention, as between
the parties’ experts, goes to the issue of causation and more
particularly whether the
ultimately accepted diagnosis of ST’s
condition of HIE has a connection with the alleged sub-standard
monitoring and treatment
of the plaintiff and ST (in accordance with
the plaintiff’s version) and/or the inappropriate intervention of
fundal pressure (if
found to have been applied by Sister
Tshanyingca), which according to the plaintiff’s experts must
plausibly have contributed to
ST’s HIE.
[15]
Concerning the birth injury sustained by ST
it was agreed between the parties that a Magnetic Resonance Imaging
(“MRI”) of her
brain, undertaken on 8 June 2018, demonstrated
features of a global insult due to an acute profound hypoxic ischemic
injury.
The fact of this finding in itself is not contentious,
but how the baby probably came to suffer such an injury, and indeed
whether
it could have been avoided, was the subject of dissenting
expert opinion as the evidence will attest.
[16]
The
plaintiff’s experts contend that the relevant pattern of the injury
shown by the MRI is entirely consistent with the premise
on which her
case rests, but the defendant submits that because of the unique
pattern demonstrated by the scan, ST’s brain injury
must have
occurred suddenly and therefore have been unavoidable or
unpreventable, putting paid to the premise asserted by the plaintiff
that any negligence on the part of the attending nurse and her
assistant could causally have contributed to the unfortunate
outcome.
Put differently, the defendant’s case is that the
injury by its very nature, because of its radiological typification
and the known
neuroimaging features of such an injury, could not
plausibly have arisen from any of the grounds of negligence relied
upon by the
plaintiff, even if found proven.
[9]
The
Joint
Minutes
:
[17]
The obstetricians and gynaecologists, Dr D
Bowen (on behalf of the Plaintiff) and Dr Koll (on behalf of the
defendant), agreed that
there was no reason to suspect antenatal
problems attributable to the injury.  They further agreed that
the plaintiff’s labour,
since she was admitted in active labour,
progressed satisfactorily and that the only CTG, undertaken at 16h20,
did not show any worrying
features.  They further agreed that
the plaintiff’s second stage of labour was uneventful and that the
baby was delivered
quickly.
[18]
However,
their points of disagreement
[10]
were noted as follows:
“
4)
Dr Bowen
:
The fetal heart was not monitored according to guidelines in labour.
According to the partogram it was monitored only before
each
contraction and not monitored at all for 1hr between 23h00 and 00h00.
The most important time for the fetal heart to be monitored
is after
a contraction to detect any worrying decelerations. These would
unlikely be detected if monitoring was (not) done before
a
contraction as in this case.  This renders interpretation of the
well-being of the baby since admission very difficult as
no
monitoring was done at the time when problems may have been picked
up.
Dr
Koll
: i) The fetal heart was monitored
every half hour except for a single omission.
There
were 2 recordings of a normal fetal heart after this omission and
thus     there is no causal relationship
between
this omission and the outcome.
ii)The
fetal heart is routinely auscultated before, during and after a
contraction.
How
else would it be possible to know you were listening before or
after?  It is seldom (if ever) recorded as 3 separate
recordings.
The recording of the fetal heart was thus recorded
as would be expected of a reasonable health care professional.
5)
Dr Bowen
:
Of particular concern is the fact that this patient was assessed as
pushing uncooperatively from 22h12.  This means that she
was
pushing for 2 hours 30 minutes before the baby was born.  It is
known that fetal acidosis can occur after 60mins pushing.
It is
also noted in the South African guidelines that the fetal heart rate
should be checked after every 2
nd
contraction when pushing is occurring.  I accept that
auscultation is enough unless heart rate abnormalities are heard when
electronic monitoring should be instituted.  Unfortunately, it
appears that no effective monitoring of this fetus (ie heart
rate
check after a contraction) was performed so that it cannot be stated
that the fetal heart rate was normal in labour.  I
am concerned
that the nursing care of this patient was poor as she was not offered
analgesia which, along with encouragement, may
have prevented this
early pushing.  This again is mentioned as requisite care in the
guidelines.
Dr
Koll
: The note at 22:12 states “patient
is not co-operating at all”.  There is no mention of pushing
at that point.  At
00:12 the record states “Patient is pushing
and she doesn’t listen”.  At 00:30 “Patient was pushing as
from when she
was 6 cm”.  How hard, how long and what measures
were taken to discourage the pushing are not recorded.  The
suggestion
that she pushed continuously from 22:12 to delivery with
no effort by the staff to discourage this is both speculative and
unlikely.
The recording of the fetal heart has been addressed.
6.
Dr Bowen:
Since at no point the fetal heart rate was monitored after a
contraction according to the records it is not possible to say there
was no fetal compromise during the labour and the poor condition of
the baby at birth may well have been due to damage sustained
during
the labour.  Of interest is that the Dr called to assess the
baby noted that he thought there was HIE which he attributed
to the
prolonged maternal pushing.
Dr
Koll:
The issue of monitoring has
already been addressed (twice).  It is critical to appreciate
that Prof Andronikou has reported an
acute profound injury.
This would have occurred shortly before the birth and in view of the
rapid second stage would not have
been preventable by doing an
assisted delivery.  It also means that monitoring during the
labour becomes irrelevant.  Even
if fetal distress went
undetected earlier (and there is no evidence to suggest fetal
distress in the record), it would have caused
a partial prolonged
injury.”
[19]
Professor
John Anthony, obstetrician and gynaecologist who ultimately testified
on behalf of the plaintiff and endorsed the points
of contention
noted by Dr Bowen filed a professional report on 26 September 2020.
He and Dr Koll, who testified on behalf of the
defendant, did not
prepare a joint minute. I deal with his evidence later, but I set out
below, by way of introduction, a summary
of the conclusions listed in
his report following a record-based review of the plaintiff’s
case:
[11]
“
1.
This was a low risk pregnancy
2.
The plaintiff went into spontaneous labour at term
3.
The fetal wellbeing on admission was apparently normal
4.
Fetal monitoring during the labour was inadequately performed.
5.
The labour progressed rapidly and the plaintiff was noted to be
bearing down before
she entered the second stage of labour
6.
Prolonged bearing-down efforts during the second stage of labour are
proscribed
in guideline recommendations
7.
Fundal pressure was used to effect delivery.  This is a
dangerous intervention
associated with described adverse outcome
8.
It is likely that the fetus suffered a short period of severe hypoxia
during the
second stage of labour while fundal pressure was deployed
in association with prolonged bearing down efforts on the part of the
mother
9.
It is likely that the baby suffered hypoxic ischaemic damage during
the second
stage of labour
10.
Any injury sustained during the second stage of labour would have
been avoidable with proper
attention to fetal monitoring and the use
of established methods of intervention (where necessary) during the
second stage of labour
(e.g. instrumental vaginal delivery)”
[20]
The joint minutes of Professor S Andronikou
and Dr Westgarth-Taylor, radiologists for the plaintiff and defendant
respectively, recorded
their agreement, as stated above, that “(ST’s)
MRI demonstrates features of a global insult due to an acute profound
hypoxic
ischaemic injury, in a brain of term maturity”.  They
add that there are no features to suggest any congenital infection or
malformation.  They also confirm that the cause or timing of the
event cannot be established on an MRI.  Dr Westgarth-Taylor
qualified ST’s injury as being “mild”. The damage is to the
putamina, peri Rolandic and hippocampi regions, the so-called grey
matter areas of ST’s brain.
[21]
Professor P Cooper (expert paediatrician
for the defendant) and Dr Yatish Kara (expert paediatrician and
neonatologist for the plaintiff)
recorded their agreement in a joint
minute as follows:
“
1.
(ST) was born at Bambanisa Hospital on 3 May 2016 at 00.45 by vaginal
delivery.  She was resuscitated at birth.
Apgar scores
were 4/10 and 7/10, baby was recorded as being “flat”.
2.
Weight was 2.9kg, length 50 cm and head size 36 cm.  There was
no reason to consider the child to have been growth
restricted.
3.
It is recorded that she had severe hypoxic ischaemic encephalopathy
after birth.  There were signs of respiratory
distress after
birth.  There was no other known cause before the encephalopathy
at birth other than hypoxia ischaemia but without
the neonatal
records it is not known whether investigations for other causes were
done.
4.
Dr Kara examined the child and recorded signs of spastic
quadriplegia, GMFCS level 3-4, speech impairment, epilepsy
and
postnatal microcephaly.
5.
MRI scan recorded features of acute profound hypoxic ischemic brain
injury.
6.
It appears that there was no concern over foetal condition on
mother’s admission to hospital in labour.  CTG
done on
admission was normal.
7.
It is probable that the cerebral palsy was due to an intrapartum
hypoxia ischemic event.”
[22]
Their points of dissension are noted as
follows:
“
8.
Dr Kara does not necessarily accept Prof Cooper’s comment that the
injury probably occurred in the last 45 minutes of labour.
The
MRI scan findings of basal ganglia and thalamic injury cannot time an
injury to have occurred within a specific period unless
there is
evidence of a sentinel event.  He states that in the absence of
evidence of good foetal condition prior to a sentinel
event (a
sudden, unanticipated deterioration in foetal condition in a foetus
previously considered to be in normal condition), the
timing of the
injury may extend over a period of hours, often many hours and not
minutes (Volpe, Neurology of the Newborn, page 503,
6
th
edition 2017).  Dr Kara states that obstetric experts must
advise on the foetal condition during the labour.  Only if the
consensus is that the foetal condition was good prior to the last 45
minutes of labour, would he accept Prof Cooper’s comment.
Prof
Cooper is of the opinion that Volpe is being misquoted by Dr Kara in
this section.  Volpe states on page 503 that “in
80% to 90% of
cases in infants with hypoxic ischaemic disease, in which an overt
fetal sentinel event is not present, the uncertainty
in timing is
often measured in hours, often many hours or more, and not minutes”.
He is clearly including the partial prolonged
type of injury as
well.  In the section on page 489 (Deep Nuclear – Brain-Stem
Neuronal Injury” he states that “In approximately
15% to 20% of
infants with hypoxic ischaemic disease, involvement of deep nuclear
structures (i.e., basal ganglia, thalamus and tegmentum
of brain
stem) is the
predominant lesion
”
(Volpe’s italics).  In the accompanying figure 18.3 on page
489 of Volpe illustrating these lesions, it is stated that
these are
“lesions in a typical case of a term new-born subjected to severe,
terminal asphyxia”.
Dr
Kara Responds – This child does not appear to have the deep nuclear
brainstem type of injury that Prof Cooper quotes above.
The
injury pattern is that of a cerebral and deep nuclear injury (peri
Rolandic and putamina) also described on the same page.
Volpe
comments on page 486, 489 and page 501 (table 19.1) that this pattern
of injury results from moderate to severe, prolonged
injury.
TABLE
19.1 Major Patterns of Selective Neuronal Injury and Characteristics
of Usual Insult in Term New-borns
PATTERN
SEVERITY
AND TIMING OF USUAL INSULT
Diffuse
(cerebral cortex, deep nuclear, brain stem)
Severe,
prolonged
Cerebral
cortex-deep nuclear
Moderate,
prolonged
Deep
nuclear-brain stem
Severe,
abrupt
Prof
Cooper relies on the fact that the expert radiologist reported that
the MRI features were those of an acute profound hypoxic
ischaemic
brain injury.”
[23]
Dr
Davies, a paediatrician with sub-speciality neonatology filed a
report on behalf of the plaintiff date 3 January 2020 on the probable
cause of neurological outcome in ST.
[12]
I summarise his conclusions reached below:
“
1.
(ST) was born at term by vaginal delivery on 3 May 2016 at Bambisana
Hospital.
2.
Management of the antenatal period, the labour and the delivery are
deferred for
Expert Obstetrician opinion.
3.
(ST) was born in a severely compromised condition which necessitated
immediate
resuscitation.  Resuscitation was most probably
appropriate, reasonable and within accepted standards and guidelines
at the
time and most probably did not further affect the outcome.
4.
Moderate-severe neonatal encephalopathy (NE) of Sarnat Grade 2 – 3
was present
after birth.  NE has many causes but in this case
was most probably due to hypoxia ischaemia.
5.
MRI showed evidence of an acute profound hypoxic ischaemic injury and
excluded
other causes such as congenital abnormalities and
infections.
6.
It is not possible to determine exactly the timing of the
hypoxic-ischaemia (antepartum,
intrapartum and postpartum), however,
on the basis of the need for resuscitation at birth, and the early
development of moderate-severe
neonatal encephalopathy (NE), it is
probable that ST’s current neurological handicap is a result of an
intrapartum hypoxic ischaemic
injury at term.”
[24]
The defendant sought the opinion of
Professor A L Christianson, a paediatrician and sub-specialist
medical geneticist. He filed a
report dated 27 November 2019 in which
the following concluding comments are made:
“
7.1
(ST), on my clinical assessment may have dystonic cerebral palsy, and
does have mental retardation
and epilepsy (6.8).
7.2
The Radiologists agree that (ST) had HICI of an acute profound
nature.
7.3
There is a consideration that because (the plaintiff’s) brother
(ST’s Maternity uncle)
as disability, that (ST’s) clinical
problems may be genetic.
On
(the plaintiff’s) description of her brother’s disability he is
physically and ostensibly mentally able (Std 9 at age 15 years)
but
has a serious communication problem (uses sign language).  It
could not be ascertained if he was deaf.  His clinical
problem(s) therefore, subject to confirmation, do not appear similar
to those of (ST). (ST), is not dysmorphic.
Thus,
(ST’s) clinical problems, in the first instance, do not appear to
be genetic/syndromic.  However, this is subject to
confirmation
that her Maternity uncle does not have physical and/or mental
disability & the confirmation by a Paediatric neurologist
that
(ST’s) physical disability is dystonic cerebral palsy.”
[25]
The
professional nurses, Ms. Rensia Smit on behalf of the defendant and
Ms. Lesley Fletcher on behalf of the plaintiff, also compiled
a joint
minute.  They agreed that monitoring had occurred according to
the standards prescribed by the Guidelines for Maternity
Care in
South Africa (2015) and that the plaintiff had been “uncooperative”
ostensibly since she started bearing down before
her cervix was fully
dilated, at 5cm dilatation (sic).
[13]
They were also in agreement that both the plaintiff’s latent and
active phases of labour were completed within acceptable
time limits.
[26]
They could not agree on the aspect of the
speed of the plaintiff’s cervical dilatation or the impact of the
plaintiff’s pushing.
Ms. Smit expressed the view that the
plaintiff’s cervical dilatation was “faster” due to her
premature pushing, but Ms. Fletcher
opined that premature bearing
down does not necessarily lead to a more rapid dilatation.  In
fact, she believed that it might
slow down the rate due to oedema of
the cervix.
[27]
They were further
ad
idem
as to the following features as
recorded in their joint minute:
“
3.1
There was no recorded evidence on the steps taken to encourage
maternal cooperation since according
to the record, premature bearing
down started at 5cm dilatation.  A request not to bear down is
insufficient if the urge to
bear down is irresistible.  At
22h12, uterine contractions were strong, occurring at a rate of 3/10
minutes and lasting for
more than 40 seconds.
RS
acknowledged that while it was noted that (the plaintiff) was not
co-operating at all it was unfortunate that the nurses did not
put in
their statement what they specifically referred to.
3.2
There was no indication to use fundal pressure to accelerate delivery
of the baby (foetal
heart was apparently normal according to the
final recording on the partogram at 00h12 (137 beats/minute) and 127
beats / minute
at 00h30 as recorded on the clinical notes.
Second stage of labour was not prolonged – commenced at 00h30 and
the baby was
delivered at 00h45 i.e. 15 minutes.
3.3
No recorded report by nurses on the use of fundal pressure – this
was reported by the doctor.
∙
R.S
It was documented at several intervals that (the plaintiff) was not
co-operating and was pushing prematurely, even when requested
not to.
∙
R.S
agree no documentation to state if fundal pressure was done by the
nurses only the doctors notes reported it.”
[28]
Professor Smith, a neonatologist who
testified on behalf of the plaintiff, filed an initial report dated
14 September 2020 in which
he expressed the following views
concerning the plaintiff’s labour, the baby’s condition, and the
possible mechanism of injury
to ST:
28.1   The
antenatal period of the plaintiff’s pregnancy followed an
unremarkable course.
28.2
When the plaintiff was admitted on 2 May 2016 in the latent phase of
labour the foetal condition was “probably
reassuring”, based on
the CTG trace around 16h20. (A reassuring admission trace is in
keeping with a non-hypoxic, non – (brain)
injured foetus at the
time).
[14]
28.3
The plaintiff’s labour progressed in a normal manner and foetal
reviews revealed no obvious foetal heart rate abnormalities,
save for
the midwife’s recordal that the plaintiff was not co-operating “at
all” at 22h12 (when her cervix was 7cm dilated);
at 00h12 that the
plaintiff was pushing and “not listening” (at 9cm dilatation) and
at 00h30 that “she is pushing from (5/6cm).”
[15]
28.4   The
feature of the plaintiff’s pushing or “early urge to push” is a
normal variation and not necessarily associated
with complications.
28.5
With regard to the referral by the “paediatric doctor” (sic)
[16]
in
his note to the use of fundal pressure, he noted the arguments for
and against the safety and effects of such intervention and
possible
neonatal consequences, concluding with reference to published papers
and the stance of the World Health Organisation (“WHO”),
that the
use of fundal pressure in delivery is to be discouraged.
28.6
He noted that ST was appropriately grown for her gestational age but
was delivered in a severely compromised condition
having regard to
the clinical presentation at birth.  With reference to the
further facts that she failed to establish independent
spontaneous
breathing after birth, required resuscitation and presented with
further compromising features at 5 minutes after birth,
he was
satisfied with the diagnosis that she had developed an early onset
neonatal encephalopathy (“NE”) of
moderate
degree
[17]
which
he considered to be causally associated with the condition of spastic
quadriplegic cerebral palsy and epilepsy which ST has
since her birth
suffered from.
28.7   He
considered that ST’s clinical outcome was in keeping with the
injury pattern as per the MRI.
28.8
The type of injury under scrutiny, that is to the central grey
nuclei, the putamina (basal ganglia (BG) and peri-Rolandic
cortex and
hippocampi) can occur in his view in the presence
or
absence of a sentinel event during labour.
[18]
28.9
The BG injury and radiologically termed “acute profound HI brain
injury” are not necessarily synonymous and a
visualized MRI pattern
should preferably solely reflect the pattern’s description and
severity, rather than link a causative mechanism
of injury to the
pattern.
[19]
28.10
He identified with reference to Mallard,
[20]
Haan
and Gunn
et
al
the possibility of repeated and prolonged periods of asphyxia (oxygen
deficiency) or ischaemic (blood flow) insufficiency during
labour in
the near-term foetus (referred to as “subthreshold
hypoxia/ischaemia”)
[21]
as
also being causative of a BG injury (which is an exception to the
general tendency of a watershed distribution after global asphyxia
insults in the near-term foetus)
[22]
in
the absence of any intrauterine “sentinel”/catastrophic event.
He explains that the striatum (putamina) is within the
territory of
the middle cerebral artery and is not a watershed zone.  Thus,
it is likely that the pathogenesis of striatal involvement
in the
near-term foetus is related to the precise timing of relatively
prolonged episodes of asphyxia and not to more severe local
hypoperfusion (ischaemia).  Speculatively, the apparent
vulnerability of striatal medium-sized neurons to this type of insult
may be related to a greater release of glutamate into the
extracellular space after repeated insults compared with a single
insult
of the same cumulative duration.
28.11 Commensurate
with this premise expanded upon by him, he considered that ST’s
injury was either due to the consequence of repeated
and prolonged
hypoxia (oxygen sufficiency) or ischaemia (blood flow insufficiency)
during labour since there was no intrauterine
“sentinel”/catastrophe
event, or that there was another explanation for the injury.
28.12 Prof Anthony’s
view of substandard foetal heart rate monitoring which would entail
that the foetal distress occasioned by
the plaintiff’s prolonged
bearing down and the application of the fundal pressure applied
during the second stage of labour was
missed, might well be that
“other explanation”.
28.13 He put forward
the external fundal pressure (a potentially dangerous procedure) that
was purportedly applied to the plaintiff’s
abdomen during the
second stage as a possible iatrogenic-induced sentinel event
consistent with the views of Schifrin. (The latter
has described
cranial compression ischaemic encephalopathy (“CCIE”), as a
condition which follows excessively strong, prolonged,
and frequent
uterine contractions, prolonged labour, difficult labour, difficult
delivery, mal-positioning of the presenting part,
and head
compression (as may be caused by external fundal pressure) resulting
in moulding of the foetal skull, which can increase
the external
pressure on a foetus’s head to the point that the pressure
collapses the blood vessels in the foetus’s head, thereby
preventing sufficient blood and associated oxygen from being
circulated to the brain. The mechanical effects on distorting foetal
cranial volume and pressure may result in ischemic and haemorrhagic
foetal neurological injury, without being associated with systemic
foetal hypoxia and acidosis.  Schifrin maintains that central
nervous system lesions support a notion of injury that derives
from
mechanical forces on the foetal head during labour resulting in
diminished cerebral perfusion.)
28.14 The underlying
pathophysiological concepts, namely, that excessive external pressure
on blood vessels can collapse them and
cause ischemic injuries; that
during a contraction the intrauterine pressure on a foetus increases;
and that in response to this
rise in external pressure a foetus
raises its own internal blood pressure to ensure that blood
circulates to tissues and organs are
widely accepted in the medical
field, taught in medical schools, and published in peer-reviewed
journals.
28.12
Finally, he concluded that the absence of the provision of
therapeutic hypothermia after ST’s birth, aimed at ameliorating
or
preventing brain injury following intrapartum asphyxia, was
overlooked, which in his view would also have amounted to
sub-standard
neonatal care.
[23]
This
goes along with his view that brain injury is an evolving process.
Both experimental and clinical studies show that brain cell
death
does not necessarily occur during hypoxia or ischaemia, but rather
may precipitate a cascade of biochemical processes leading
to delayed
cell death hours or even days afterwards (the secondary phase), hence
the importance to stabilize and monitor the newborn,
timeously and
adequately following birth in an asphyxiated status.
[29]
Professor Smith filed a supplementary
report dated 8 October 2020, amplifying his earlier report after
being informed of the premise
that the plaintiff would say that the
attending nurse had applied knees and fists to her abdomen during the
delivery and after having
had sight of the opinion of Professor
Anthony in which he identifies the alleged inappropriate fundal
pressure (together with the
other features of the plaintiff’s
mismanagement previously referred to) as a probable cause of the
injury in all the circumstances.
In this regard he explains the
significance of the mechanical force exerted on the foetal head and
on the intracranial pressure and
blood flow during labour when the
term foetus is in a cephalic presentation whether as a result of the
mother’s contractions or
iatrogenically, including for example the
application of excessive fundal pressure. The consequences of these
forces will show that
the foetal heart rate remains normal up to a
certain pressure threshold above which decelerations occur.  Two
important things
emerge from this. The first is his explanation
accounting for the probable mechanism of the final acute insult (
in
casu
) by virtue of the decreasing
cerebral blood flow at the opposite end of the significantly
increased intracranial pressure (when the
traumatic fundal pressure
was applied) and the second is his assertion that this risk would
probably have been detectable in the
corresponding foetal heart rate
decelerations as a reaction thereto.  He emphasizes that
decelerations cannot be fobbed off
as reflex or innocuous. Instead,
in the context of the duty to monitor, the objective is to recognize
and detect foetal heart rate
changes as a vital indicator of foetal
compromise.  All of these observations of his are correlated
with reference to documented
literature.
[30]
In his addendum he again
touches on the subthreshold hypoxia theory and its relevance to the
diagnosed injury.  He observes that
fundal pressure itself
(leave aside the mention of the use of fists and knees) is a
dangerous intervention associated with described
adverse outcomes.
His amplified conclusion is that the combination of the plaintiff’s
prolonged bearing down efforts, uterine
contractions and superimposed
external abdominal pressure through unconventional, untested, and
dangerous techniques, resulted in
the birth of ST as a compromised
baby.
[31]
These efforts, contractions and
the application of the external pressure would, according to him,
probably have resulted in compromised
blood flow to ST’s brain
which would have been detectable with foetal monitoring as changes
(decreases) in foetal heart rate would
have occurred.
The
lay testimony:
[32]
The plaintiff herself testified and the
only other lay witness to testify was the midwife who delivered ST,
one Sister Tshanyingca.
The
plaintiff’s evidence:
[33]
The
plaintiff provided a narrative of the defining events from her
perspective.  She developed labour pains on 2 May 2016 around
13h00 and arrived at the hospital at about 16h00.  She was given
a vaginal examination and a “belt” was put on her stomach.
(This correlates with the clinical notes that a CTG was used at her
first assessment, the purpose of which she accepts was to monitor
the
foetal heart rate.)
[24]
She was admitted to the labour ward (ostensibly the antenatal ward)
and told that she would give birth at around “8pm”.
She
progressed from what she described as being “in labour” or “not
severely in labour” to “near labour” around 20h00,
from which
point she was in pain and had the feeling to push, which she did.
There were no nurses present at the time in the
ward whom she could
call upon to be of assistance to her.
[34]
The pain and urge to push persisted and
patients sharing the ward with her called for help on her behalf.
Nurses came and she
was examined vaginally and informed that she
would give birth at “8am” the following morning.
[35]
Despite what she had been informed
regarding the anticipated time of delivery she experienced the
ongoing sensation of “being in
labour”, feeling the urge to push
and around midnight fellow patients again intervened on her behalf to
call the nurses.
[36]
She
was taken to the labour ward.  (I assume this to mean the
delivery ward.)
[25]
She
was instructed to push, but at the time no longer had the energy to
do so.  At this juncture the nurse conducted
a digital vaginal
examination and also used a horn like device to listen to her baby’s
heartbeat, which she informed the plaintiff
was “solid”.
[37]
Since she could not push, one of the nurses
put her fist on her stomach and applied pressure to assist her.
The baby did not
come out.  Another nurse (by a process of
deduction this must have been Sister Tshanyingca) came and put
pressure on her stomach
by using her knees.  Nothing happened as
a result, but she felt pain.  She was then cut underneath.
(It is common
cause that a bilateral episiotomy was performed on the
plaintiff by Sister Tshanyingca).  This was followed by the same
nurse
again exerting pressure on her stomach with her knees after
which the baby was expelled.
[38]
When she was delivered, ST did not cry, and
her arms were “straight”.  A doctor was called but she could
not discern what
treatment was administered to her baby during this
interlude.  She only saw ST again the following day when she was
encouraged
to nurse her, but the infant struggled to feed and so was
put on a drip for two days until she could be nurtured at her breast.
[39]
She also noticed that ST cried a lot with
an unfamiliar or strange cry.
[40]
Although she did not notice anything
critically abnormal at first, she had been warned by the doctor (the
one who had arrived after
the delivery) that ST would suffer delays
and disability because she had been “born badly”.  At the
age of two months ST
started to have epileptic seizures.
[41]
Under cross examination she dismissed the
assertion put to her that she had been “regularly examined” by
the nurses after her
admission to hospital at 16h00 on 2 May 2016.
Instead, she insisted that this had only happened on three specific
occasions.
[42]
The
first time she was examined was on her arrival at the hospital by the
nurse on the “morning shift” who put a belt on her stomach
(CTG)
and inserted fingers.  It was these nurses who she says
speculated that she would give birth at “8pm”.
[26]
Later, when there was a change of staff for the night session, she
was examined for a second time after the nurses were called
by
patients in the ward to assist her in response to her loud cries and
screams.  She was examined for a third time before being
transferred ultimately to the delivery ward, this time also after
patients in the ward had summonsed the nurses on her behalf.
[43]
Regarding the urge to push, she
acknowledged that she had been told by the “nurses” to breathe
but not to push, but she did not
accept in this respect that they had
spoken to her “often” during the birth process about breathing
and not pushing.  Self-evidently
she did not appreciate the
significance of the notion put to her by Mr. Van Der Linde, who
appeared for the defendant, that she had
been “pushing far too
early”.
[44]
She also explained, in response to Mr. Van
Der Linde’s assertion put to her that Sister Tshanyingca would say
that she was pushing
and not listening to what the nurses were saying
with regard to what was expected of her, that she only “pushed when
they were
not there”, meaning that she pushed in their absence in
response to the severe pain and sensation that she was about to give
birth.
[45]
She evidently had no sense of when exactly
her cervix had supposedly dilated to 8cm but challenged that part of
Mr. Van Der Linde’s
assertion put to her that Sister Tshanyingca
had been with her virtually all the time according to the defendant’s
instructions
since that milestone had been reached.  She also
seemed to have little appreciation for the suggestion put to her that
she had
been “uncooperative” during the labour according to the
defendant’s instructions, but firmly disavowed that she had been
found
(supposedly by Sister Tshanyingca) in the toilet pushing.
Indeed, she responded that: “there is no such, she was not even
there, she only came when she was called”, meaning at the time she
was taken to the delivery ward in order to be assisted in giving
birth there.
[46]
In response to the direct question of Mr.
Van Der Linde whether the heart rate of the baby had been listened to
every half hour, she
reiterated that this had only happened on the
three occasions referred to above.  Indeed, the notion that she
and the patients
in the antenatal ward were subjected to regular
checks at all times was disavowed by her firm statement that: “There
were no nurses”.
She suggested that they had only once monitored
her contractions and again rejected the statement put to her that
Sister Tshanyingca
had been with her “virtually all the time”
since she was 8cm dilated.
[47]
Of her experience in the labour/delivery
ward itself she remembers that she was taken there around 12
midnight, and that there were
two nurses present. (She did not know
their names.) She repeated that by this time she was “tired of
pushing” and therefore unable
to although one of the nurses (one of
the two present) had urged her to do so.
[48]
Concerning the sequence of events that
occurred at this point, she testified as follows:
“
When
I arrived at labour, I was unable to push.  One of the nurses
exerted pressure, (two) fists on my stomach, said, telling
me to push
but I was unable to push but the baby even then did not come out. I
said a nurse came and exerted pressure on her knees
and even then,
the baby did not come out. Then I was cut underneath and the one who
exerted pressure on her knees came back again
and she did the same,
as such, then the baby came out.”
[49]
Regarding the final moment leading up to
the delivery, she clarified that the second nurse who had come to
assist the one waiting
at the foot end to receive the baby was the
one who put fists on her stomach while she was lying on the delivery
bed. She did so
at the point in her perception when they saw that
“nothing was happening”. This nurse alternated with the other
nurse who used
her knee to exert pressure on her stomach whilst
keeping her other knee on the delivery bed.
[50]
She explained it thus:
“
PLAINTIFF
:
What was happening, My Lady, was that the one who would be using
knees would climb
on top of the bed, put the knee on the bed and the
knee on my tummy, seeing that the baby was not coming out, she would
step down
to go to my left and the other one, who was (using) fists
would come and exert pressure to her fists on my tummy. That is what
was
happening.
ADV
V/D LINDE
:
It was the same nurse who was standing to deliver the baby, who got
onto the bed and put the knee in your tummy?
PLAINTIFF
:
Yes.
ADV
V/D LINDE
:
Well, the nurse who stood at your legs where the baby was to be born
is Sr Tshanyingca?
PLAINTIFF
:
I do not know who she was because they were changing each other by
the time
that exercise was done.
ADV
V/D LINDE
:
But the sister who climbed on the bed and put the knee on your tummy
was the same sister who delivered the baby?
PLAINTIFF
:
The one who put the knees on my tummy, yes, it was that sister.
ADV
V/D LINDE
:
So, she was putting her knee on your tummy, while there was no sister
to make sure that the baby comes out or to watch
the baby coming out?
PLAINTIFF
:
Yes, there was a sister that was there by the time this one climbed
on top
of the bed and exert pressure with her knees.
ADV
V/D LINDE
:
So this sister who got onto the bed with her knee in your tummy left
a position where she was watching for the baby
to be born and some
other sister took her position?
PLAINTIFF
:
Yes, that is correct.
ADV
V/D LINDE
:
Well Sr Tshanyingca will deny that this ever happened, but …
right, now was this sister who got onto the bed
and pressed her knee
in your tummy, was that the first sister to exert pressure on your
tummy to get the baby to be born, according
to you?
PLAINTIFF
:
She did that after she has observed that I am unable to push, as she
suggested
to me that I must push.
ADV
V/D LINDE
:
Alright, now when she had finished putting her knee on your tummy and
the baby still was not born, did she go back to
her position, you
know, between your legs?
PLAINTIFF
:
Yes and the second one came and put her fist on my tummy.
ADV
V/D LINDE
:
So they exchanged places and the one who was standing between your
legs, while the other one was on the bed with the
knee in your tummy,
then came to the bed?
INTERPRETER
:
Yes.
ADV
V/D LINDE
:
Is that correct, I did not hear an answer from the plaintiff?
PLAINTIFF
:
Yes, that is correct.
ADV
V/D LINDE
:
So did the, the sister who put her fists in your tummy, was that one
or two fists?
PLAINTIFF
:
She put two fists on my tummy.
ADV
V/D LINDE
:
Did she also get onto the bed?
PLAINTIFF
:
No, she was standing on the floor.
ADV
V/D LINDE
:
And was the baby then born?
PLAINTIFF
:
Yes, they cut me underneath and being, that sister used her knee
and
the baby came out, after I was cut.
ADV
V/D LINDE
:
Was it the same sister the used the knee the first time?
PLAINTIFF
:
Yes, that is correct, it is the same sister.
ADV
V/D LINDE
:
Did she again climb onto the bed?
PLAINTIFF
:
Yes, she climbed again on the bed.
ADV
V/D LINDE
:
And the sister who had put her fists into you, did she again exchange
places with that sister?
PLAINTIFF
:
Yes, they did exchange.
ADV
V/D LINDE
:
And these two sisters knew what, both saw what the other one did?
PLAINTIFF
:
Repeat yourself again.
ADV
V/D LINDE
:
The one sister saw what the other one did, when they put their knees
and their fists into your tummy?
PLAINTIFF
Yes.
ADV
V/D LINDE
:
Just to make quite sure, the second time that the sister who worked
with the knee, put her knee in your tummy, was after
you were cut?
PLAINTIFF
Yes,
that is correct.
ADV
V/D LINDE
:
Now that sister first cut you and then climbed onto the bed and put
her knee into your tummy?
PLAINTIFF
Yes,
that is correct.
ADV
V/D LINDE
:
And as I pointed out earlier, Sr Tshanyingca will come and give
evidence and will say that nothing of this happened.
PLAINTIFF
Okay.
ADV
V/D LINDE
:
She will say that you were cut on both sides and the baby was born
without any external pressure.
PLAINTIFF
She
would be not correct by saying so.”
[51]
She
claimed to have told her attorneys at the outset about her experience
in the hospital and the exact manner in which she had given
birth.
She could not give an account for why they had not made mention in
her particulars of claim of this feature, namely
the external
pressure purportedly having been applied to secure the birth of her
baby.  She was further clear that she had also
informed the
doctor who she consulted with in respect of the court case (It was Dr
Bowen who she saw on 3 October 2019, so Mr. Van
Der Linde put it to
her) about this external pressure having been applied.
[27]
[52]
Under
examination by the court, she clarified that one of the nurses in
attendance during the delivery, (she identified this nurse
as the
same one who kneed her) had remarked, before putting her knee on her
stomach, that her baby’s head was swollen.
[28]
[53]
She also confirmed that a drip had been set
up when she went into the labour ward and that the belt to monitor
the baby’s heart
rate (CTG) had been placed on her stomach before
the nurse exerted the pressure on her stomach with her knee. She
could not say if
the nurses had in fact monitored the baby’s heart
rate during this process, but certainly no one had discussed the
issue of the
baby’s wellness with her at that point.
[54]
Both these steps taken, that is setting up
the drip and the electronic monitoring of the foetal heart rate, in
my view support the
probability that complications were anticipated,
or recognized, by the nursing staff during the plaintiff’s labour.
[55]
It
is perhaps apposite at this stage to refer to the relevant sections
of the Maternity Guidelines that explains why. The Guidelines
incidentally spell out the standardised care expected from doctors
and nurses in respect of the management of mothers in labour and
the
delivery of their babies at state hospitals that were applicable at
the relevant time.
[29]
The
Maternity Guidelines:
[56]
The
chapter dealing with the general care of women in labour
[30]
provides as follows, firstly regarding what is expected to be
recorded on a partogram from the active phase of labour.
“
Partogram
During
the active phase of labour, all observations, fluid intake and
output, and medications must be entered on the partogram.
Latent phase observations may be entered on the partogram, or on a
separate observation sheet.
ROUTINE
MONITORING IN THE FIRST STAGE OF LABOUR
Latent
phase (cervix˂4cm dilated):
∙
Temperature,
heart rate, respiratory rate and blood pressure 4 hourly.
∙
Uterine
contractions and fetal heart rate 4 hourly.
∙
Vaginal
examination 4 hourly.
Any
change in phase of labour, or abnormal observation, warrants more
frequent observation or action.
Active
phase (cervix ≤4cm dilated, ˂1cm long):
∙
Maternity
condition
⸰
Heart
rate, BP, respiratory rate hourly.
⸰
Temperature
4 hourly.
⸰
Urine
volume and test for protein and sugar when urine is passed.
∙
Fetal
condition
⸰
Fetal
heart rate half-hourly, before and immediately after contractions,
ideally using a hand-held Doppler device.
⸰
Colour
and odour of the liquor 2 hourly if the membranes have ruptured.
∙
Progress
of labour
⸰
Duration
and frequency of uterine contractions half-hourly, per 10 minutes.
⸰
Vaginal
examination 2 hourly noting cervical dilation, sagittal moulding and
caput.
∙
Treatment
given
⸰
All
medications.
⸰
All
fluids, by whatever route.
∙
Summary
of findings
⸰
Identified
problems.
⸰
Management
plan.
The
partogram: alert and action lines
Record
all findings of maternal and fetal condition, and progress of labour,
on the partogram.  As soon as the active phase of
labour is
diagnosed, place the first entry for the active phase at the point
where the recorded cervical dilatation is exactly on
the alert line.
Alternatively, on a blank partogram where there are no pre-dawn
lines, draw an alert line at a slope of 1cm/hour
from the first
cervical dilatation in the active phase.
The
action line is drawn 2 hours to the right and parallel to the alert
line, and represents the extreme of poor progress where ‘action’
is mandatory (e.g. transfer from a CHC to hospital, oxytocin
infusion, caesarean section).
Examples
of completed partograms are shown in figure 5.8, page 68.”
[31]
[57]
Concerning analgesia to be given in labour
the Guidelines provide as follows:
“
Analgesia
in labour
Pain
relief should be offered to all women in labour:
∙
Support
and companionship have been shown to reduce the need for analgesic
medication in labour.  Promote companionship in labour.
∙
Pethidine
100 mg with promethazine 25 mg intramuscularly 4 hourly is acceptable
in both the latent and active phases, even up to full
dilatation of
the cervix.
∙
Inhaled
Entonox® (a mixture of 50% nitrous oxide and 50 oxygen) by mask is
useful in the late first stage (≥8 cm cervical dilatation).
.
Epidural anaesthesia is generally not available in CHCs and
hospitals.
Some institutions may however have the necessary
skills and equipment to provide this form of pain management.”
[58]
The management of the second stage of
labour is prescribed as follows:
“
MANAGEMENT
OF THE SECOND STAGE OF LABOUR
The
second stage starts when the cervix reaches full dilatation (10 cm)
and ends with delivery of the baby.  Time (up to two
hours) can
be allowed for the head to descend onto the pelvic floor if fetal
distress and cephalo-pelvic disproportion (CPD) have
been ruled out.
The bladder should be empty or emptied, using a catheter if
necessary.  The observations of the active
first stage of labour
should continue.
Efforts at
bearing down are only encouraged when the fetal head starts to
distend the perineum and the woman has an urge to push.
When
the woman is ready to push (bear down):
·
Always communicate clearly with the woman
to gain co-operation.
·
Be supportive and encouraging.
·
Put the woman in a suitable position:
propped up, sitting, squatting, kneeling, semi-Fowler’s or wedged
supine.  Avoid the
flat supine position (lying flat on the
back), as the pregnant uterus will compress the aorta and inferior
vena cava.
·
Encourage pushing/bearing down only during
contractions.
·
Listen to the fetal heart after every
second contraction.
·
Protect the perineum when the fetal heard
crowns.
·
Dry the baby and place the baby on the
woman’s abdomen, skin to skin, for her to hold immediately after
delivery for at least an
hour.  Postpone all routine neonatal
procedures that are not lifesaving (e.g., washing, weighing and
non-urgent medical procedures.)
·
Help the mother to initiate breastfeeding
within an hour after birth (which can decrease the risk of Maternity
haemorrhage, new-born
hypoglycaemia and increase exclusive.
Breastfeeding) unless there is a medical indication not to
breastfeed.
·
Assess the baby’s Apgar score at 1
minute.
·
Wait 1-2 minutes before clamping the
umbilical cord, but clamp and cut the cord earlier if the baby needs
urgent resuscitation.
·
Record the times of onset of the second
stage, onset of bearing down efforts and delivery, as well as the
status of the fetal heart
rate during the delivery.
Episiotomy
Routine
episiotomy is discouraged.  Consider episiotomy only for the
following reasons:
·
Thick or rigid perineum preventing delivery
and prolonging the second stage.
·
Fetal distress in the second stage of
labour.
·
Maternity conditions where rapid delivery
is required, e.g. cardiac diseases.
·
Breech or forceps delivery.
·
Previous third degree tear.
·
Preterm delivery where the perineum is
tight.
Local
anaesthetic (lignocaine 1% solution, maximum 20 mL) must be
infiltrated into the perineum before cutting the episiotomy.
[32]
Perform
a mediolateral episiotomy, where the cut is started in the midline at
the fourchette, bearing down laterally at about 45 degrees.
Avoid median or lateral or bilateral episiotomy.”
(Emphasis
added.)
[59]
A further aspect of significance concerns
foetal monitoring that is under scrutiny here. The Guidelines provide
in this respect that:
“
FETAL
MONITORING
·
For low risk labour, listen to the fetal
heart with, ideally, a hand-hand Doppler device, or a fetal or normal
stethoscope, before
and immediately after contractions.
·
CTG is used for high risk labour only
(figure 5.2)
and must be available in
all hospitals.  CTG monitors are not recommended for intrapartum
use in CHCs.
·
After CTG interpretation, write a note
about the findings in the woman’s notes, so that a record of the
CTG is still available even
if the CTG tracing is lost.
·
All CTG tracings must be kept safely in the
woman’s file and be stored with the file after delivery.
Figure
5.2 Common indications for CTG monitoring in labour
Common
indications for CTG monitoring in labour
·
Previous caesarean section
·
Suspected intrauterine growth
restriction
·
Multiple pregnancy
·
Pre-clampsia
·
Antepartum haemorrhage
·
Prolonged rupture of the membrane (<24
hours)
·
Suspected chorioamnionitis or offensive
liquor
·
Meconium stained liquor
·
Poor progress in labour
·
Oxytocin infusion.”
(Emphasis added.)
[60]
Under “Emergencies during labour” the
Guidelines provide for how foetal distress is to be managed as
follows:
“
FETAL
DISTRESS
Fetal
distress is suspected when the fetal heart rate is abnormally high or
low, of if decelerations are heard, or a CTG tracing is
suspicious or
pathological.
Management
of fetal distress
·
Explain the problem to the woman
·
Perform a vaginal examination for cervical
dilatation and to exclude cord prolapse:
⸰
If
the cervix is fully dilated, deliver normally or by vacuum
extraction.
⸰
If
there is cord prolapse manage appropriately (see below).
⸰
If
delivery is not imminent, proceed as below.
·
Place the woman in the left lateral
position.
·
Stop oxytocin infusion if applicable.
·
Give oxygen by face mask at 6 L/min for 20
– 30 minutes.
·
Start an IV infusion of Ringer’s
lactate
to run at 240 mL/hour for 1 –
2 hours, unless the woman is hypertensive or has cardiac disease.
·
Give salbutamol 250 ɥg (½ of a 500 ɥg
ampoule diluted in 20 mL saline) IV slowly.
·
Transfer from CHC to hospital and monitor
with CTG.
·
If a pathological tracing persists, arrange
emergency caesarean section.
CORD
PROLAPSE
In
cord prolapse, the umbilical cord comes out of the cervix in front of
the fetal presenting part, with the membranes ruptured.
Frequently, the cord may appear at the vulva.
If
the fetus is alive (fetal heart heard) and viable:
·
Call for help.
·
Explain the problem to the woman.
·
Perform vaginal examination.
If
the cervix is fully dilated and the fetal head has engaged in the
pelvis immediately deliver the baby by vacuum extraction or forceps
delivery if necessary.
If
the cervix is not fully dilated, arrange for urgent caesarean section
or for transfer from CHC to hospital, and proceed as follows:…..”
[33]
[61]
It is perhaps relevant to note that the
Maternity Guidelines do not spell out specifically what steps are
required to be taken, or
how to manage, a case of precipitated labour
as a standalone obstetric emergency during labour.
[62]
Finally,
it is significant to note the purpose of the Maternity Guidelines,
which is
inter
alia
to promote patient safety and better outcomes for mother and child in
childbirth. They comprise “the basic minimum that needs to
be known
by all professional nurses and doctors”.  The aim by their use
is to lower high maternal and perinatal morbidity
and mortality rates
and to improve the quality of care for women, their babies, and their
families.
[34]
The
testimony of the attending nurse:
[63]
Sister
Tshanyingca is a professional nurse who was newly qualified at the
time of ST’s delivery.
[35]
[64]
She testified that she encountered the
plaintiff for the first time in the antenatal ward on the evening of
2 May 2016 when she reported
for duty. She was aware that the
plaintiff had been admitted at 4pm in the latent phase of labour, 2cm
dilated and that her situation
was required to be reviewed at “past
eight”.
[65]
She herself examined the plaintiff at the
scheduled assessment time and found her to be 4cm dilated and thus at
the onset of the active
phase of labour. The results of her
examination were recorded in the maternity record. Asked to describe
the plaintiff’s condition
at that particular juncture, she ventured
that:
“…
the
time when we arrived she was just lying in the bed, not having any
pain and not having strong contractions or anything.
[36]
And then as the time goes by – as the labour was progressing, and
she – she became very irritable, not cooperative, she had an
attitude – like I would say it like that. And she – she was not
listening at all. She was not listening to instructions.
ADV
V/D LINDE
:
So how did you deal with Ms Tuki in those circumstances?
MS
TSHANYINCA
:
I – I talked to her and – and tried to reassure her and – and
talked to her like what she needs to do and what she need not
to do.”
[66]
She claims that after her first initial
examination of the plaintiff she checked in on her every half hour
and “would write on the
maternity record after”.
[67]
Despite her revelation that the plaintiff
had not been cooperating, Sister Tshanyingca confirmed that in her
view there was nothing
that concerned her or was alarming regarding
the plaintiff and the progress of her labour.
[68]
Asked
regarding how the foetal heart rate was monitored, she claimed that
she did so before and after contractions every half hour.
Asked if
she had written her findings down in her maternity records she
tentatively replied: “Ja, I think so. Yes.” Regarding
which of
the baby’s heart rates, the “before” or “after”
contractions she had recorded, she emphatically stated that it
was
the “after” contraction indicated, but then added that sometimes
it was the “before” contraction result in instances
where the
plaintiff was not having any contractions at the times of checking on
her,
[37]
and in other cases
the post contraction result.
[69]
She described the plaintiff’s labour as
normal:
“
Her
– her labour was – was very normal.  She – she progressed
in a normal way that will – that is expected of a normal
person
without any – any problems. Because from – from being 4
centimetres she was 7 centimetres, and then she was 9 centimetres,
and then she was fully dilated after every two hours apart.
[38]
And then she delivered in an expected time.”
[70]
She
was assisted in the delivery by a nursing assistant but qualified
that this person (who she later identified as Sister Scwubo)
was
there only to take the baby when it came “out”.
[39]
She herself had been alone in the delivery area.
[71]
The plaintiff delivered vaginally.
She cut an episiotomy.  She volunteered that the reason for this
was to make more room
for the baby to come out but offered no
explanation why that was necessary at all especially since on her
version the plaintiff was
indeed pushing.  (The details provided
by her of the delivery itself were scant and indeed gave no hint of
what justified her
comments written in the Summary of Labour
afterwards that the plaintiff “was not cooperating at all during
labour and delivery”
or the annotation by Dr Yama that ST had HIE
“due to poor maternal effort,” both of which entries
coincidentally support the
plaintiff’s opposite version that by the
time she got to the delivery ward she could no longer push anymore.)
She concluded with
the succinct statement that the plaintiff pushed
and gave birth to her baby.
[72]
The
patient delivered a “flat baby” with an Apgar score of 4 and no
respiration, but a pulse and heart rate were in evidence.
[40]
She told the nursing assistant to call the doctor who arrived
immediately. She had started resuscitating the baby “obviously
after
birth”, and then the doctor took over.
[73]
When
they were done assisting the baby, she repaired the episiotomy and
gave the plaintiff oxytocin for the uterus to contract.
[41]
[74]
Regarding the plaintiff’s version put to
her by Mr. Van Der Linde that she had had no energy to push out the
baby in the delivery
ward, she remembered the exact opposite in fact:
“
I
cannot say anything about that Because she was – she was pushing
the whole time. She was pushing the whole time. I do not even
remember her having a problem with pushing.”
[75]
She denied that she had told the plaintiff
after a cervical examination that the baby’s head was swollen.
[76]
She also disavowed that anyone had applied
pressure to the plaintiff’s stomach to assist the delivery, either
by fist or knee.
[77]
Asked to revise what she had meant in her
testimony about the plaintiff being uncooperative during her labour
she explained it thus:
“
Ja.
As I said earlier, she was – she – she had… She was not
listening to the instructions – first of all. You would say do
not
push. Do not push now. It is not the time to push. And then pant when
the – when the contractions come just pant, not push.
And then she
will just push. And then at one time she went – she just went to
the toilet, and then we found her there pushing.
And then when we –
we asked what are you doing here? She said cannot you see that I am
pushing? So that – that – that is what
I meant about
uncooperative, because she was like – just like not listening.”
[78]
She
explained the significance of the partogram according to her
understanding and confirmed that she was solely responsible for what
is recorded in this critical document. She qualified that there was
nothing “concerning” about it because the plaintiff had
progressed
well on it. (Under cross examination she expressed the
view that, quite the opposite, the plaintiff “had a bit of
precipitated
labour in a way.”)
[42]
[79]
She identified the entries in the maternity
records which she had made concerning the plaintiff on 2/3 May 2016
(she incorrectly recorded
the month as April) as well as the clinical
notes scribed by her concerning her own involvement in the process.
These are as follows:
“
20H12
Patient reassessed. BP 126/72. P 84. T – 36.7℃. Urine – 20 ml &
no
abnormalities
noted.
[43]
FHR – 147 b/pm.
Contractions – moderate. 2 in 10 minutes. Pp 4/5↑ pelvic brim. Cx
– 4cm dilated. Membrane still intact. Assessment
– in active
phase of labour. Plan: - monitor feto-Maternity condition and labour
progress. Plot partogram. Insert IV-line, R/Lactate
[44]
and
review in 2 hours at 22h12.
22H12
Patient assessed BP115/67. P 68. T – 36.7℃. Urine 45ml. Blood
++.  Contractions strong. 3 in 10 mins. FHR
– 142 b/m. PP3/5↑
pelvic brim. Cx os 7cm dilated, membrane draining clear liquor.
Patient is not co-operating at all.
[45]
Caput
1+. Assessment in active phase of labour. Plan: - monitor
feto-Maternity condition and labour progress and review in 2 hours.
00H12
Patient assessed BP130/80. P97. T 36,7℃. R-22. Urine 10mls. Blood
+++FHR – 137b/m. Contractions 3 in 10 minute. PP2/5↑pelvic
brim.
Cx os-9cm dilated. Membranes draining clear liquor. Patient is
pushing and she doesn’t listen. Plan: - monitor feto-maternal
condition and labour progress and review in 2 hours.
00H32
Patient became fully dilated and pp 1/5↑ pelvic brim. PB 126/77.
P87. T – 36.7℃. R – 22. Urine 40mls blood +++. Patient
is
pushing as from when she was 5cm. HR – 127 b/p. Contractions strong
4 in 10 minutes. Caput ++, cx 10cm. At 00H45 delivered a
flat baby.
Female infant with apgar of 4/10 and resuscitation done baby
suctioned on the mouth then nose and was stimulated on the
back. Then
there was no improvement, then ambugagged while waiting for the
doctor. Baby came pink and was sneezing but breathing
still slow and
irregular. Resuscitation continued then Dr arrived and took over. B/M
– 2.9kg HC – 35cm L – 50cm. Third stage
of labour managed. Post
vital signs BP 108/62.  P69. T36.7℃. R-18.”
[80]
As an aside, it is difficult to decipher
the partogram, but based on how the experts helpfully interpreted
what was written down by
her regarding ST’s foetal heart rate,
these vitals hovered between 130 and 150bpm with no recordal at 23h12
but a recording of
137 bpm at 00h12 when the plaintiff was 9cm
dilated.  (According to her clinical note however, the foetal
heart rate was 127
at 00h32, 13 minutes before ST’s birth.)
The significant fact is that in the period that vitally matters, from
23h12
to 00h45 when ST was delivered, there is no record whatsoever
of any foetal heart rate on the partogram at all despite the
plaintiff’s
contractions being strong and more frequent during this
time and requiring more intense monitoring.  This is in fact
represented
by Sister Tshanyingca’s graphic representation of the
plaintiff’s contractions as a solid block from 22h12 until well
after ST’s
birth.
[81]
An
early deceleration at 20h12 was noted by her which would suggest that
a CTG was used at this juncture and must in the assessment
of someone
probably have been rendered necessary.
[46]
Under cross examination Sister Tshanyingca volunteered that a CTG was
used, albeit without paper, but those later interpretations
were
self-evidently not noted on the partogram or in her clinical notes.
[82]
As to the plaintiff’s version put to her
that she had only examined the plaintiff thrice, she defended her
position thus:
“
No.
That is not true, because every time – it is… She was examined
cervical – cervical dilated – cervically like she was examined
four times by me. And the foetal heart rate – I think it has to be
eight times. Let me see here. About eight times, yes.”
[83]
She claimed to have specifically recalled
the plaintiff’s delivery
in casu
among several others because the data was “just normal”, as she
described it, whereas, evidently to her surprise, the plaintiff
delivered a baby that was “not healthy”.
[84]
Under cross examination she agreed that she
was aware of what the Maternity Guidelines state her conduct should
be at all times concerning
how mothers and their foetuses should be
monitored and treated during the labour process. She further agreed
that she was aware of
her obligation to write down whatever she did
to a patient. She also knew it to be her obligation to write clinical
notes of her
examinations and to repeat in them whatever is done on a
partogram.
[85]
She at first maintained that she had
complied with the Guidelines in respect of her monitoring of the
plaintiff at every hour, but
later conceded that she had not assessed
the latter’s condition, more particularly her heart rate, blood
pressure and respiratory
rate, hourly as she ought to have.
[86]
Regarding her understanding of how the
partogram is supposed to work and prompt one into acting when the
action line is crossed, or
to be vigilant when the alert line is
crossed, she seemed to confuse the lines and their significance,
correcting her apparent uncertainty
about the line’s objectives
only in re-examination.
[87]
She absolutely refuted that she or anyone
else had applied fundal pressure to the plaintiff’s abdomen during
the delivery of her
baby.
[88]
According to her such intervention could in
any event only be performed by a doctor, or a specialized nurse
(which she acknowledged
was not within her purview), in cases of
“difficult labour”.  Further, such intervention would be
limited to putting the
hand “to assist the baby when it is fully
dilated to go, to be delivered with hands on where the baby is”.
Such pressure
would be applied on the abdomen at the end of the
foetus in order to push or assist the birth process, so she
explained.
[89]
She
agreed that immediately after ST was delivered, she had sent her
assistant to call the doctor and night superintendent and that
both
had “come quickly”.
[47]
She also agreed that the doctor had probably recorded in his notes
what she had reported to him happened during the delivery
(notably in
the presence of the night superintendent) but stopped short of
conceding that she had told him that she applied fundal
pressure
because she was firm she did not. She could not explain why he would
have made such an incorrect statement in his recordal
of the
situation.
[48]
[90]
As
an aside, given the expectation in the Maternity Guidelines on the
part of Dr Yama to have filed an appropriate note after his
involvement it can safely be accepted in my view that what he
recorded cannot be glossed over as conjecture on his part as to what
might possibly have gone wrong during the plaintiff’s delivery or
how exactly Sister Tshanyingca had managed the situation.  There
was as much as an obligation on him to accurately record what he had
been informed by her as to the background especially with relevance
to the foetal condition as there was on her to have given him an
accurate report of the situation.
[49]
[91]
When it was put to her that she was not
telling the truth and had in fact told Dr Yama that she had applied
fundal pressure, which
is why he wrote it down, she replied:
“
I
am sorry, (I) did not.
We
[50]
did
not apply fundal pressure.  I did not even know that he wrote
that because he was not there when the baby was delivered or
anything.”
[51]
[92]
She provided a further reason why she
refuted Mr. Wessel’s assertion that she was not telling the truth
and had not applied fundal
pressure which suggests a reason in itself
why she did not want to associate herself with the use of such a
delivery technique:
“
MS
TSHANYINCA
: Why I am saying no is that
by the time I started my training fundal pressure was already
discouraged. It was done before by the
nurses and all that. But by
the time I was starting my training and what, and working, the fundal
pressure was always like discouraged
to be done by nurses and not
specialised people. So I cannot do that. So that is why I am sure
that I did not do it.
ADV
WESSELS
: You see sister, that gives us
the reason why you did not write down that you applied fundal
pressure. Because you knew that it was
prohibited for you to do it.
But you did tell the doctor that, that you did it.
MS
TSHANYINCA
: No.
ADV
WESSELS
: All right.
COURT
:
If you want to shake your head you also need to say what it is that
you want
to
express in words please.
MS
TSHANYINCA
: No.
ADV
WESSELS
: Then I ask you again, is there
any reason why the doctor would have, would have made this very
important false statement in the
official records?
MS
TSHANYINCA
: I really cannot say. Maybe
he would have assumed that it was a difficult labour and on his
perspective of view when the difficult
labour they do what, a fundal
pressure in their perspective of it. But I do not know.
ADV
WESSELS
: But why, why would he assume
that it was a difficult labour?  Because if he looked at the
...[intervenes].
MS
TSHANYINCA
: ...[indistinct] difficult
delivery. I am sorry.
ADV
WESSELS
: Well, if you look at the
clinical notes you would have seen that according to your notes it
was not a difficult delivery.
MS
TSHANYINCA
: Yes. But, but when you have
to do an episiotomy, especially bilateral episiotomy, that means
there was, you needed more room for
the baby to come out.
ADV
WESSELS
: Yes. And the person to then
ask what happened here during this labour would have been you.
Correct? The person that the doctor would
have asked what happened in
the final stages of delivery would have been you.
MS
TSHANYINCA
: And the patient.
ADV
WESSELS
: And the patient?
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: Did he ask the patient what
happened?
MS
TSHANYINCA
: I do not know. But I...
ADV
WESSELS
: Well, you were there.
MS
TSHANYINCA
: Yes, I was there.
ADV
WESSELS
: And you told us that you can
remember clearly everything that
happened
there that night.
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: So tell us, did he ask the
patient?
MS
TSHANYINCA
: Yes. He talked to the
patient.
ADV
WESSELS
: Yes. And did the patient told
him that fundal pressure was applied?
MS
TSHANYINCA
: I do not know.
ADV
WESSELS
: You were there sister. Can you
not remember?
MS
TSHANYINCA
: No.
ADV
WESSELS
:
Yes. Well, I want to put to you that, and we will perhaps hear from
the doctor, that this entry that we have on page 132 could only
have
come after he asked you what had happened during this labour.
[52]
MS
TSHANYINCA
: But I could have written it
in the maternity record if I did it anyway, because I wrote
...[indistinct].
ADV
WESSELS
: Well, you did not write it in
the maternity record, because you knew it was prohibited for you to
do it and if you wrote it in the
maternity record, that could
mean
trouble for you.
MS
TSHANYINCA
: No, that is not the case.
You write everything that you did to the patient. And I wrote
everything that I did to the patient.”
[93]
It is coincidentally significant from the
exchange above that Sister Tshanyingca gave away her
own
perception that it was a “difficult labour” despite her clinical
notes not endorsing any problem at all to suggest a reason for
cutting an episiotomy.
[94]
On that issue of a reason, Sister
Tshanyingca agreed, after dithering several times before in her
reply, that the assumption could
fairly be made, since she had
performed such an intervention, that the baby was obstructed from
coming out.  Despite this concession
she yet failed to take the
court into her confidence regarding what the obstruction was or to
account for how she dealt with the
admitted obstacle. (Indeed,
neither did she even record the episiotomy in her notes.)  She
agreed that cutting an episiotomy
was not something done routinely.
[95]
Regarding her failure to record in the
medical records strictly according to the Maternity Guidelines what
had happened between 20h12
and 22h12 and asked where she was during
this interval, she volunteered to explain what had happened as a
matter of fact (despite
it not being written down anywhere in the
formal records) as follows:
“
MS
TSHANYINCA
:
The foetal heart rate of the patient was checked and...
Ja
.
Foetal heart rate of the patient was checked. And because the patient
would say:
“
I
feel like there is something that is coming out.”
So
I ...[indistinct] the patient and then I saw that it was five
centimetres. But I was not going to record that, because there is
nowhere that I am going to put on the
partogram.
ADV
WESSELS
: Sorry. You did not record that
because?
MS
TSHANYINCA
: There is nowhere where I
would have recorded a cervical
dilatation
in an hour.
ADV
WESSELS
: Well, why did you not record
it in the clinical notes? That is why the clinical notes are there or
the page for the clinical notes.
MS
TSHANYINCA
: I did not do it.”
[96]
Sister Tshanyingca was at a loss to provide
a logical explanation why, since the plaintiff had according to her
being pushing from
5cm prior to being fully dilated, she did not
record this significantly dangerous development anywhere in her
notes, except retrospectively:
“
ADV
WESSELS
: Now, you do not have any entry
here that she at any stage was at six centimetres when you assessed
her.
MS
TSHANYINCA
: Yes. It was the time when
we find her in the toilet.  And then we said what, what is she
doing in the toilet. And then:
“
I
am pushing.”
And then I said:
“
Okay.
Come to the bed so that I can assess you.”
And I assessed and
then I saw it is five centimetres. And then there was nowhere that I
could write that on the thingy because there
is no, on the partogram
there is no place. I have to recheck for the partogram after two
hours. Two hours is not already finished.
ADV
WESSELS
: But you could write on the
clinical notes at any time.
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: Not so? So why did you not
write it on the clinical notes? Do you have an answer?
MS
TSHANYINCA
: No.”
[97]
Her reply in respect of what she did to
ameliorate the accepted danger for the baby by the plaintiff pushing
too quickly before she
was fully dilated is also instructive:
“
ADV
WESSELS
: What did you do try and get
the plaintiff to stop pushing? And before you answer that, is it
correct that pushing is an involuntary
movement by the mother? She
does not do it on purpose. It is an automatic reaction. Correct?
MS
TSHANYINCA
: Yes. I ...[intervenes]
ADV
WESSELS
: Sorry. Yes? You want to say
something more?
MS
TSHANYINCA
: No, I think... No. I do
not want to say anything.
ADV
WESSELS
: All right. So, now you have a
situation that this patient is pushing when she should not be and it
can be dangerous for the foetus.
What did you do to try and prevent
her from pushing?
MS
TSHANYINCA
: I talked to her and
reassured and then I told her not to push and what to do when the
contractions come.  Like I said earlier
that I told her that she
should pant not to push when the contractions come.  Because
obviously the contractions are going to
come. They are involuntary as
you said.  But he must not like push, but must pant.
Ja
.
ADV
WESSELS
: Yes. Now you know that this
pushing is caused by anxiety and by pain.
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: Yes. So what did you do to
alleviate the anxiety and pain that the plaintiff was
...[intervenes].
MS
TSHANYINCA
: I consoled her. I talked
to her. I really talked to her.
ADV
WESSELS
: You really talked to her?
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: You did not give her pain
killers?
MS
TSHANYINCA
: No, I did not give
anything.
ADV
WESSELS
: On page 49 of the guidelines
it says:
“
Pain
relief should be offered to all women in labour.”
That
is under the heading ‘analgesia in labour’. So the guidelines
tell that a woman is in pain in labour she must be offered
analgesia.
You did not give it to her.
MS
TSHANYINCA
: It is prescribed by the
doctor. But anyway, there was not a direct indication or painkillers,
because the only thing that we would
give it is betadine and betadine
has got its side effects too to the baby. And the only thing for pain
killers at that time ...[indistinct]
it was going to be betadine or
something.
ADV
WESSELS
: Well, betadine is not the only
way of killing pain. There are other sedative products available that
you can give.
MS
TSHANYINCA
: Panado.
ADV
WESSELS
: Not so?
MS
TSHANYINCA
: No, I do not know any
other.  Or we did not have in our institution any other pain
relievers.
ADV
WESSELS
: Do you not know of any
analgesics that can be given for pain
other
than betadine?
MS
TSHANYINCA
: I do. I do know.
ADV
WESSELS
: What are they?
MS
TSHANYINCA
: It is betadine, it is...
What else? It is Panado ...[indistinct].  No, I cannot remember
now.
ADV
WESSELS
: You cannot remember. But
sister, on the partogram there is even provision for pain relief to
be filled in.
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: It is so prominent an issue.
When you have filled in every time that she was examined ‘nil’.
So it is obvious that you did not
even consider alleviating her pain
by giving her pain killers or getting the doctor to prescribe
something for this woman who was
pushing for more than two and a half
hours before she was fully dilated, when you know that it could be
dangerous for the foetus.
MS
TSHANYINCA
: ...[indistinct]
ADV
WESSELS
: What did you say?
COURT
:
Sorry. I did not hear your reply. Just repeat. I did not hear your
reply.
MS
TSHANYINCA
: No, I said I do not know
what to say.
ADV
WESSELS
: Sister, I want to put to you
that you were not very concerned about the welfare of this patient
that was under your control.
MS
TSHANYINCA
: But I just said earlier
that because you evaluate. The patient was already six centimetres
when she started to be like very, very,
very not cooperating in a
way. So by that time six centimetres is four centimetres to 10
centimetres. So you cannot give analgesia
on that time, because by
the time you want her to push she will be like drowsy and like... I
do not know how to put it. But you cannot
give ...[indistinct] when
the baby is like far. You can give if it is two centimetres, three,
four, five. But at six centimetres
you cannot give, on active phase
you cannot give betadine. And then you will need to, the patient to
push
again and... I do not know. So...
Ja
.
And there is also side effects of this thing. So you outweigh the
risk.
ADV
WESSELS
: Yes. But sister, you did not
think that perhaps you should just
refer
this to a doctor.
MS
TSHANYINCA
: No.”
[98]
When it was put to her that the plaintiff
was still 4cm from full dilatation when she began pushing (on her now
corrected version
that this happened from 6cm dilatation), which
allowed ample time still for her to receive pain medication, she
justified her decision
not to give analgesia on the basis that the
plaintiff was “obviously” dilating quicker than expected.
[99]
Asked
what time it was when the plaintiff reached “6cm” dilatation she
answered indirectly that she thought it was an hour from
when “we’
reviewed her.
[53]
[100]
Evidently, she tried to justify this time
based on her unique manner of calculating the plaintiff’s progress
in the dilatation of
her cervix. She was adamant that she was not
guessing in this regard. Rather, so she sought to clarify, she was
certain that she
knew the exact time the plaintiff was 6cm dilated
(which is not recorded anywhere) “because (she) wrote it at the end
of (her)
notes, viz at 00h32 that “She started pushing at six cm.
So… Ja.” Pressed again to establish how she knew the exact time,
she
settled for it being in “her memory”, this despite no
contemporaneous recording having been made by her and four years
having
lapsed since then.
[101]
When it was put to her that - based on a
normal rate of cervical dilatation of 1cm per hour she should have
expected when she made
her entry at 00h12 that the plaintiff’s
cervix had dilated to 9cm and that she was probably going to be fully
dilated and in the
second phase of her labour in one hour (an
anticipation she fully reckoned with), it was odd that she had
instead noted: “review
in two hours’ time”, she sought to
justify the proposed management plan as follows:
“
MS
TSHANYINCA
: Because this is the normal
way that it is done. But from seven centimetres, from seven to eight
centimetres you are literally staying
with, like literally close
monitoring, close monitor the patient. So from seven centimetres...
From seven centimetres up until she
delivered she was close
monitored.
ADV
WESSELS
: Well, why did you say ‘review
in two hours’? You should have just said ‘close monitoring’,
because this is what is necessary
and do close monitoring.
MS
TSHANYINCA
: Oh, but ...[intervenes]
ADV
WESSELS
: Is it just an automatic entry
that you always make, you write ‘review in two hours’, without
thinking you are writing?
MS
TSHANYINCA
: As long as the patient is
not 10 centimetres dilated you review in two hours’ time. Cervical
dilatation is done in two hours’
time. As long as it is not, it is
not 10 centimetres dilated.  But you close monitor the patient
for anything that could happen.”
[102]
As for the entries recording blood in the
plaintiff’s urine (expressed in increasing plusses over the three
assessments reflected
in the clinical notes), she offered the opinion
that “the blood is expected when the patient is pushing”.
She could offer
no further retort to the alarm expressed by Mr.
Wessels who appeared for the plaintiff that this might be an
indication of pressure
on the plaintiff’s blood vessels and that
there was bleeding because of the prolonged pushing.
[103]
The increasing caput (up to two plusses)
was also brushed off by her as not being of any significance in her
monitoring of the plaintiff’s
labour or the wellbeing of her baby.
(She certainly did not explain the caput with reference to the
plaintiff’s pushing on her
version, or the episiotomy she cut.)
[104]
Regarding
her entries on the partogram concerning the foetal heart rate and
when she took these in relation to the plaintiff’s contractions,
she was ambivalent but fairly conceded that the purpose of assessing
the foetal heart rate was to call attention to decelerations
that are
severe or prolonged that could be an indication of foetal distress.
She also revealed that the recordings noted by
her of the baby’s
heart rate were actually taken with a CTG.   She explained
however that there were no strips indicating
this because there was
“no CTG papers available in the hospital”.  (This revelation
appeared to surprise counsel and indeed
is an outrageous proposition.
I add that it was also not put to the plaintiff’s experts,
who testified in sequence before
her, that a CTG had indeed been
used, albeit without tracing paper.)
[54]
[105]
When it was suggested to Sister Tshanyingca
that electronic monitoring was reserved for high-risk labour, she
discounted that the
plaintiff’s labour posed such a scenario. When
pressed to explain why she then did not auscultate using a handheld
device rather
than putting her on a CTG machine without paper she
added that she used a feto- or stethoscope as well. Asked why she
used both,
the explanation provided by her got curiouser and
curiouser:
“
MS
TSHANYINCA
: To check if the readings
that were set by CTG machine is correlating with the one that you are
going to get when you are listening
to the listening to the
stethoscope or with the stethoscope.
ADV
WESSELS
: And then the guidelines say
after CTG interpretation write a note about the findings in the
woman’s notes so that the record of
the CTG is still available even
if the CTG tracing is lost. So it is important that what the CTG
shows is written in the record,
not so?
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: You did not do that.
MS
TSHANYINCA
: I was looking for the heart
rate.  So I did write the foetal heart rate.
ADV
WESSELS
: Well, you did not write the
foetal heart before and after a contraction.
MS
TSHANYINCA
: I wrote before the
contractions.
ADV
WESSELS
: Did you write the heart rate
before the contraction each and every time ...[intervenes].
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: That you wrote it down?
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: Yes. All right. But to write
it down before the contraction will not tell you whether the foetus
is in a reassuring condition, because
the problem may arise with
decelerations after the contraction or during the contraction. And a
deceleration is when the heart rate
drops after the contraction and
does not return to normal immediately after the contraction. You know
that sister, do you not?
MS
TSHANYINCA
: But... Yes, we do it. That
is why you do it for one minute longer.
ADV
WESSELS
: Yes. That is why you got to do
it for one minute. You got to do the, test the heart rate after the
contraction to see if there are
decelerations. Correct?
MS
TSHANYINCA
: Yes.
ADV
WESSELS
: Yes. You did not do that. You
took the heart before the contraction. So you never measured the
heart rate to see if there were decelerations.
MS
TSHANYINCA
: But the CTG would show when
there is a... You could see on the
CTG.
ADV
WESSELS
: Yes. But the heart rate even
of a normal foetus is not a flat line before the contraction and is
on the same flat line after the
contraction. Correct? It varies. That
is where you get the variability in the heart rate.
MS
TSHANYINCA
:
Yes. Depending on the machine... Of the details.
ADV
WESSELS
:    Sorry. I did
not hear that.
MS
TSHANYINCA
:
Dep
ending on the... Yes. You get variation,
yes.
ADV
WESSELS
:    Yes. So the
foetal heart rate before the contraction and after the contraction
over a period of four hours is
unlikely to be exactly the same. There
is going to be variation.  Because if there is no variation that
baby is going to die.
Correct?
MS
TSHANYINCA
:
No, I do not understand.
ADV
WESSELS
:    Sister, you
said you only took the heart rate before.
MS
TSHANYINCA
:
Yes, and after.
ADV
WESSELS
:    Are you now
saying you took it after as well?
MS
TSHANYINCA
:
Yes. You do listen before and after and then you write the
in-between. That is why some they
will record 147 to 150.  But I
wrote 147 because it was the most when I hear with the stethoscope.
It was for 147, 147.
ADV
WESSELS
:    So you only
wrote down before, before the contraction?
MS
TSHANYINCA
:
Yes.
ADV
WESSELS
:    Sister, you
know, just to get it clear. Did you auscultate ...[intervenes].
MS
TSHANYINCA
:
Yes.
ADV
WESSELS
:    ...the heart
rate by way of a handheld device as well as the CTG machine without
paper?
MS
TSHANYINCA
:
Yes.
ADV
WESSELS
:    I see. I
have never heard of that being done. And can you tell me why you did
that?
MS
TSHANYINCA
:
Because when there is papers you are going to have a printout.
ADV
WESSELS
:    Yes.
MS
TSHANYINCA
:
You do not need to ...[intervenes]
ADV
WESSELS
:    On the paper
you have a printout.
MS
TSHANYINCA
:
And then when there is no paper you want to make sure if there is the
minute of the CTG, foetal
heart rate is the same that is going to be,
that is with the one that you are going to get with the stethoscope.
That is that.
ADV
WESSELS
:    But you know
that you got to record, it is very important that you record on the
partogram the reading before
and after the contraction. Correct?
MS
TSHANYINCA
:
Yes.
ADV
WESSELS
:    You did not
do that.
MS
TSHANYINCA
:
Okay.
ADV
WESSELS
: Sister, I want to put to you
that it is unlikely that any sister will both use the CTG and
auscultate and then not write down the
findings which are very
important. And that you did not do it in that manner.
COURT
:

Do you wish to comment ...[indistinct]?
MS
TSHANYINCA
:
No.”
[106]
She could barely give account of what each
foetal heart rate recorded on the partogram represented to her at
each relevant juncture
that she made entries. The single reading of
147 bpm at 20h12 she described as an “in-between” one. She took
it with a CTG and
a fetoscope but wrote 147 because it was the “most”
she could hear with the handheld monitoring device. (Her anomalous
description
above refers.) At 21h12 two rates appear which she
claimed were written down incorrectly, one being the fetoscope tally
and the other
the CTG which were “not the same” and which is why
she wrote it twice. Asked why she did not write this in the clinical
notes
she replied that it was because she wrote it on the partogram.
Reminded that she is supposed to write it in the clinical notes as
well, she justified that the maternity records “(go) as a
collective thing”. Mr Wessels appeared to give up on pressing her
any
further as to each individual reading recorded by her. She also
seemed to fail to appreciate, in justifying under cross examination
what she wrote down (at least in respect of the items he held up to
scrutiny), that each column on the partogram represents two sub
columns of thirty-minute periods each thus defeating her assertion
that she measured and wrote down the maximum foetal heart rate
as it
were every half hour.
[107]
she also failed to refer to any recordings
of the heart rate when the contractions intensified to four or five
in ten minutes when
the need for monitoring must obviously have
become more compelling.
[108]
Neither could she convincingly explain why
she had recorded on the partogram data suggesting strong contractions
experienced by the
plaintiff one hour
after
the birth of ST, yet she steadfastly insisted that the partogram was
an accurate record of what had transpired during her management
of
the plaintiff’s labour and ST’s birth.
[109]
She could not say why she has not used the
nurse’s assessment template, electing instead to make clinical
notes on the pages usually
reserved for doctors.
[110]
She
denied that foetal stress had been a feature of the plaintiff’s
labour at all which is why, so she explained, she made no note
to
this effect.
[55]
In
response to Mr. Wessels’ assertion put to her that “this baby
obviously had foetal distress, she firmly disagreed.
[111]
When Mr. Wessels pointed out the obvious
clinical features of ST at birth of foetal distress she again
insisted: “No. During labour
there was no foetal distress”.
[112]
She conceded that she was “rotating” in
the ward at the moment the plaintiff became fully dilated hence she
did not contemporaneously
record this significant event, this despite
her intimation elsewhere that she had remained with the plaintiff in
the last crucial
moments before she delivered and had “close
monitored her” (Sic). She incidentally confirmed that the
plaintiff’s delivery
was the only one happening at the time.
[113]
According to her assessment, the plaintiff
started to bear down at 00h30.  She could not appreciate that
there was no real distinction
between the concepts of bearing down
and pushing (which she put down to English not being her first
language) or that there was a
conflict with her earlier testimony to
the effect that the plaintiff had been pushing since she was 5/6cm
dilated. (On this explanation
of hers the plaintiff became fully
dilated at 00h30 and proceeded straight to the expulsive phase and/or
was pushing already when
this moment arrived.)
[114]
Whilst maintaining that she had other
patients and duties to attend to when she was not assessing the
plaintiff, she insisted that
she stayed with her from the time when
she was 7cm dilated because she was purportedly not co-operating and
was pushing as a result
of which she was “really close monitoring
her” (Sic).  She appeared to forget her earlier evidence that
the plaintiff was
supposedly pushing even before 22h00 when she
assessed and pronounced her 7cm dilated (her entry in the clinical
notes at 22h12 refers),
leaving the period (of monitoring) before
22h00 unaccounted for.
[115]
In respect of the plaintiff’s premature
pushing, she was adamant that she had counselled her, continuously
she said, not to push
but rather to pant.  When it was pointed
out to her that she only made a note at 00h12 that the plaintiff does
not listen, she
purported to explain that when she wrote this, she
meant that it was because she “was doing the same thing over and
over again”.
She explained it thus:
“
Like
I would say do not push now and then when the contractions start then
she
will
start pushing.  And then I will see that she is pushing.
And then I will see that she is pushing and I will say I
said do not
push when the contractions come, pant.  And then she will start
panting.”
[116]
When the apparent danger of allowing the
plaintiff to push for two and a half hours without getting her pain
medication or calling
a doctor to treat her for what could be a very
dangerous condition for the baby, she was certain that there was no
risk:
“
MS
TSHANYINCA
:
The condition of the baby assess was known so there was nothing that
was… I was going to call doctor
about because the foetal heart rate
was normal and the cervical dilatation was going well. And the pelvis
was well adequate so I
did not call the doctor because there was
nothing that was warranting me to call the doctor. Other than that
she was pushing. And
that I was managing to say do not push. And then
I stopped her and then yes.
ADV
WESSELS
:    Were you not
worried that this pushing could lead to some damage later on?
MS
TSHANYINCA
:
No. I was not.”
[117]
She agreed that in the third stage of the
plaintiff’s labour the cord was normal and the placenta also normal
and complete.
Also, in the fourth stage, there was no concern
that the plaintiff’s uterus had ruptured.  She agreed that
there could therefore
be nothing that happened that could be
described as a “sentinel event” accounting for ST’s (in her
view surprising) poor outcome.
(It would have been apposite at this
point to volunteer information about the baby been obstructed from
exiting the birth canal as
both justifying the need to cut an
episiotomy and offering a plausible reason for her being born “flat”,
but this subject (of
the actual delivery itself) was dealt with
pithily and only because she was constrained by Mr. Wessels’ cross
examination to deal
with the probability that the episiotomy was cut
because of a conceded obstruction and the plaintiff not being able to
make any effort
herself to push out the baby, this probably
explaining why she told Dr Yama that the mother had been
uncooperative.)
[118]
She furnished the name of her nursing
assistant (Sister Scwubo) and confirmed the latter’s current
employment in a public hospital.
[119]
Under re-examination she was asked by Mr.
Van Der Linde to explain carefully how she had monitored the foetal
heart rate, step by
step. Despite being given this opportunity to
make good on her earlier confusing narrative, her explanation still
fell short of providing
the necessary assurance that ST’s heart
rate was properly assessed or could have been normal at all times:
“
MS
TSHANYINCA
:
Okay.  Foetal heart rate I monitored that with a CTG as well as
a stethoscope.  The CTG
did not have the papers as I explained.
Our CTG did not have any papers.  So I would go with a CTG and
then I would listen
with a stethoscope just to see if the thing that
I am getting on the CTG is the same as the one that I am going get on
the stethoscope.
ADV
V/D LINDE
:
When did you start? At what stage do you start that you start
listening to
the foetal heart rate?
MS
TSHANYINCA
:
Before contractions and after contractions.
ADV
V/D LINDE
:
The plaintiff spoke about a belt that was put on her.
MS
TSHANYINCA
:
Yes.
ADV
V/D LINDE
:
What is that?
MS
TSHANYINCA
:
The CTG. For the CTG machine.
ADV
V/D LINDE
:
All right.  And then you described now how you have listened to
it.
And what did you record on the partogram?
MS
TSHANYINCA
:
I recorded…  Because the foetal heart rate that I got on
stethoscope mostly before and
not and after. Because normally the
variation between the foetal heart rate and before contractions and
after contractions would
be like not be too much. And instead of, I
got 147 to…  130 to 147 so I took 147 and I then I wrote that.
Because it was collaborating
with the one that I listened to with the
stethoscope.
ADV
V/D LINDE
:
Well in this case, how did the foetal heart rate before and after
contractions
compare?
MS
TSHANYINCA
:
It was normal all the time.”
[120]
At the prompting of the court, she named Dr
Yama as the person who assisted her with the resuscitation of the
baby.
[121]
She further confirmed that the last entry
made by her in the clinical notes concerning the plaintiff’s labour
and delivery (at 00h32)
was made after the birth of ST.
The
resolve of the factual dispute:
[122]
The
estimate of a credibility of a witness is inextricably bound up with
a consideration of the probabilities of a case.
[56]
[123]
Mr. Van Der Linde suggested that the only
discrepancy between the plaintiff’s version and that of Sister
Tshanyingca concerned the
issue of the purported application of
fundal pressure, but it is clear as I have noted elsewhere that the
plaintiff claims that she
and her baby’s wellbeing were monitored
only on three specific occasions; that she succumbed to the urge to
push long before
she arrived in the delivery ward (and in fact
did so from around 20h00 already); that  there was an absence of
attention given
to her except when nurses were summoned by other
patients who she shared a ward with because of her screams and the
obvious dilemma
that she was in; and that when it came time to push
out her baby she no longer had any energy to make the effort.
This was
followed by the cutting of the episiotomy and the
application of fundal pressure as testified to by the plaintiff which
caused the
baby to come out.  There are other nuanced
differences in the plaintiff’s experience of her labour and
delivery of ST that
do not accord with Sister Tshanyingca’s
narrative of what happened or with her record keeping that is
supposed to represent an
accurate and professional account of her
management of the plaintiff’s labour and assessment of her baby’s
wellbeing.
[124]
It
is trite law that where there are two mutually destructive versions,
the Court must be satisfied that the version of the litigant
upon
whom the onus rests is true and the other false before the onus is
discharged.
[57]
Ultimately the question is whether the onus on the party who asserts
a state of facts has been discharged on a balance of probabilities
and this depends on the mechanical quantitative balancing out of the
pans and scales of probabilities but, firstly, on a qualitative
assessment of the truth and/or inherent probabilities of the evidence
of a witness and secondly an ascertainment of which of the
two
versions is the more probable.
[58]
[125]
To come to a conclusion on disputed issues
a Court must make findings on the credibility of a factual witness;
her reliability; and
the probabilities.
[126]
In
Stellenbosch Farmers Winery Group Limited
[59]
the court referred to the variety of factors that would inform a
court’s credibility finding of a particular witness, and, in turn,
their reliability:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness's candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extra curial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness's reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity, and independence of his recall thereof. As
to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened
with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's
credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the
former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[127]
It was suggested  on behalf of the
defendant that there was something sinister in the late amendment of
the plaintiff’s particulars
of claim to add as a ground of
negligence that inappropriate fundal pressure had been applied to the
plaintiff’s abdomen in the
second stage of her labour, but it quite
evident from  the professional reports of both Dr Kara (who
confirmed such fact in
his oral testimony), and Professor
Christianson, that she had herself volunteered the information that
external pressure had been
applied to her abdomen as a distinct
feature of her narrative of the critical events from the outset.
Indeed, fundal pressure
as a midwife’s concept and unique technique
applied during labour, whether it is approved or not, or its
significance, would in
my view hardly have occurred to the plaintiff
to contrive as an extra ground of negligence late in the game.
[128]
The plaintiff’s insistence that pressure
was applied to her abdomen during labour was co-incidentally
confirmed by Dr Yama’s remark
that fundal pressure was used.
I refer again to the retrospective note made by him at 002h30 that a
report had been made to
him by Sister Tshanyingca of the application
of fundal pressure during the plaintiff’s delivery.  He also
noted that an episiotomy
had been cut according to her report made to
him, another feature that she failed to mention in her clinical
notes, and which turned
out to be consistent with her concession made
during cross examination that some form of obstruction presented
itself to her before
she cut the plaintiff’s perineum.  The
two interventions invariably go together, or rather the application
of (permissible)
fundal pressure might follow a difficulty in getting
the baby out after an episiotomy has been cut to promote expulsion
from the
birth canal making it a palatable narrative written down by
Dr Yama together with the view expressed by him in relation to his
diagnosis
of HIE that there had been poor maternal effort.
[129]
I have mentioned elsewhere the fact that
the Maternity Guidelines prescribe a formal obligation on the latter
to have filed a note
of his involvement post-delivery, which renders
it is entirely improbable in my view that he would have speculated
about what happened
during the delivery. Indeed, in terms of the
provisions of
section 17(1)
(e) of the
National Health Act, No. 61 of
2003
, it is a criminal offence if any person provides false
information with the intention that it be included in an official
hospital
record.
[130]
Further, the features of the situation to
which Dr Yama’s attention was drawn and requiring his assistance in
large measure coincides
with the plaintiff’s version of the events
given in her testimony.  For example, it is no coincidence that
he would have made
the remark concerning her related poor maternal
effort justifying an episiotomy and the application of fundal
pressure against the
background of her having openly admitted that
when it came to the delivery of her baby, she simply had no energy
left to push after
having exerted herself on her version from around
20h00 already. The fact that this was a notable feature of her labour
(despite
Sister Tshanyingca’s insistence at the trial that
everything had been normal but for the plaintiff not having listened
or cooperated
by pushing when she was not supposed to), is entirely
consistent with the need to have cut an episiotomy and applied fundal
pressure
to get the baby out when the plaintiff could not bring this
pressure to bear herself. Both measures, that is cutting an
episiotomy
and applying fundal pressure, would have been justified as
probable interventions (albeit the latter not an established or
approved
method of intervention) that Sister Tshanyingca would have
been tempted to try in such a scenario.
[131]
The
suggestion that the plaintiff ought to have called Dr Yama to testify
regarding his involvement in her labour and in effect to
refute
Sister Tshanyingca’s denial that it represents a fair account of
what she personally told him falls flat when regard is
had to the
fact that the parties agreed that the medical records placed before
court are what they purport to be.  Moreover,
the note appears
to form part of the legitimate records of the defendant. The note
says in clear terms what Sister Tshanyingca reported
to him so why
should it be rejected at the expense of the plaintiff now because it
does not suit her version?  It is an official
note ostensibly
maintained according to the protocol outlined in the Maternity
Guidelines. Indeed, the suggestion that Dr Yama speculated
or
recklessly made a false entry is on Sister Tshanyingca’s version
extremely opportunistic and most unbecoming of a professional
nurse
who ought to appreciate the protocol concerning proper record
keeping.
[60]
[132]
Sister Tshanyingca described the
plaintiff’s version taken up with her during examination in chief
regarding the application of
external pressure to her abdomen as
impossible but hardly to refute that it could not have happened as
the plaintiff said.
Rather she sought to justify her denial of
it on the basis that she as a recently qualified nurse would
never
have been permitted to apply fundal pressure and that it was in any
event proscribed. She absolutely agreed that it was a “no go”
and
an inappropriate intervention at her disposal to assist in getting
the baby out.  Therefore, the criticism by Mr. Van Der
Linde
that she was not cross-examined on why she stated that the
plaintiff’s version was impossible or that she was not given the
opportunity to deal with the plaintiff’s precise version of the
application of fundal pressure, is without merit.  Indeed,
it
seems entirely unnecessary in my view for Mr. Wessels to have put to
Sister Tshanyingca the
minutia
of how the plaintiff says the pressure was exerted on her in order to
counter her emphatic insistence that no such thing ever happened
and
that it was, by necessary implication, a figment of the plaintiff’s
imagination.
[133]
Mr. Van Der Linde submitted that there are
inherent improbabilities in the plaintiff’s evidence as to how
Sister Tshanyingca clambered
onto the delivery bed in the manner in
which the plaintiff described and of how the assistant nurse, playing
no part and having no
function of the delivery of the baby, came to
the delivery table and stuck fists in her tummy.  Firstly,
regarding the latter,
Sister Tshanyingca was coy about who this other
person was (only revealing her identity right at the end when
pertinently asked)
and distanced her from having had any
responsibility in the process at all on the basis that she was alone
in the delivery area with
the plaintiff when she delivered her baby.
It is ironic that she sought to give such an impression because, if
she was alone,
this does not then explain how the assistant came to
call on Dr Yama at her instruction to assist with the resuscitation
of the baby
(an event concerning which no time could be lost by
obvious implication), meaning that she must plausibly have been
present at the
defining moment and ought to have been able to provide
a valuable account of what actually went down.  It also begs the
question
why in Sister Tshanyingca’s testimony she sometimes
referred to an “us” and a “we” as opposed to herself in the
singular
tense if she had instead been a lone operator.
[134]
Concerning
the supposed mechanism of how the baby was expelled according to the
plaintiff, this fits in seamlessly with the background
facts. There
was firstly the claimed spontaneous remark by Sister Tshanyingca that
the baby’s head was swollen suggesting a risk
and urgency that
necessitated getting the baby out. The plaintiff could not have known
this except if Sister Tshanyingca, who was
standing at the opposite
end of her vagina and accordingly in a position to observe as much,
had herself mentioned it. The plaintiff
insisted that she had no
energy to push. This is given credence by Sister Tshanyingca’s
evidence (and retrospective note) that
she had prematurely pushed
despite her cervix not yet being fully dilated from 5/6 cm already.
Dr Yama’s note of what he was contemporaneously
told by Sister
Tshanyingca referred to the plaintiff’s alleged “poor maternal
effort” which is more consistent with her having
not pushed to
deliver her baby than having pushed incessantly on the delivery bed
as claimed by Sister Tshanyingca. She felt constrained
to cut an
episiotomy which she conceded had to do with an obstruction. That
accords with the plaintiff’s experience that she was
tired and
could offer no expulsive efforts of her own to force her baby out
whereas the foetus’ head in a cephalic presentation
had crowned and
was stuck in the bony structure that comprises the birth canal.
[61]
The application of pressure to the plaintiff’s abdomen in the
manner described by her brought the baby forth after Sister
Tshanyingca’s
second go at putting her knee on the plaintiff’s
abdomen.  (Permissible fundal pressure, whether the technique is
approved
of or not, would ordinarily have had such an objective in
mind, that is to get the baby out.) The baby was delivered after the
application
of pressure in a severely compromised state with no
respiration that was only restored at 00h50 after the combined
resuscitation
efforts of Sister Tshanyingca and Dr Yama.  There
is therefore to my mind nothing inherently improbable in the strange
concatenation
of events that the plaintiff asserts happened,
culminating in the application of external pressure to her abdomen.
[135]
The plaintiff made a favourable impression
upon the court and her version of what happened during the delivery
of ST - which must
by all accounts have been extremely traumatic and
left an indelible imprint on her memory, is fairly consistent with
what she much
earlier told Dr Kara and Professor Christianson (he
noted less detail of the history but enough to suggest a fundal
pressure intervention).
It coincidentally also fits in with
what Sister Tshanyingca reported to Dr Yama in the heat of the
moment, as it were, when
the baby’s life was hanging in the balance
after she had applied fundal pressure, which presents as a plausible
intervention in
her accounting to him in order to counteract the
plaintiff’s so-called poor maternal effort. Her version concerning
the lack of
attention given to her in the antenatal ward also
conforms substantially with the nuances she related to the experts
she consulted
with.
[136]
According to the reporting protocol Sister
Tshanyingca had to give account to Dr Yama of the situation and
background, and of what
steps had already been taken, when she sought
his assistance to resuscitate the baby who had come off worse after
the measures adopted
by her to get the baby out.  What he on the
face of it was told by her had happened coincidentally also fits in
with Sister
Tshanyingca personally and independently ascribing the
“complication” with ST’s birth on the Summary of Labour Chart
to the
mother not cooperating during labour and delivery.
[137]
The minor discrepancies in the plaintiff’s
accounts regarding whether a single fist was used, and whether once
or twice, and the
exact sequence of events are in my view not
material.  The more important fact is that dramatic pressure was
applied using fists
and a knee in an escalated progression to achieve
the expulsion of ST.
[138]
I turn to deal with the issue of the
claimed monitoring by Sister Tshanyingca and the reliability of her
note keeping.
[139]
There is a notable absence of
contemporaneous detail in the clinical notes that gives credence to
any developing crisis that quite
matches her description given
ultimately and after the fact to justify what she saw as a
complication of the delivery which, even
on her version, she must
have seen coming. Indeed, the risk of the scenario relied upon by
her, namely that the plaintiff pushed
aggressively until the end on
her version, supposedly had its origin in her pushing from five/six
centimetres dilatation already.
That risk is not recorded or noted
contemporaneously in the maternity records as a developing concern,
neither is any attention given
to its impact in relation to the
foetal wellbeing or the care of the plaintiff.
[140]
Sister Tshanyingca’s notes are also
essentially shy of the most critical feature which is that ST
evidently suffered foetal distress
(she must have suffered
significant bradycardia in order to have sustained an acute profound
brain injury) whilst under close watch
by her at least from around
midnight until the baby’s delivery. This is acknowledged in the
First Examination of Neonate chart
ostensibly written by her, so it
is unclear why she would have been hesitant to make such a concession
during cross examination.
[141]
Bradycardia
is an undeniable feature of the diagnosis that she suffered HIE
encephalopathy at birth.
[62]
Her firm denial she did not notice or recognize its onset is further
entirely improbable on her version.
[142]
What additionally renders the account of
her professed diligent monitoring especially unreliable is her late
revelation that a CTG
was used but without paper and therefore also
without a graphic representation and interpretation which she would
properly have had
to apply her mind to if there had been paper.
There was certainly no interpretation applied by her on her
bizarre explanation
given of how she came to the numbers written down
by her. The corollary of her revelation regarding her use of
electronic monitoring
however means that there was a continuous
monitoring tool at her disposal during the second stage of the
plaintiff’s labour (in
respect of which there was close monitoring
as attested to by her). The CTG must plausibly either have been set
with an audible alarm
in the case of a significant deceleration to
warn her of any threats to the baby or the readings must have been
visible to her on
the monitor itself.  This monitoring must (on
her version since she began close monitoring at 7cm and on the
plaintiff’s version
from around midnight until delivery) have given
her a clear indication that matters were getting out of hand.
She made a note
after the fact of a single heart rate of 127-bpm at
00h32 which on her version she must have obtained from the CTG
monitor but none
other whereas she was on hand, and the plaintiff’s
contractions were strong and frequent requiring more intensive
monitoring. Even
the reading of 127-bpm represents a significant
deceleration (from the baseline noted by her on her partogram) which
ought to have
prompted some form of remedial intervention but instead
she feigned surprise at how it had happened that ST came to born
“flat”.
[143]
The clinical notes Sister Tshanyingca made
are ironically on the hour suggesting a perfunctory note keeping or
an after-the-fact template
consistency, whilst ignoring the reality
that even on her version, the plaintiff’s labour had taken a turn
for the worse that must
have raised concerns which, if reflected in
an honest contemporaneous note keeping fashion, would not have been
limited to entries
made at exactly twelve minutes past the relevant
hour in each case.  Her notes and entries also raise suspicion
because they
do not coincide with even the common cause facts.
I refer by way of example to the fact that the plaintiff continued,
on the
partogram’s representation, to be in strong labour even
after ST was born.  There is the further absence of any detail
of
foetal distress or problems noted with regard to the delivery of
ST on the Assessment of Newborn chart, or in the summary of labour,
whereas it is an incontrovertible fact that there were both problems
(even on her version), and neonatal encephalopathy.
[144]
The most improbable feature of Sister
Tshanyingca’s evidence is that the birth of ST as a flat neonate
etc, came as a surprise to
her.  In order to get to the acute
brain injury ST must have suffered significant bradycardia near the
end of the plaintiff’s
labour.  She was closely monitoring the
plaintiff according to her and using the CTG (albeit without paper),
yet somehow missed
this vital cue. The other probability is that
towards the end she did recognize the risk and took the steps which
she did in cutting
the episiotomy and applying fundal pressure in her
own awkward manner, but subsequently sought to conceal her manoeuvre.
[145]
Sister Tshanyingca made a poor impression
as a witness.  Whenever it got too difficult to answer any
question, she feigned an
inability to hear what counsel was asking or
cited a lack of understanding of the questions.  This stands in
contradiction to
her arrogance at other times especially having
regard to her insistence that she did not need to call a doctor to
assist with the
delivery and calling Dr Yama out for making
assumptions and in effect causing to be reduced to writing a false
entry concerning her
management of the plaintiff’s labour.
She also adapted her evidence as she went along and only made
concessions (such as
the significant detail that she was using a CTG
to monitor the foetal heart rate) when pushed into a corner.  Her
opportunism
is also demonstrated by the fact that she was happy not
to correct the specialists, in reading her note made after the
delivery to
mean that the plaintiff pushed from “5cm” (which
would somehow explain how ST came to be born “not healthy”), but
when it
came to being grilled about why she did not administer
analgesia to a mother who was clearly in need of it, it suited her
purposes
for the figure to be interpreted as a six because that would
put the plaintiff 4cm away from full dilatation to justify her excuse
for not having administered any medication to her at that late stage
for fear of side effects to the baby.
[146]
It is regrettable that in respect of a
matter so critical as this with lifelong adverse consequences to ST
and the unimaginable pain
and regret to the plaintiff, that she
failed in both her legal and professional obligation to give a true
account of her management
of the plaintiff’s labour and her
delivery of ST in the maternity case record that this court can
safely rely upon.   The
most plausible motive for this is
that she wanted to cast off any suggestion that she acted
unprofessionally by applying fundal pressure
during the labour, and
indeed that she also negligently missed the fact that a crisis had
developed in the first place, requiring
her to take this drastic
step.
[147]
In the result I am satisfied that the
evidence of the plaintiff is to be preferred concerning the
management of her labour and that
Sister Tshanyingca’s partogram
and notes cannot be relied upon in instances of dispute between her
and the plaintiff or other objective
indications of the true
situation.
[148]
This significantly changes the basis then
upon which the experts ought to have assessed the breach of duty,
going to the issue of
negligence, as well as the issue of causation.
The
expert testimony:
[149]
I deal below with the contributions of the
experts in respect of the issues of negligence and causation under
the various sub-headings
indicated below.
The
duty to monitor:
[150]
Professor Anthony explained why foetal
monitoring according to the Maternity Guidelines is essential against
the background of the
relevant physiology of mother and child and the
unique process of labour in its various stages.
[151]
The latent phase of labour (less than 4cm
dilatation) is a period of slow cervical change of variable duration,
whereas the active
phase (between 4-10cm dilatation) is usually a
more rapid and predictable passage of cervical dilatation.
Contractions continue
in the active phase to intensify through into
the second stage of labour which is when the mother adds to the force
of uterine contractions
by bearing down to expel the foetus.
[152]
The process of assessment, or
monitoring, that takes place during labour depends on the phase and
the stage of labour.  In the
latent phase of labour, when the
contractions are weak and relatively infrequent, assessment intervals
tend to be longer but once
there is active labour, these shorten.
During the second stage of labour, the juncture reached when the
mother becomes fully
dilated at 10 cm, and especially when she is
bearing down (the expulsive phase), the frequency of the observations
increases even
further.
[153]
In active labour, the cervical changes are
documented every two hours and the foetal heartrate assessed every
half an hour.
When the second stage of labour is reached, the
monitoring of the foetal heartrate intensifies further and is
required to take place
after every second contraction through until
delivery.
[154]
The reason why this is necessary is fairly
obvious.  Foetal oxygenation during labour is always at risk and
is an inherently
hypoxic process regardless of whether a woman has a
normal pregnancy or whether there may be any other predisposing
factors giving
rise to hypoxia.  If contractions take place too
frequently or if they are too strong, these may interrupt the blood
supply
to the foetus sufficiently to make it hypoxic, and if it
becomes hypoxic it will also become acidotic because it can no longer
maintain
its own metabolism.  It is for this reason that the
monitoring of the foetus in every single labour, no matter the risk
of the
mother, has to take place by means of looking for signs of
evolving foetal hypoxia.
[155]
He explained the physiology as follows:
“
The
process of keeping the baby oxygenated, enough oxygen to sustain
fetal wellbeing, depends on placental function.  And just
to try
and explain this, the placenta is very much like an upturned dinner
plate which is in fact stuck to the side
of
the uterus.  And there are vessels which come through the wall
of the uterus called the spiral arteries which are pumping
blood
beneath that dinner plate.  So, there is a gap between the
dinner plate and the side of the uterus.  And there is
blood
being, Maternity blood being pumped into that space which we call the
choriodecidual space.  The dinner plate itself is
the placenta,
and the structure of the placenta is that it has a number of finger
like structures called villi which floats in this
choriodecidual
lake, this pool of blood beneath this upturned dinner plate.
When the baby is pushing its own blood through
those villi and gas
exchange is taking place between the blood, the Maternity blood that
is under the dinner plate and across the
villi wall into the baby’s
blood which is then been pumped round back into the baby itself.
The problem is that labour,
when it starts as the uterus starts
contracting, those vessels which are coming through the wall of the
uterus get squeezed and as
the uterine muscle contracts and as they
squeeze those vessels the blood flowing into that choriodecidual
space diminishes.
This means that for the duration of a uterine
contraction during labour the baby has to extract what oxygen is
available in the pool
of blood trapped underneath the dinner plate
whilst the uterus is contracting.  For that reason, fetal
oxygenation during labour
is always at risk.”
[156]
All guidelines for the management of labour
according to him recognise the need for foetal monitoring during
labour with monitoring
escalating in frequency according to the
amount of uterine activity and the pressure inside the uterus which
may compromise the perfusion
of the placental bed.
[157]
The reason for listening to the heartrate
before and after a contraction is because, in the period immediately
after the mother’s
effort, the baby will exhibit a response to what
has happened during the course of the contraction, which it is
necessary to gauge
in order to confirm its wellbeing.  Ideally
there will be a resetting of the oxygenation of the foetus after the
contraction
(a self-compensatory mechanism) and this is the reason
why you perform monitoring after a contraction in order to look for
evidence
of the foetal heartrate as slow in relation to uterine
contractions.  The purpose is to recognize when the foetus shows
any
evidence of hypoxia relative to a uterine contraction which
typically presents as degenerative changes in the foetal heart rate.
Monitoring takes place either by listening (auscultating), or by way
of electronic monitoring (by CTG).
[158]
It is important to know what response the
baby has to a contraction and not merely to document the heartrate.
The heart rate
between contractions is evidence of life but not
evidence of wellbeing.  Wellbeing is determined by whether the
baby can sustain
a uterine contraction without showing a
cardiovascular response which is indicative of hypoxia during that
event.  That is the
distinction and that is why the Guidelines
stipulate the need to auscultate both before and after the
contraction in order to determine
whether there is foetal wellbeing.
[159]
In Professor Anthony’s view, even taking
the maternity case records at face value, it is not clear how the
heartrate was measured
in casu.
He
was prepared to state on the basis of a mere case review that Sister
Tshanyingca’s monitoring fell short of constituting adequate
care
even if it was purportedly done every half hour according to the
Guidelines.  The reason for this is that the mere measurement
of
a heart rate (a random recording having no connection with the
mother’s contractions) misses the mark of assessing where the
contractions are at. The foetal wellbeing in labour must always be
assessed in relation to what happens when the uterus contracts.
[160]
The effect of inadequate monitoring is that
“there is an increased probability of adverse outcome in relation
to undiagnosed fetal
hypoxia which without intervention will result
in fetal injury.”
[161]
The partogram is a valuable tool to present
a picture of the progression of labour highlighting the most salient
vitals of mother
and foetus to identify cases where the progress in
labour due to complications is slow and requiring intervention. That
too is a
necessary tool to anyone reading it to gauge adverse risk
factors.
[162]
He was not in agreement, despite the
half-hourly foetal heart rate recordings plotted by Sister
Tshanyingca on the partogram
in casu
,
that these met the required professional standard because it is
unclear when in relation to the plaintiff’s contractions they
were
done.  He also did not agree with the defendant’s hypothesis
that on probability what was monitored was the foetal heart
rate
after
contractions.
He pointed out in this regard the anomaly (on the partogram) that the
periods between the contractions far exceed
the period during which
the foetal heart rate was measured, so the recorded entries do not in
his opinion inspire confidence that
the foetal condition was
reassuring.
[163]
He added (but without the benefit of
knowing what Sister Tshanyingca would say concerning this significant
aspect) that if the readings
came from a CTG tracing, the expectation
is that those would have been annotated to the effect whether they
were either early, late,
variable, or yielding no decelerations in
relation to the plaintiff’s contractions, and the interpretation of
each such assessment
is then required to be noted on the partogram.
[164]
Notwithstanding
that the gap
[63]
left open on
the partogram is co-incidentally followed by two recordings of a
“normal” foetal heart rate after, he was not convinced
that this
mitigated the risk because the last two measures on the partogram
bear no obvious relationship to the plaintiff’s contractions
that
must have been happening at the time.
[165]
He reiterated that it is the contractions
that will expose any underlying foetal hypoxia and that it will
manifest as a foetal heart
rate deceleration.
[166]
In his view the foetal heart rates recorded
on the partogram reflect merely that the baby was alive at these
times but are not reassuring
of foetal wellbeing during labour in the
absence of any recordal “in relationship to the contractions.”
[167]
CTG tracings would automatically compute
the foetal heart rate in relation to uterine contraction, but still
require interpretation.
With intermittent auscultation there would be
the same requirement that one assesses the response of the foetus to
the occurrence
of a uterine contraction during labour.
[168]
He explained how auscultation would be
effected and when it would be necessary to switch over to electronic
monitoring:
“
To
do this the midwifery staff commonly use a thing called the Pinard
stethoscope which is a trumpet-shaped foetal stethoscope, which
they
will put on the mother’s abdomen, leaning against where the foetal
back so they can hear the heart, and then with the other
hand, well
with the same hand they would usually palpate the fundus of the
uterus and they would feel for when the contraction takes
place and
they would be measuring the foetal heart before and then after the
contraction.  That is what is required in terms
of the national
guidelines.  That is what is stipulated on the partogram which
they used, where there is a circle indicated
for the rate before the
contraction starts and a cross for where the foetal heart rate should
be recorded after the contraction,
and the importance of this is to
discern whether or not there is any slowing of the foetal heart rate
in relationship to the contraction,
and if there is that would be
indicative of a potential problem which would then require a
transition from intermittent auscultation
to electronic foetal heart
rate monitoring in order to characterise the nature of that
decelerative change and its relationship to
the contraction that
provokes it. And then the analysis becomes more sophisticated, as it
is indicated in that partogram, as well
as to whether or not the
decelerations that are observed are early, variable, or late, or
whether there is no deceleration.
In this particular case there
is no indication that this foetal heart rate was auscultated after
the contraction and if CTGs were
used as a way of observing it there
is no indication as to whether or not the tracings were analysed with
respect to whether or not
decelerations were present.”
[169]
Put to him that Dr Koll would say that
there are seldom three separate recordings of the foetal heart rate
taken and that the hospital’s
recordings were done as would be
expected of a reasonable healthcare professional, he emphasized that
this is not his view, neither
is it the view of people who write the
Maternity Guidelines and that it is also not what was required in
terms of the partogram that
was used in this particular instance.
He conceded though that many partograms do not use all three
recordings. (Indeed, the
latest Guidelines do not mention or require
three separate recordings). The important ones however are the foetal
heart rate prior
to the contraction and the foetal heart rate after
the contraction.
[170]
He did not agree with the defendant’s
assumption that if anything untoward had been noted during
auscultation that something would
have been done about it and that it
would have been reflected in the notes.  Rather it works the
other way around.  The
necessary protocols need to be observed
in order to detect abnormalities
.
If the protocol is not followed, then it is likely that what exists
as an abnormality may go undetected.
[171]
He was not in agreement (and indeed this is
not borne out by the facts found proven by this court) that there is
“evidence” that
someone in the maternity ward listened to the
foetal heart rate in the manner that he articulated is the
professional standard.
(Ironically Mr. Van Der Linde did not
put Sister Tshanyingca’s anticipated version to Professor Anthony -
that in the end turned
out to be an unconvincing explanation of what
and why she wrote what she did, instead inviting him to comment on
the probability
or assumption that she wrote down the
after
-contraction
heart rate.)
[172]
He agreed that there was no indication on
the partogram that the “action line” had been crossed to suggest
any concern of dystocia
in terms of the actual progress of the
plaintiff’s labour itself. (Indeed, to my mind a concern regarding
a precipitated labour
seems more appropriate.)
[173]
In reviewing the case records, and even
after hearing Sister Tshanyingca’s testimony, Dr Koll had no
complaint regarding the overall
monitoring of the plaintiff and her
baby during her labour. Instead, he believed that the foetal
heartrate was auscultated half hourly
which he asserted was as per
the Guidelines.  There was one small area where it was
auscultated a little bit late and a little
bit early according to the
partogram, but there were two normal heartrates auscultated after,
leading him to conclude that the monitoring
of the foetal heart was
adequate.  At 22h00 the plaintiff’s liquor was noted to be
clear and two hours later she was fully
dilated.  The progress
of labour was also adequate in his view. (Whilst the partogram
reflects recordings above the 130-bpm
baseline Sister Tshanyingca
however indicated in her clinical notes that it had reduced to
127-bpm during the second stage and just
before delivery. I refer to
my further observation above that in order for ST to have suffered
the injury which she did, a severe
bradycardia had to have been an
obvious feature of her condition just before her birth. The same can
be said of an evolving hypoxia
that on the proven evidence must have
called attention to itself.)
[174]
Dr
Koll indicated that he was aware that the Guidelines say that the
heartrate should be auscultated before, during and after a
contraction
but asserts that he has never seen it applied in a case
that he has testified in, so the Guidelines seem at variance with
what the
average person does.
[64]
[175]
Having
said so, however, he suggested that given the standard teaching that
one is to listen before and after contractions, which
is drummed into
people’s heads from their first day as midwife, or for a medical
student that the most important part is to listen
before and
immediately after a contraction so as to establish the baseline and
recognize significant decelerations, the result expressing
that
consideration is the one that would in his view be recorded.  As
far as he is concerned, foetal heartrate monitoring is
never recorded
strictly as the Maternity Guidelines suggest and certainly not in
Gauteng.
[65]
[176]
He agreed that the maternal condition
should have been recorded hourly, but that it was only recorded two
hourly in this instance.
This was not of any significance
however since there no complication with the plaintiff’s condition.
[177]
In his view the assessment in the latent
phase and during active labour were within the Maternity Guidelines
and there was no evidence
of foetal distress present in the labour or
of any concerns to the nursing staff in attendance. The value of this
observation is
diminished however against my finding above that the
plaintiff’s version is to be accepted above that of Sister
Tshanyingca.
Her representation in the maternity case record of
the premise of a re-assuring foetal status is unreliable, if not
false.
[178]
Dr Koll unreservedly agreed with the
physiology of foetal oxygenation explicated by Professor Anthony and
that it is exactly for this
reason that monitoring is essential. He
went on further to say that if any features of concern arise such as
a late deceleration
that it becomes imperative to progress from
intermittent auscultation to electronic monitoring.
[179]
In concluding with this aspect, the experts
concur that foetal heart rate monitoring is essential and must be
effected with the express
objective of picking up on foetal distress
in relation to a mother’s contractions in labour if it is to
effectively prevent adverse
outcomes. This is the standard that I
accept a reasonable nurse should aspire to.
[180]
In this instance Sister Tshanyingca’s
explanation regarding how she monitored and what she was looking for
does not inspire confidence
that she appreciated that monitoring is
more than simply noting down a random reading on a partogram that was
self-evidently not
timed to the plaintiff’s contractions. I cannot
find that what she wrote down provides reliable information that
supports a finding
on the probabilities that ST coped well with what,
even on her own version, was a difficult labour.
[181]
I
need not in this instance determine whether a failure to write down
both a
before
and
after
recording
strictly
in accordance with the Maternity Guidelines misses the mark of the
professional standard in the light of my finding above that Sister
Tshanyingca failed to monitor the plaintiff’s labour properly,
period.  Further, her explanation concerning what she wrote
down, and why, in my view renders the rates recorded somewhat
questionable and of no value to anyone. The question of whether she
was negligent has to my mind less to do with her shortcomings in
relation to writing down strictly what the Guidelines prescribe
(that
is a matter for an internal enquiry),
[66]
but whether
in
casu
her monitoring and management of the plaintiff’s labour over the
relevant period, on the facts found proven, met the standard of
a
reasonable professional.
[182]
Although the expert professional nurses
agreed that there was no beach of duty by Sister Tshanyingca in
writing down only a single
heart rate reading, this expectation was
no doubt prefaced on an understanding that what she wrote down was
reassuring, by its mere
representation on the partogram, and denoting
a rate after the contraction rather than just a number bearing no
relation to the plaintiff’s
contractions. I cannot endorse their
common opinion however in the light of the unreliability of Sister
Tshanyingca’s record keeping.
Indeed, it appears that Sister
Tshanyingca paid mere lip service
in
casu
to the prescripts and structure of
maintaining a partogram and auditable records, best demonstrated by
her bureaucracy as it were
of checking on the foetal heart rate
ostensibly on the clock at exactly twelve minutes past every relevant
hour.
[183]
This plausibly explains in my view why she
missed the precipitated labour of the plaintiff and/or did not focus
on her premature bearing
down (or pushing before full cervical
dilatation, from since around 20h00 already according to the
plaintiff), leading in all probability
to the crisis that arose when,
at the appropriate time to push, the plaintiff  had no energy
reserves left to do so and the
extreme measures taken by Sister
Tshanyingca  (episiotomy and applying fundal pressure) while
ST’s head was engaged in the
birth canal for longer than was safe,
became a necessity.
[184]
Sister Tshanyingca’s surprise at the
birth of a flat baby was in all probability a startled reaction after
having missed the vital
signs of the baby’s impending doom that she
would have to account for, which is why she resolved to note down
“poor maternal
effort” as the cause of all the trouble as an
after-the-fact justification, a complication which just happens to be
the exact opposite
of her version of aggressive pushing by the
plaintiff right up to the delivery.
[185]
All of this suggests in my view that quite
contrary to the defendant’s supposition that ST’s injury came
from the blue and was
unexpected, that it was most probably instead
due to her failure to have properly monitored the plaintiff and ST’s
wellbeing, consistently
and in relation to the developing crisis, and
with reference to the express objectives of foetal monitoring which
she conceded was
vitally necessary, culminating in a risk that she
tried to avert in her unconventional manner to ST’s detriment.
[186]
The failure to monitor was obviously not an
isolated ground of negligence relied upon.  The fact of the
plaintiff’s premature
bearing down and the application of the
fundal pressure are interrelated features of the plaintiff’s
narrative. I deal with these
aspects below in relation to the
elements of both negligence and causation.
The
impact and effect on the plaintiff’s early bearing down:
[187]
Professor Anthony, based on a face value
assessment of the partogram and the clinical notes scribed by Sister
Tshanyingca, concluded
that the plaintiff had probably been bearing
down for a period of two and a half hours before she was fully
dilated (this based on
Sister Tshanyingca’s comment at 20h12 that
she was not co-operating at all and at 22h12 that she was pushing and
not listening,
ramping up to her after-the-fact entry at 00h12 that
the plaintiff had been pushing “as from when she was 5cm.”)  The
accepted
evidence however reveals that this situation in fact
pertained from around 20h00 when the plaintiff said she first began
to feel
pain and the urge to push entailing a longer period, probably
of four and a half hours. (As an aside it is difficult to accept that
the moment of full dilatation was reached on Sister Tshanyingca’s
evidence at 00h30.  It was at least common cause that from
around midnight the plaintiff was on the delivery bed. Sister
Tshanyingca however stated that she was doing rounds in the antenatal
ward at the time full dilatation was reached which is why she missed
the moment and didn’t write it down. It is therefore possible
that
the milestone was reached much earlier because Sister Tshanyingca
couldn’t have been in two places at the same time.)
[188]
Professor Anthony explained that in the
ordinary course a mother bears down when fully dilated coinciding
with the descent of the
foetal head into the pelvis.
[189]
The
plaintiff’s early bearing down would have represented a period
marked by strong contractions with three occurring in every ten
minutes and increasing closer to stage two to four or five per ten
minutes. Apart from the fact that Sister Tshanyingca’s notes
reflect a single foetal heart rate with no reference to whether any
of the relevant data was properly recorded after the plaintiff’s
several contractions, he noted his concern that these efforts on her
part would have amounted to a prolonged second stage of labour,
[67]
or a prolonged expulsive phase.
[68]
He noted that in the South African literature both risks are
clearly associated with an increased risk of still birth related
to
intrapartum foetal hypoxia which in all probability would have
contributed to ST’s HIE in the absence of proper monitoring.
[190]
He explained the likelihood of the foetus
suffering hypoxia induced both by the intense contractions and by the
bearing down efforts
that were taking place.  The effect of an
increase in the intrauterine pressure on the placental perfusion
would usually be
up to about 40mm of mercury with a uterine
contraction and with bearing down efforts would go up even further to
something close
to 100mm of mercury.
[191]
The reduction of the perfusion of the
placental bed is more profound in the second state of labour when the
mother is pushing.
[192]
This is of concern insofar as foetal
monitoring needs to take account of both uterine contractions and
bearing down efforts and needs
to be correctly performed in order to
ensure that the baby is not suffering from hypoxia induced by both
the intense contractions
and by the bearing down efforts that were
taking place.  With the increased intra-abdominal pressure which
occurs when a mother
tries to expel the baby by bearing down, the
reduction in perfusion is more profound the higher the pressure goes
and for that reason
the expulsive phase of the second stage of labour
is particularly problematic.  What you would see would be a
uterine contraction
that would be double the pressure than what you
would see with a uterine contraction without a bearing down effort.
[193]
Both the inadequate foetal monitoring and
the prolonged bearing down effort were in his view clear markers
associated with adverse
outcome.
[194]
Under cross examination he clarified that
he does not suggest that the prolonged bearing down on its own could
have caused an acute
profound injury itself but rather that in this
period the risk of the foetus becoming hypoxic by further diminishing
the flow of
blood and the amount of perfusion of the choriodecidual
space would have increased and that during the periods when the
plaintiff
was both contracting and bearing down this would have led
to an increased risk, represented as a progressive decline in foetal
oxygenation
over time.  The foetus would then have entered the
second stage of labour with an underlying hypoxemia caused by the
prolonged
bearing down.  This, combined with the effects of
labour itself would have rendered it more susceptible to any further
insult
during this stage, including the application of fundal
pressure.
[195]
Ironically
Mr. Van Der Linde put it to him that if there was a bearing down
effort by the plaintiff for an extended period as described
by him
that this would have been seen in the foetal heart rate which was
exactly Professor Anthony’s point, namely that a reasonable
nurse
would have been able to discern the abnormality by appropriately
observing the foetus’ wellbeing.  (If Sister Tshanyingca’s
version were incidentally true, that she had been closely monitoring
the plaintiff and her baby’s condition since 7/8cm on a CTG
monitor, I expect that she ought to have picked up on the obvious
decelerated changes that must have indicated itself to her. The
same
apples to the period from midnight until the baby was delivered from
when on either account of the lay witnesses Sister Tshanyingca
was on
hand making use of a CTG which is ostensibly sensitive to such
decelerations.)
[69]
[196]
Asked if anything could have been done in a
case such as the plaintiffs to ameliorate the risk of her bearing
down early, he explained
that:
“…
bearing
down early is not an uncommon event, and where it happens usually the
midwifery staff and again, I refer to their standard
textbooks, would
discourage the mothers from pushing too early. And there often is a
reference to the fact that they would examine
the patient, on the
basis of the fact that they wish to bear down and if they find the
cervix which is incompletely dilated they
would try and deal with the
patients pain which is often the problem, in such a way that they can
proceed with the labour without
pushing before they are able to expel
the baby during the second stage of labour. So, when the cervix is
less than fully dilated
it is a question of reassuring the mother, of
providing good analgesia, perhaps repositioning her, explaining what
is happening and
trying to deal with her distress at that point.
Bearing down in the second stage of labour is, is something which
happens because
the head enters the pelvis and reaches the pelvic
floor, and it is very much a reflex much like defecation would be, it
is a reflex
bearing down activity that takes place
at
that point”
[197]
It is common cause that the plaintiff was
not given any analgesia for pain, but the reason advanced by Sister
Tshanyingca why this
was the case was quite illogical.
[198]
It is instead evident from the facts found
proven that Sister Tshanyingca in all probability did not
appropriately manage this risk,
consistent with no contemporaneous
entries having made to such effect.  According to the
plaintiff’s evidence there was only
one instance in which she was
encouraged to pant rather than to push, which must on the accepted
factual premise have been at the
time the plaintiff says the nurses
were first called on her behalf, in other words, at the time of the
second assessment of her which
was after the night shift came on
duty.  The first entry made by Sister Tshanyingca at 20h12, if
there was an assessment at
this time at all, says nothing about this.
In the second entry made by her (at 22h00), she writes that the
plaintiff is not cooperating
at all. This comment suggests
recognition on her part that the plaintiff was pushing but does not
inspire confidence that she reconciled
herself to the extent of the
problem, that is that her early pushing - before full dilatation,
constituted a risk to the foetus.
At 00h12 she wrote that she is
pushing and doesn’t listen. This plausibly correlates to the
moment when the plaintiff says the
nurses were again called to come
and assist her and when she was then taken to the labour/delivery
ward.  Once in the ward and
when it came to the delivery itself,
the plaintiff says that she could no longer bring herself to push.
She had no reserves left
to do so. It is no coincidence to my mind
that the retrospective note made by Sister Tshanyingca does not say
that at 00h30 the plaintiff
“pushed”, but rather that “the
plaintiff is pushing as from when she was 5cm,” as if to justify
the complication after the
fact. The reasonable inference to be drawn
from all of this is that she probably missed the significance of the
plaintiff’s early
pushing in its entirety.
[199]
Professor
Smith added his view (perhaps more relevant to a discussion of
causation below) that the fact that the plaintiff was pushing
is
known to result in the foetus developing acidosis the longer the
mother bears down. This is a premise that Professor Cooper also
accepted
[70]
but with the
qualification that I mention below.
[200]
Dr Koll was less reluctant to make this
concession even in respect of the question whether Sister Tshanyingca
was negligent in managing
this feature of the plaintiff’s labour,
rather wishing it away as if it were improbable. Even after having
heard the evidence of
the plaintiff and Sister Tshanyingca in this
regard, he ventured that the information underlying this concern
raised by Professor
Anthony in this regard was on the thin side, but
offered his view as follows:
“
It
is not physically possible for her to have pushed from there until
the second stage of labour you know, I mean one just would not
have
enough energy reserves to do that
[71]
so presumably it was intermittent,
[72]
or it was sorted out.
[73]
The
way we sort it out generally, the first thing to do to sort it out is
to try and gain the patient’s confidence by talking to
the patient
and encouraging the patient to use manoeuvres that prevent pushing.
The most common one we use is that you pant
with a contraction and if
you are panting you are unable to use your abdominal muscles and
diaphragm to push.  So that is normally
the first and normally
once the patient understands why you do not want her to push,
normally that is successful.  Whether that
was employed or not,
is not evident in the records.  It would not normally be and the
sister would not normally write down that
this is what she did, so we
don’t know if it was done or not and we don’t know if it was
successful or not.
[74]
We
do not know how long this uncontrolled pushing went on for. The only
thing we do know is that there apparently was not foetal distress
associated with it.
”
[75]
[201]
He appeared reluctant to concede the
consequences of pushing on the foetal condition but ultimately agreed
that if it was significant
or had a significant effect on the foetus
that one would expect that foetal distress would have been detected.
Asked how such distress
would be detected in these circumstances, he
conceded that it would have been by way of marked decelerations after
contractions gleaned
by proper monitoring.
[202]
He added though that, apart from any
decelerations in the case records to support this (after a
contraction) he was not convinced
that it had caused any problems. If
it did, he shared his doubts that there would then have been clear
liquor at 22h00, or that an
acute profound injury would have ensued.
He expected that a partial prolonged or a mixed pattern would then
rather have shown up
on the MRI scan.
[203]
As to how to ameliorate the situation where
the plaintiff was in pain, he did not hesitate to agree that where
analgesia is needed,
it should be given. He added, however, that an
uncooperative mother should be counselled before administering drugs
which are given
as a last resort.  This is because of the
effects on the baby afterwards.
[204]
A summary of the experts’ respective
views on the impact of the plaintiff’s pushing ultimately came down
to an acceptance physiologically
that there can potentially be a
compromise to the foetus suffering hypoxia and that a risk such as
this should by necessary implication
(immediately upon its
identification as a problem, which ought to be picked up by proper
monitoring) be mitigated by counselling
and the giving of analgesia.
There however remained strong disagreement on the question
whether it could plausibly have led
to or contributed to the acute
profound brain injury sustained by ST because of the nature of such
an injury.  The plaintiff’s
experts’ explanation of
underlying hypoxia/ischaemia  making the foetus more susceptible
to an acute profound injury under
these claimed circumstances,
initially rejected by the defendant’s experts as a general
proposition, is dealt with further below.
[205]
In concluding on this aspect, I point out
that on either version of the plaintiff or Sister Tshanyingca little
was done by the latter
to deal adequately with this crisis of the
plaintiff’s pushing itself, leave alone the length and duration of
the claimed pushing
with early bearing down efforts. The experts
(including the professional nurses) were spot on in their criticism
of Sister Tshanyingca
for not being more explicit in the maternity
case record about why the plaintiff was not listening or why she
regarded her as being
uncooperative, or what steps she took to
redress this situation.
[206]
The ineluctable inference is that she
either did not recognize the problem at all for lack of proper
monitoring, or that she did,
but failed to take the problem
seriously, reconciling herself with the full extent of the situation
only at the point that the plaintiff
was about to give birth and she
was faced with an obstruction in the plaintiff’s birth canal
necessitating the cutting of an episiotomy
and the application of
fundal pressure.
[207]
In my view this ground of negligence
(interwoven with the related complaints that the staff failed to
monitor or to reasonably detect
the risk and impact on the foetal
wellbeing and react thereto by applying established methods of
intervention) has also been established
by the plaintiff on
probability.
The
impact and effect of the application of
the
fundal
pressure:
[208]
In Professor Anthony’s view the fundal
pressure referenced by Dr Yama in his note constituted an additional
risk factor for the
adverse outcome.
[209]
He provided the following background to the
“practice” of fundal pressure:
“…
fundal
pressure is a practice which is not advocated in any South African
certainly
teaching unit. It is also in terms of midwifery practice something
which is not advocated. The midwifery staff are trained
generally
using very standard text books for teaching and the one that is most
used is a book called Myles, M-Y-L-E-S which is a
very old book that
has been revised on many occasions, including the most recent African
addition of that, Ana Nolte, one of our
senior midwives was involved
in the revision and in the, that text there is absolutely no
reference at all to fundal uterine pressure
as a means of effecting
delivery.  Nevertheless there are some people who have
considered the possibility that this may be a
useful way to assist
with a delivery, and certain studies had been done to try and assess
whether or not gentle fundal pressure using
only the hands (on) the
fundus could assist in the process of child birth, but the evidence
for that has not been, has not shown
any benefit at all, and there
are very significant concerns that have been expressed about the
possibility of this causing harm.
And once again the harm that
can result from this may range from a further escalation in
intrauterine pressure, much as what happens
when the mother pushes
down, but this is now somebody exerting external pressure on the
uterus, which will compromise uterine perfusion
further, even to the
point of the possibly of rupturing the uterus.  So these
concerns have been acknowledged by the WHO and
they on the basis of
that they do not recommend this, they do not consider this or
recommend this procedure and the whatever further
obstetrics practice
develops from this intervention has to be only in the context of
clinical studies and not part of the routine
obstetric practice
because it is considered to be potentially dangerous.”
[210]
Apart from noting the anomaly that Sister
Tshanyingca had not written in her notes that she had applied fundal
pressure, he was somewhat
perturbed by how the plaintiff contended
this pressure had been applied to her abdomen which in his view would
certainly have added
to the risk of HIE:
“
(In)
this particular case although it is not written in the notes, that it
was more than gentle fundal pressure that seems to have
been
applied.  If this is indeed correct, and arms or even knees have
been used, this (has) definitely never ever been studied
anywhere,
and nobody would I think every think that this was an acceptable form
of practice. And the risks would be those that I
have alluded to
already.”
[211]
Ironically in cross examination the
Cochrane Review was held up by the defendant as a reason not to
discount the practice of fundal
pressure, and/or to argue away its
potentially harmful effects as contributing causally to ST’s HIE,
not only ignoring Sister Tshanyingca’s
outright denial that she
attempted even regular fundal pressure in the circumstances, but also
overlooking the egregious nature of
the claimed assault to the
plaintiff’s abdomen according to her testimony which on anyone’s
account would have been unacceptable.
[212]
Dr
Koll agreed that the issue of the application of fundal pressure
remains controversial and offered the usual indicators for and
against its use. He confirmed however that it is a practice still
widely applied. Regarding the plaintiff’s version how fundal
pressure was applied he suggested that he was more concerned with
maternal than foetal injury. He was incidentally aghast at the
Plaintiff’s rendition of how Sister Tshanyingca applied the
pressure to her abdomen, remarking that if it were true, he would not
allow the person to set foot in a labour ward again. (As an aside, I
realise that his comment was aimed at the suggested incredulity
of
the plaintiff’s version regarding how this happened, but it needs
to be said that no fledgling medical professional is beyond
redemption or remediation or cannot be appropriately counselled or
disciplined.)
[76]
[213]
He agreed ultimately however that if fundal
pressure in the manner suggested by the plaintiff had been applied
for a continuous period of 10 minutes
(I
deal with the so-called 10-minute “rule of thumb” below), he
would agree with Professors Anthony and Smith as to how the damage
was done.
[214]
Professor Cooper added his understanding
that fundal pressure is generally not recommended. He was inclined to
agree with Professor
Smith that the application of fundal pressure
(as an iatrogenic induced event as referred to by the latter) might
be so regarded
but only if “it is going to be the equivalent of
what we recognize as a sentinel even, which is a ruptured uterus,
prolapsed cord,
a massive abruption of the placenta….” And
provided that it would “have to have been…applied for these 10
minutes continuously
and with excessive force.”
[215]
He further agreed that Schifrin’s theory
of cranial compression ischaemic encephalopathy was an accepted one
“as shown in the
animal situation.”
[216]
On this score too, I conclude that the
plaintiff has established on a preponderance of probabilities that
Sister Tshanyingca breached
the standard of reasonable care by
performing this manoeuvre (on the basis described by the plaintiff)
which, on anyone’s assessment
of what is considered acceptable,
created a foreseeable risk of harm to ST.
The
probable cause of ST’s HIE injury:
[217]
This question, which goes to causation,
generated the most controversy.
[218]
The reason for the defendant’s
expert’s reluctance in conceding that Sister Tshanyingca’s
substandard monitoring or management
of the plaintiff’s labour
(even though it may have created a risk) caused ST’s acute profound
brain injury lies in the unique
features and pattern of such an
injury.
[219]
Pasternak
& Gorey,
[77]
who conducted
a study of the images of eleven term infants who suffered acute,
near-total asphyxia at the end of labour documented
which regions of
the brain are typically targeted by such injury. A consistent pattern
of injury was shown in the subcortical brain
nuclei, including
thalamus, basal ganglia, and brainstem (involving grey matter areas);
whereas in contrast the cerebral cortex and
white matter were
completely or relatively spared. Their work suggests that this
pattern of injury is unlikely to be reproduced when
seen on an MRI
scan of a damaged brain except in a situation where the hypoxic
ischemic insult which caused it occurred or manifested
itself as a
total or near total occlusion of the baby’s blood supply to the
brain (a simultaneous and abrupt deprivation of oxygen
and blood flow
to all organs) at the end of labour. (The insults are usually
relatively brief because, if prolonged, the probable
outcome is
foetal demise or unsuccessful neonatal resuscitation).
[78]
[220]
The
distribution of injury in the eleven patients reflects the hierarchy
of the foetal brain’s metabolic needs that are unmet after
a
severe, sudden disruption of substrate supply as occurs in an acute,
severe asphyxia. The higher metabolic rate of the brain compared
with
other organs explains the significant neonatal encephalopathy with
relative sparing of nonbrain organs. Similarly, the higher
metabolic
rate of subcortical nuclei compared with cerebral hemispheres
explains the preponderance of subcortical damage. This clinical
and
imaging syndrome is in contrast with that seen in more prolonged but
less severe intrauterine asphyxia, in which the shunting
of blood
flow from nonbrain organs to the brain and from cerebral hemispheres
to the thalamus and brainstem renders nonbrain organs
and cerebral
hemispheres most vulnerable.
[79]
[221]
In
a different study by Rennie and Rosenbloom,
[80]
which reflects on the time to foetal hypoxic ischaemic brain damage
in animal models and human babies, the authors conclude that
damage
begins to accrue after ten minutes of an acute profound hypoxic
ischaemic insult. (“the ten-minute rule of thumb”).
[222]
Based on these typical features the
defendant’s case is that an acute profound brain injury is the
result of a sentinel event, that
is a sudden, profound insult, that
occurs without any forewarning prior to its onset. It is unexpected
so therefore it is unlikely
to present itself as an evolving threat
by foetal monitoring.  Instead, it constitutes an obstetric
emergency. The obvious implication
of this is that when the insult or
event becomes a feature of the foetus’ condition there is also
invariably insufficient time
to react so as to avoid or ameliorate
the damage. In the result a plaintiff in the trial of an action such
as the present one will
be unlikely to establish factual causation.
[223]
The
test for factual causation is whether the act or omission of the
defendant has been proved to have caused or materially contributed
to
the harm suffered on the basis of the traditional “but for”
test.
[81]
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.
[224]
Therefore, the question still needs to be
asked in the present situation: would ST’s injury have been avoided
if Sister Tshanyingca
had properly monitored the plaintiff and her
foetus and had acted appropriately on the results (which in all
probability would have
alerted her to signs of evolving foetal
distress requiring her to apply established methods of intervention
in order to avert the
harm)? The other part to the question, since
the application of the inappropriate fundal pressure is pleaded as
one the wrongful
acts relied upon as constituting the cumulative
negligence contended for, is whether the harm would have ensued but
for this act.
[225]
The view of the plaintiff’s experts is
that the brain injury pattern does not confine this court to a
conclusion that factual causation
cannot be established simply
because of the agreed radiological finding as to what the
neuroimaging features on the MRI scan depict
because this merely
speaks to the injury’s pattern and severity and not its causative
mechanism. (I agree with this proposition
especially since the
radiologists emphasize that the MRI scan “
demonstrates
features
of a global of a global insult
due to an acute-profound hypoxic injury” and in fact does not speak
to any mechanism at all. Indeed,
it is the court that must determine
the probable mechanism on the evidence.) They maintain further that
BG injuries also can also
be caused by a different event than the
classic one which happens in an obstetric emergency. In this respect,
the possibility exists
that repeated and prolonged periods of
asphyxia (oxygen deficiency) or ischaemic (blood flow) insufficiency
during labour in the
near-term foetus (referred to as “subthreshold
hypoxia/ischaemia”) can also be causative of such an  injury
and is an exception
to the general tendency of a watershed
distribution (the so-called partial prolonged acute profound injury)
after global asphyxia
insults in the near-term foetus in the absence
of any intrauterine “sentinel”/catastrophic event. These kinds of
repeated insults
of moderate duration cause selective neuronal loss
in the striatal nuclei (putamen and caudate nucleus) which develops
when relatively
prolonged periods of asphyxia or ischemia are
repeated.  The medical literature outlined in paragraph 28 above
supports this
theory (Mallard
et al
.,
1995; de Haan
et al
.,
1997). So, whereas in the experimental work 30 minutes of continuous
cerebral ischemia was associated with predominantly parasagittal
cortical neuronal loss, with only moderate striatal injury, three
times ten periods of ischemia led to a greater proportion of striatal
injury relative to cortical neuronal loss (Mallard
et
al
., 1995).  Significantly,
striatal involvement was also seen after prolonged partial asphyxia
in which distinct episodes of bradycardia
and hypotension occurred
(Gunn et al., 1992).
[226]
Professor Smith explicated that the
striatum (putamina) is within the territory of the middle cerebral
artery (the grey matter area
of the brain that is typically damaged
in an acute profound type of injury) and is therefore not a watershed
zone.  Thus, it
is likely that the pathogenesis of striatal
involvement in the near-term foetus is related to the precise timing
of relatively prolonged
episodes of asphyxia and not to more severe
local hypoperfusion (ischaemia).  Speculatively, the apparent
vulnerability of striatal
medium-sized neurons to this type of insult
may be related to a greater release of glutamate into the
extracellular space after repeated
insults compared with a single
insult of the same cumulative duration.
[227]
The effect of this is that the underlying
or subthreshold hypoxia/ischaemia, evolving like a perfect storm as
it were, but without
those insults causing injury in themselves like
one would see in a partial prolonged injury pattern, would render the
foetus more
susceptible to a global insult (when the foetal brain can
no longer maintain its own metabolism) that will show up on an MRI
brain
scan as an acute profound injury because of the predominant
lesion being in the grey matter zone of the brain.  The other
tendency
is that because of this predisposition the foetus may be
more vulnerable to suffering a global insult in less time than the
accepted
timeframe of between 10 and forty-five or fifty minutes.
[228]
These propositions are gleaned from
existing literature that supports the so-called subthreshold theory.
[229]
Professor Anthony described his
understanding of how a foetus may sustain a hypoxic brain injury
during labour:
“
(T)he
labour, as I have already tried to describe is a highly potential
hypoxic stress to the baby. And the baby can withstand a certain
amount of hypoxia before that hypoxia translates into an actual
injury. The most important organ and the most sensitive organ that
will suffer consequences of inadequate oxygenation is the brain, the
fetal brain. And the baby can adapt in various ways to evolving
hypoxia in order to try and protect itself. In terms of the structure
of the fetal brain the most important structures are the basal
ganglia of the brain which are responsible for what we call
vegetative functions, so in other words the breathing, the things
that
normally we do unconsciously, and that keep us alive. And the
baby faced with hypoxia which worsens will try and preserve the blood
flow to the brainstem above all else. In doing that it may constrict
some of the blood vessels that are flowing, bringing blood to
the
cortex of the brain and in doing that parts of the brain may become,
what we call ischemic, in other words the blood flowing
through them,
there is not enough blood containing enough oxygen flowing through
those tissues and then they show evidence of injury.
But when that
happens, there are still preserving their blood flow to the brain
stem. And this is often what is called a partial
prolonged hypoxic
injury.  And it indicates a process of compensation usually to a
gradually increasing hypoxic stress. When
the hypoxia intensifies and
becomes or moves beyond the point of the baby being able to
compensate then you may get injury to the
fetal brainstem. And that
can happen either through an intensification of a gradual process of
evolving hypoxia during the course
of the labour, or it can happen
because there is a sudden cessation of oxygenation of the fetus as a
result of what is often called
a sentinel event. So, if something
happens which cuts off the baby’s blood supply abruptly, for
example the uterus ruptures or
the placenta separates and under those
circumstances the baby cannot begin to adapt and the most sensitive
metabolically active tissue
which is in the basal ganglia are
affected almost immediately and this is sometimes called the acute
profound injury. Now in this
particular case one needs to consider
why it was that the basal ganglia in particular (was) targeted. And
we know that generally
speaking there is about ten to 12 minutes of
complete anoxia that may pass before there is evidence of injury to
the brainstem and
to the fetus. But that period of ten to 12 minutes
presupposes a normal baseline oxygenation of a normal baby.
Where the baby
has become gradually more hypoxic and perhaps being
able to adapt to some extent to evolving hypoxia and something
happens that then
suddenly intensifies the hypoxia. The consequence
may lead to a basal stem acute profound injury, as was described in
this
particular case.”
[230]
Leave aside the “10-to-12-minute rule”
of complete anoxia that may pass before there is evidence of injury
to the brainstem and
to the foetus, he explains how it would have
been possible that subthreshold hypoxia (consisting in effect of
cumulative hypoxic
insults) could have conduced to an acute profound
injury in ST’s situation:
“
What
needs to be explained is what happened in the particular circumstance
in this case. Usually, a normally oxygenated baby can sustain
ten to
twelve minutes probably of complete anoxia before injury sets in. And
that has been documented
in
experimental work.
[82]
But
it presupposes that if you look at this particular injury that the
baby was normally oxygenated at the time that the central events
took
place, and in this case what we know is that the baby was not
adequately monitored during the first stage of labour. That the
mother was pushing for a prolonged period of time, and it is more
than likely that the fundal pressure was the additional insult
which
further increased the likelihood of hypoxia, and which probably led
to the injury that has resulted in this child, the basal
ganglia and
thalamic injury that we see and characterise as acute profound
injury.”
[231]
Professor Anthony agreed that the pattern
of an acute profound brain injury seen on an MRI scan is
distinguishable from that of a
so-called partial prolonged hypoxic
ischemic injury. This is evident from his reply that:
“
The
partial prolonged ischemic injury is an adaptive injury, if you like,
caused by the baby having to restrict the blood flow to
the main
cortical blood flow and the area between the vessels that are
supplying blood to the cortex, that are furthest from the
vessels,
so-called watershed areas, are the ones where the flow is most
attenuated and most likely to become injured.
ADV
V/D LINDE
: And that is the pattern that
one will see on an MRI image where a hypoxic ischemic injury or the
insult occurred over a period
of
time.
PROF
ANTHONY
: Correct..”
[232]
He did not agree however that an acute
profound type of injury is caused by a hypoxic ischemic episode
limited to a period of 10 to
45 minutes as was suggested to him on
behalf of the defendant.  Instead, he opined that the question
as to how long it takes
to cause damage is “not entirely clear”.
He explained why:
“…
If
you have complete anoxia, in other words if you cut off all the blood
supply and all the oxygenation to the foetus then between
10 and 12
minutes is required to initiate the process of damage; initiate the
process of injury. But the notion that you can have
a gradually
worsening hypoxemia of the baby, in other words not enough oxygen
floating around, an adaptation which involves decreasing
the flow to
the cortical brain and redirecting it towards the brainstem, where
the baby, where ongoing hypoxia outstrips, if you
like the
compensatory mechanism, that can also lead to the same pattern of
basal ganglia and thalamic injury that is seen. On the
other hand, in
a sentinel event, an acute sudden event which is an absolute event,
the most likely structure that you are going to
see injured is going
to be the brainstem, because it is the most metabolically active of
the cerebral tissue and it is the most susceptible
to profound
ischemia.”
[233]
He agreed that there is no indication on
ST’s MRI scan of any damage to the watershed regions of her brain
(the typical pattern
of a partial prolonged brain injury) but
emphasised that an insult does not necessarily lead to injury.
[234]
To put this into context, he explicated
that:
“
If
that were, if the insult were to lead most directly to injury then it
would be impossible to salvage any baby that is getting into
trouble
as a result of hypoxia during labour without there also being injury
on every occasion.  That is not true.  The
whole, the whole
thrust of foetal monitoring during labour is to detect evolving
hypoxemia in the baby and to intervene before injury
takes place.
And what the counsel is referring to now is the possibility that this
baby may have become increasingly hypoxemic
during the labour,
because of the process of labour itself and because of the prolonged
bearing down of the mother, and then what
happened was that the
introduction of fundal pressure worsened that quite acutely during
the second stage of labour.  And depending
on the baseline in
response of the baby, depending on where it is in relationship to
what preceded it, in other words how much, how
well oxygenated it was
at the time that the critical event took place, will determine what
happens.  If the baby has a period
at the time to further adapt
its blood supply to the cortex then you will see the watershed injury
as well, but in this particular
instance the second stage of labour
was very short and for that reason, whatever damage would have taken
place, would have affected
the most metabolically susceptible tissue
in the brain, bearing in mind that this baby more than likely was not
adequately oxygenated
at the start of the second
stage
of labour.”
[235]
He disagreed with the assumption put to him
by Mr. Van Der Linde that if there was any interference in the
oxygenation of ST that
it would have shown up on an MRI showing
features consistent with a partial prolonged pattern. He explained
why not as follows:
“
..a
certain level of hypoxemia is necessary to cause an injury and you
may, as I have already said, have hypoxemia, which is detectable
in
terms of foetal monitoring, which has not yet resulted in injury. If
you have a sudden escalation in the severity of that hypoxemia
as a
result of an event, whatever that may be, the consequences of that
are going to be related to the severity of the hypoxia and
its
duration. If it is of longer duration then you will see a progressive
change in the foetal brain, as the baby tries to adapt
and fails,
leading to both watershed injury, and if it is sufficiently severe,
also a basal ganglia injury. If the insult is severe
but of short
duration then whatever injury we see is going to accrue to the most
metabolically active tissue first and then to other
tissues
afterwards, and the most metabolically active tissue that you have
got is in fact in the basal ganglia.”
[236]
Put to him that a HIE episode which gives
rise to an acute profound injury lasts for 10 to 45 minutes, he
explained why he disagrees:
“
An
acute profound injury can develop in a normally oxygenated foetus
after 10 minutes of, 10 to 12 minutes of complete anoxia. It
may
develop much more rapidly than that if the baby is not normally
oxygenated at the time the event takes place. It may also develop
over a longer period of time if the baby is in a chronically hypoxic
stress environment where the baby is not getting enough oxygenated
blood through the placenta and where the hypoxemia continues and that
maybe gets worse, under circumstances where all the adaptive
mechanisms have been deployed and the baby can no longer preserve
sufficient flow of oxygenated blood to the basal ganglia, in which
case you will see a mixed picture of both prolonged partial and also
acute profound injury. In other words, watershed injury and
basal
ganglia and thalami.
ADV
V/D LINDE
: Now one does not see that
picture on the MRI in this matter.
PROF
ANTHONY
: That is correct, M’Lady. It
is as I understand the
neuro-radiology
report.
ADV
V/D LINDE
: If the ischemic, hypoxic
ischemic episode is shorter than 10 minutes then there will be no
brain damage.
PROF
ANTHONY
: M’Lady, that is not correct.
As I have already indicated the, this 10-to-12-minute rule applies to
experimental work
that has been conducted
and it looks at the process of a normally oxygenated baby subject to
complete anoxia. In other words, you
switch off the tap altogether
and that is the consequence. After 10 to 12 minutes the baby can no
longer sustain foetal hypoxia without
suffering damage to the
neurones and injury. If the baby, if somebody had been sort of
standing on the baby’s windpipe for a variable
period of time prior
to the onset of some other event that caused hypoxia then a much
shorter period of time will be required to
elicit the same response”
[237]
Referred
to the Rennie and Rosenbloom review on which Professor Cooper bases
his conclusion that damage will accrue strictly 10 minutes
after an
acute profound insult, Professor Anthony however honed-in on the
reservation expressed in that same article that there is
biological
variability in human foetuses regarding the timing. The opinion of
the authors is that human cases of acute profound hypoxic
ischemia in
which the insult duration can be timed with precision remain rare and
that there is often uncertainty about the prior
state of foetal
health.
[83]
He also alluded in
the article to the authors’ reference to foetal monkeys implicated
in classic experiments on acute profound
damages by Myers
[84]
in which they note that: “fetal monkeys who were already acidotic
because of a period of partial asphyxia acquired damage to the
deep
grey matter after a very short period of superimposed acute asphyxia,
lasting 3-4 minutes.”
[238]
Thus, the insult to the foetus by pressure
exerted during the irregular application of fundal pressure (where
there was already underlying
compromise) is consistent with the kind
of superimposed acute asphyxia insult of shorter duration than
10-minute rule of thumb referred
to in the Rennie and Rosenbloom
review.
[239]
Professor Smith further to his professional
report reiterated in his testimony that an acute profound injury
should not imply that
it is a
process
that is linked to a pattern.  Rather, it is a term that a
radiologist gives to the pattern, which is of damage to the grey
matter
of the brain, that is the basal ganglia and thalamus, also
known in experimental work as the striatum. He cautioned that one
cannot
conclude from looking at the brain injury pattern that the
damage was necessarily caused by a sudden, rushed, unexpected,
profound
total asphyxia.
[240]
He alluded to the mechanism of injury in
animal models forming the basis for his and Professor Anthony’s
view regarding how ST’s
injury probably occurred. He emphasized
that repeated insults over time in the near-term human foetus mimic
what happens during labour
in the animal models that have been
researched, and that the foetal sheep studies fit in with the
analogous situation during labour
where there is no sentinel event.
In such an event, there is a gradual changeover in the foetal
condition from reassuring to non-reassuring.
[241]
He too explicated that subthreshold hypoxia
does not necessarily cause an injury on its own but that it is
followed by a superimposed
acute process that causes the grey matter
brain injury. The subthreshold situation just causes increased
vulnerability to what is
going to follow.
[242]
His opinion of what happened in this case
is that due to suboptimal monitoring and the plaintiff’s prolonged
persistent bearing
down, acidosis probably developed upon which was
superimposed the inappropriate application of fundal pressure. He
illuminated that
if one applies external mechanical force that one
has no control over what pressure one raises.
[243]
His review of the plaintiff’s case
revealed no sentinel event, therefore nothing unknown and no
umbilical cord prolapse. But even
supposing a true sentinel event, he
emphasized that such a situation would not have happened without
warning.  Instead, one
would have been able to see it coming as
it were, reflected by a change in the foetal condition with reference
to foetal heartrate
changes.
[244]
He emphasized that while the 10-minute rule
of thumb has proved to be a useful guide, there is a degree of
biological variability
and variation in the severity of the insult
and the prior state of the foetus, hence it is helpful to re-examine
the evidence from
time to time as he has done.  The data
supports the evidence provided by the primate studies regarding a
worse outcome if an
acute near total insult is superimposed on a
previous episode of partial hypoxia.
[245]
Professor Koll described an acute profound
injury as one that tells us it’s a consequence of an acute profound
“insult”. In
his view, in order for the injury to manifest itself
there would have to be a complete occlusion of blood supply to the
baby. He
deferred to the opinion of Professor Cooper regarding the
cause of the injury
in casu
,
but not before giving away his ostensibly narrow view of brain injury
in neonates:
“
As
I said right at the start, my knowledge of …brain injury in
neonates is confined to the mechanism of acute profound and an
understanding
that acute profound injury is caused by an acute
profound event.  And a partial prolonged injury is caused by a
partial prolonged
event. And that is the extent and that is what I
have always used in my, in interpreting my understanding and where to
look to see
if any negligence has occurred.”
[246]
He disagreed with the hypothesis of
subthreshold hypoxia put forward by Professors Anthony and Smith,
dismissing it on the basis that
there are no studies in the
conventional literature that supports it, despite been pointed to
these.  In his ultimate view of
it all the animal studies put up
as justification for the theory’s validity (already accepted in the
literature on which Professors
Anthony and Smith rely) do not fill
him with confidence because in his view, whist animal research is of
considerable value, there
is “not a simple walkway between animal
studies and human studies.”
[247]
From an obstetric point of view, based on
his review of the foetal and maternal condition as recorded in the
maternity case record
(he did not offer an opinion based on the
plaintiff’s evidence), the nature of the injury and relying on his
current understanding
of the literature, he concluded that the injury
occurred shortly before birth and in the classic manner in which he
understands acute
profound injuries to occur. Indeed, asked whether
he accepted that the susceptibility of the foetus during the second
stage of labour
will vary, depending on the extent to which its
compensatory mechanisms have already been deployed in the earlier
part of labour,
he reverted to his simplistic understanding of the
stereotypical causative mechanisms for the two brain injury patterns:
“
It
is a difficult one to answer.  We have always believed that that
unless the baby has a prior injury, it is not going to get
an acute
profound injury. And that is my understanding of it and that is what
I have always believed.
The
thing that predisposes a baby to injury, are things like inflammatory
syndromes and stuff like that.  But not partial, not
clinically
insignificant partial prolonged insult during the labour.”
[248]
He accepts that that the timing is
controversial and that it varies but aligns himself with those who
agree that the hypoxia has to
be present for
at
least
10 minutes for injury to occur.
[249]
Since there is no indication in the
maternity case record of any foetal distress according to him (again
glossing over the lay evidence)
and absent a partial prolonged injury
or mixed pattern being suggested to him as being the outcome, he
presumes that an acute profound
insult caused the injury in the
second stage of labour. Pressed to suggest what in his view might
have caused it in all the circumstances,
he had to concede ultimately
that he had no idea. He was firm however that the application of the
fundal pressure as alleged could
not have been the cause because that
would have had to entail a complete occlusion of the blood supply for
a period of at least ten
minutes.
[250]
Professor Cooper also insisted on a strict
application of the ten-minute rule of thumb.  In his view, if a
shuttle for blood
flow is occluded for less than 10 minutes it is
very unlikely to cause damage but beyond that it potentially can
cause damage.
[251]
He however conceded the notion, based on
the animal models, that damage might be caused other than by a total
occlusion provided it
ensues for a period of ten minutes.  This
is evident from his explanation that:
“
If
there is excessive force during a contraction, theoretically and I
think based on some animal models as well, it may increase the
intracranial pressure and if that occurs to a severe extent, then
blood flow coming from the heart and via the blood vessels to the
brain could be impeded, so excessive pressure during a contraction,
resulting in increased, marked increased, firstly into uterine
pressure, which should be transmitted or translated to the
intracranial pressure inside the head, the skull, that could
interfere
with blood flow.  However, to cause this kind of brain
damage it would have to have been for a continuous period of at least
10 minutes … based on what I have said before so one would need to
know how long if there was excessive pressure that (was) exerted,
one
would need to know for how a period it was exerted.”
[252]
Despite his fastidious hold on the
ten-minute rule, ironically owed to animal studies, he does not
accept the Mallard papers that
give weight to the subthreshold
hypoxia theory because it is based on animal studies which in his
view is not an appropriate model
to test the hypothesis because
“there is no situation during…labour that would give you
intermittent five-minute complete lack
of blood flow to the brain.”
[253]
He was however open to the suggestion that
there are a lot of unknown aspects of what the foetus experiences
during labour, and that
there might, in the case of an acute profound
injury, not be a recognized sentinel event. He was therefore prepared
to accept Schifrin’s
mechanism of cranial compression as being
causative of ischaemic and haemorrhagic foetal neurological injury:
“
When
you have external fundal or if you have got a situation and it may be
just one of excessive uterine contractions that there is
external
pressure of the foetus’ head, then that would compress the blood
vessels and interfere with blood flow to the brain.
So, if that
is accepted hypothesis and it has been shown in the animal situation
…”
[254]
He further agreed with Professor Smith’s
exposition concerning the underlying pathophysiological concepts of
excessive external
pressure on blood vessels collapsing them and
causing ischaemic injuries as well as the concept that during a
contraction, the intrauterine
pressure on a foetus increases in
response to which it raises its own internal blood pressure to ensure
that blood circulates to
tissues and organs.
[255]
In the current situation however, he
dismissed the notion that the application of the fundal pressure, as
described by the plaintiff,
is a probable explanation for ST’s
encephalopathy, because a continuous period of 10 minutes of pressure
would have been necessary
to cause it.
[256]
He does not accept that there is a
connection between the “series of earlier insults” relied upon by
the plaintiff falling outside
of the 10-to-45-minute period and ST
sustaining the brain injury. This would in his view be akin in the
human situation to a partial
prolonged type of injury.
[257]
He resisted the reliance on animal studies
as underscoring the subthreshold hypoxia theory on the basis that
these cannot be automatically
applied to the human situation because
the human brain is a lot more complex and is unlikely to exactly
mimic any of the models.
[258]
This notwithstanding he agreed under cross
examination that it is not an exact science that all foetuses react
in exactly the same
manner when they are subjected to insults. He
conceded that there is always a variation or often a variation and
therefore one cannot
say there is an absolute minimum time for this
or an absolute maximum time for that.
[259]
He accepts the authority of Rennie and
Rosenbloom (which ironically endorses the foetal monkey studies) and
that this article can
be used as an indication as to what happens in
the human brain as elucidated by the authors.
[260]
He further accepts that a hypoxic
event in a foetus can be of different magnitudes and duration.
[261]
He accepts the notion that insults can last
for a substantial period of time before there is actual damage done
to the brain.  He
was also prepared to concede (as propounded by
Rennie & Rosenbloom in their review concerning primate studies)
that you get a
worse outcome if an acute near total insult is
inflicted after a previous episode of partial hypoxia. Whilst at
first tentatively
suggesting that this is akin to a partial prolonged
injury scenario, he conceded the logic that if the foetus is already
acidotic
because of the period of partial asphyxia (in other words
she has suffered
insults
of asphyxia as opposed to damage), then damage follows on that, and
the foetus is more susceptible then to acute profound damage.
[262]
Responding to the submission that it is the
plaintiff’s case that this end damage was done during the period
when the traumatic
fundal pressure was applied, and even assuming the
mechanism which he agrees (namely that it could have caused
intracranial pressure
beyond the level that would allow for adequate
blood flow to the point that it severely affected or even shut down
the blood flow),
he yet maintained that such a situation would had to
have endured, or the pressure have been applied, for a period of ten
minutes.
This however rests on the premise that fundal pressure
contended for by the plaintiff was applied during a contraction.
The logic he postulates is that a contraction (which is what would
raise the intracranial pressure) normally only persists for a
period
of 45 minutes, rendering the plaintiff’s submission of this being
the cause of the ST’s brain injury improbable.
[263]
Put to him that given the plaintiff’s
evidence of how the fundal pressure intervention was applied and it
being unlikely for this
reason that one could expect it to have
coincided with the plaintiff’s contractions, he was prepared to
make allowance for a period
of “five, six, eight minutes” as
being possibly causal to the damage, but this was premised on an
acceptance that there was “severe
compromise” to the foetus prior
to the second stage of labour.
[264]
He
was reluctant to concede that it was reasonable to add the period of
5 minutes it took after birth until ST breathed on her own
as
constituting a continuing insult and period of bradycardia on the
basis that ST would have been getting some perfusion by bag
and mask
ventilation during the period immediately after her birth once the
resuscitation efforts commenced. He accepted however
that there was
perhaps one single minute in which  the insult could have
continued until the Apgar assessment by Sister Tshanyingca.
[85]
He also accepted that there would have been ongoing damage occasioned
to the brain as a result of cell death in the hours and even
days
after the damage causing event which is known to continue after
reperfusion of the brain.
[265]
Referred to the one case in the paper of
Pasternak where a bradycardia of only a few minutes had been
documented (3-4 minutes) before
an acute profound insult had
occurred, Professor Cooper was not prepared to accept the obvious
logic that the window of 10 minutes
could therefore be narrowed.
Asked to suggest on what authority he might be so dogmatic that one
needs at least ten minutes of bradycardia
before acute profound
damage will accrue, he could not point to any alternative authority
other than Rennie and Rosenbloom’s 10-minute
rule of thumb (which
postulates the minimum time to get a compromised baby out).
Ironically, in the same review the authors note
that the “rule”
has served as a useful guide of when the scale is tipped on the side
of an obstetric emergency justifying intervention
to get a baby
delivered, and further points to the significant qualification that
there is a degree of biological variability and
variation in insults
as well as the prior status of each foetus that would mean that the
“rule” cannot be applied inflexibly.
The authors in their
conclusion in the review incidentally note that human cases of acute
profound hypoxic ischemia in which the
insult duration can be timed
with precision remain
rare.
Was
the injury avoidable?:
[266]
Professor Anthony’s answer is a
resounding yes:
“…
the
whole process of fetal monitoring of any pregnancy, any labour is
based upon the notion that an evolving insult to the fetus and
evolving hypoxic …[indistinct], can be detected and through
intervention be mitigated either by removing whatever reason there
may be for hypoxia, or by intervening to deliver the baby in order to
allow the baby to breath outside the uterus.  The process
of
intervening is designed to take place prior to injury occurring and
the whole process of auscultating the fetal heart, the whole
process
of using CTG monitoring, is of signs in the baby that there is
evolving hypoxia that there is a hypoxic insult with a goal
in mind
of intervening in order to prevent fetal injury.  And I do not
think that anybody doubts that this is possible and should
be done,
and it is the reason why there are universal protocols of fetal
monitoring during labour.  In this particular case,
the question
asked by counsel was whether this injury could have been averted, and
the answer is yes, yes, on the basis of the fact
that adequate
monitoring should have taken place, during the first stage of labour,
meaning auscultation of the fetal heart rate
in relationship to
contractions.  It should have been avoided also on the basis of
the fact that when the mother began bearing
down that there should
have been some attempt to deal with her pain to try and avoid her
bearing down efforts and to more importantly
monitoring the response
of the fetus to those bearing down efforts and it could have been
avoided to the extent that interventions
that took place during the
second stage of labour that were likely to aggravate any pre-existing
fetal hypoxia should not have taken
place, and here I am referring in
particular to the this question of fundal pressure.”
[267]
In response to Mr. Van Der Linde’s
assertion that an acute profound injury is by its nature unavoidable
and therefore not preventable
Professor Anthony opines that:
“
M’Lady
in answer to counsel acute profound brain injury as I have already
suggested to you is something which may sometimes occur
as a result
of a (sentinel) event which may be unavoidable.
On the other hand,
even an acute profound brain injury which takes place over a period
of let us say 10 minutes, during the second
stage of labour is
preventable to the extent that if the injury and if the insult is
related to an intervention which is prescribed
then that by
forbearance from carrying out that particular intervention you would
avoid the injury.
If
you had been monitoring the baby correctly anyway during the second
stage of the labour and had any reason to be concerned that
there was
a problem developing especially during the second stage of labour,
there is always the possibility of operative vaginal
delivery which
can take place very swiftly using a pair of forceps or a vacuum
extraction.”
[268]
Again, put to him that a sentinel event by
the very definition of an acute profound injury is not preventable
because it occurs too
suddenly and unexpectedly, Professor Anthony
agreed that whereas that might well be applicable to certain events,
this would not
be the case if the sentinel event is taken to be the
application of the external fundal pressure as
in
casu
which of its own might lead to an
adverse outcome that was avoidable by forbearance in doing that which
is proscribed.
[269]
Dr Koll opined that he did not believe that
the acute profound injury was preventable by any routine antenatal
and delivery care that
is administered in this day and age. This
approach however stems from his inflexible view of what the
neuroimaging of ST’s brain
purportedly dictates.
Possible
interventions:
[270]
Professor Anthony in response to the
assertion put to him by Mr. Van Der Linde that there was no way in
the last 45 to 50 minutes
from full dilatation to the baby’s birth
to have expedited her delivery, offered the following possibilities
to avoid the injury:
“…
that
is not true either the… the question of dealing with fetal distress
for (want) of a better word during this second stage of
labour is
dealt with in a
number
of standard ways.
If…
if the delivery can be accomplished using instruments that is
generally the approach taken which would mean either vacuum
extraction
or the use of pair of forceps. If that is not attainable
either because the patient is not fully dilated or for any other
reason
the approach to management is to restore oxygenation to the
fetus.
That
means intrauterine resuscitation and that involves putting the mother
on her side giving her oxygen stopping the uterine activity
and then
expediting delivery by whatever means is most rapid and that may mean
a caesarean section, or it may mean as I have already
suggested
instrumental delivery.”
[271]
Professor Anthony rejected Mr. Van Der
Linde’s assertion that forceps delivery or a vacuum extraction
procedure would not have been
viable options. He pointed to the fact
that the Maternity Guidelines, despite the risks inherent in these
procedures, propose instrumental
vaginal delivery in the case of
foetal distress.
[272]
Professor Smith, to whom it was put that if
a prolonged cord threat arose within the last ten minutes of the
birth process there is
nothing that can be done, discounted such
resignation. He lamented the fact that counsel had not necessary
interrogated this with
Professor Anthony as the expert obstetrician
but added his view but there are mechanisms and procedures and things
that they would
do to gain time to deliver the baby and to relieve
the obstruction on the umbilical cord.
[273]
Indeed, this scenario is also clearly made
provision for in the Maternity Guidelines.
[274]
The observation ought to be made here that
senior hospital staff appeared to have been on hand at the hospital
to deal with any crisis
at the time of the plaintiff’s delivery as
was indicated by the fact that both Dr Yama and the night
superintendent arrived promptly
after been called to assist with the
resuscitation of ST.
The
role and duties of the experts:
[275]
As indicated elsewhere, on the score of
reasonableness and negligence the experts were at least in agreement
that meaningful foetal
monitoring that considers the foetal heart
rate in relation to the mother’s contractions with a view
specifically to picking up
on any foetal distress, is consistent with
the standard of reasonable care outlined in the Maternity Guidelines
and a
sine qua non
for a safe delivery without any adverse outcomes. The sole opinion of
Dr Koll that there was no beach of duty on the part of Sister
Tshanyingca in her management of the plaintiff’s labour is
diminished against the facts which I have found proven.
[276]
The real disagreement arises concerning how
ST’s basal ganglia injury could plausibly have arisen from that
breach of duty.
[277]
It
is well-established that where there are conflicting opinions of
experts in the field, the court’s determination of the issue
at
hand must depend on an analysis of the cogency of the underlying
reasoning which led the experts to their conflicting opinions.
[86]
[278]
Dr Koll, in respect of this aspect, could
advance no cause for the acute profound damage.
[279]
Both Professors Anthony and Smith however
offered a plausible, logical explanation for how the injury may have
been sustained, backed
up by contributions from the literature to
show that their reasoning is scientifically valid and supported by
others in the profession.
[280]
Professor Cooper was hard pressed to accept
the plaintiff’s experts’ views but relented on the issue
concerning the relevance
of subthreshold hypoxia/ishaemia.  This
notwithstanding, he was only prepared to accept Professor Smith’s
postulation of the
external abdominal pressure as being causal to the
final insult on the assumption that this would have entailed a total
or near occlusion
of ST’s blood supply for 10 minutes based on
Rennie and Rosenbloom’s 10 minute “rule of thumb”.
[281]
He had to be reminded however of the
qualification that despite the concept that damage begins to accrue
after ten minutes of an acute
profound hypoxic ischaemic insult
providing a framework for how long an obstetrician has to get the
baby out, that there is a degree
of biological variability and
variation in the severity of the insult and the prior state of the
foetus.
[282]
Even when referred to the Pasternak case of
a few minutes he remained reluctant to concede the obvious, namely
that “a few minutes”
denotes less than 10 minutes. The fact that
he did not wish to concede continuous bradycardia during the
application of the traumatic
fundal pressure detracts somewhat from
his objectivity. Other than this fastidious resistance to the helpful
understanding put forward
by the plaintiff’s experts, he too could
not explain how the injury occurred.
[283]
Mr. van der Linde criticised Professors
Anthony and Smith for “attempting to develop a theory of so-called
‘sub-threshold hypoxia.’”
I however saw nothing of the
kind. I accept their
bona fides
that they are merely interpreting what has long been stated in the
literature to support their view helpfully offered to the court
as to
how the acute profound injury pattern could have resulted in the
peculiar circumstances of the plaintiff’s labour.
In any
event, the notion that the foetus entered the second stage of labour
with an underlying degree of hypoxia which gathered momentum
earlier
in the plaintiff’s labour was ultimately accepted by Professor
Cooper as contributing to the final insult.  The resistance
was
rather in his reservation that the bradycardia could not have been
continuous for a period of ten minutes, and that the ten-minute
rule
was unyielding.
[284]
The
plaintiff’s attorneys, in supplementing the trial bundle on the
fourth day of trial, included a document described in the index
thereto as an Article / Letter to the Registrar by Professors Anthony
and Smith, and Ronald van Toorn which I was informed during
closing
arguments purported to deal with an article authored by one Bodiat.
I did not have sight of this letter because immediately
the
bundle had been emailed to me (the hearing proceeded via an internet
platform and documents were constantly being added via email),
and
before I had had an opportunity to download it, Mr. Wessels placed on
record that it had been included in error and the court
should
disregard it.  I understood from Mr van der Linde that the
letter is contentious and that it has appeared in a journal:
Professional Nursing Today 2020. He explained in the letter that the
authors take umbrage to the reference by Bodiat to a judgment
of this
court in Shange v MEC for Health Province of KZN.
[87]
Although I had regard to the judgement itself, because this was
referenced in the defendant’s heads of argument, whatever offence
has been registered against the article, or in the letter, has not
informed my thinking. Indeed, neither should it.  The obligation
of this court is to consider the evidence properly before it.
[285]
Mr. van der Linde pointed in
Shange
to criticism by the court against the subthreshold hypoxia theory
propounded by Professor Anthony and Professor Smith, but these
comments again cannot be of application to the evidence at hand. In
this court, my obligation was to establish the possible cause
of ST’s
brain damage in
this
factual scenario and against the background of the expert views
presented to me concerning this unique situation.
[286]
Mr. van der Linde submitted that the
“alignment” of Professor Anthony and Professor Smith was
highlighted when he advised in response
to a question from the court
that he, together with a group of radiologists and obstetricians,
have submitted a descriptive article
with regard to incidents of
acute profound brain injuries in South Africa to an international
journal but that they were still awaiting
peer review of it. That
article was not made available during the course of the trial. Mr.
van der Linde submitted that the purport
of the article is to advance
the theory of the existence of a so-called ‘sub-threshold hypoxia’
which does not show up as an
injury or injuries on an MRI scan and he
went so far as to suggest that they were using the court as a forum
to validate “their
theory.”
[287]
On the basis of this background Mr. van der
Linde suggested that the objectivity of Professor Anthony and
Professor Smith should be
called into question.
[288]
To the contrary, however, neither of the
plaintiff’s experts in my view peddled a theory that is
inconsistent with what already
exists in the accepted literature, and
both were indeed quite mindful of their obligation to be objective in
justifying their conclusions
with reference to existing material
rather than to any paper which they have co-authored.  Professor
Anthony when he testified
in fact made no mention of their
collaborative article at all, neither was it raised with him in cross
examination.  Professor
Smith similarly did not refer to the
fact that there is a body of professionals engaged in researching and
interrogating this aspect
in his evidence either until I asked the
question referred to above so it can hardly be contended that there
was a concerted effort
on their part to test or validate the paper to
which they have contributed that is awaiting peer review.
The contentious
letter that was first included in a supplementation
of the court bundle by email was also promptly withdrawn immediately
Mr. Wessels
noted the mistake.
[289]
I
add that I can hardly be suspicious when experts are engaging in
research and writing articles about subjects that constantly come
before the courts in medico-legal matters such as this.  Indeed,
I would be surprised if they were not putting their wisdom,
training,
and vast experience into practice by collectively investigating and
trying to evolve “theories” that will hopefully
make a difference
not only in forensic but in clinical settings as well to eradicate or
minimise what has obviously become a serious
problem in government
hospitals with the birth of compromised babies.  In AN obo EN v
MEC for Health, Eastern Cape
[88]
the Supreme Court of Appeal was constrained to remark upon the
“prevalence of matters such as these” and the pity that despite
“this sad state of affairs” (that is the “serious and serial
negligence” in hospitals falling under the defendant and the
studied neglect of professional standards in these hospitals that
have become pervasive) and the need for urgent remedial intervention,
that such conduct does not appear to have abated significantly.
The situation is, as the court said, to be deprecated and something
needs to be done about the problem.
[290]
If that something entails that specialists
in the medical profession, who are also teachers and mentors having a
substantial influence
in public health care institutions, can put
this unfortunate experience of babies born with HIE to research in
order to establish
the cause of such injuries (which will then assist
in how the problem is addressed in future) I doubt that anyone will
hold this
academic zeal against them when they are coincidently also
engaged as experts on the vexed issue in our courts.
Conclusion:
[291]
The
failure of a professional person to adhere to the general level of
skill and diligence possessed and exercised at the same time
by the
member of the branch of the profession to which he or she belongs
would normally constitute negligence.
[89]
[292]
In Goliath v MEC for Health the court,
concerning the approach to be adopted in determining the issue of
negligence, noted with reference
to Lord Justice Hobhouse’s dictum
in Ratcliffe) that:
“
At
the end of the trial, after all the evidence relied upon by either
side has been called and tested, the judge has simply to decide
whether as a matter of inference or otherwise he concludes on the
balance or probabilities that the defendant was negligent and that
such negligence caused the plaintiff’s injury.  That is the
long and short of it.”
[90]
[293]
At the close of the case after hearing the
testimony the question is whether there is sufficient evidence to
give rise to an inference
of negligence on the part of Sister
Tshanyingca. In this regard the court stated in Goliath that:
“…
it
is important to bear in mind that in a civil case it is not necessary
for a plaintiff to prove that the inference that she asked
the court
to draw is the only reasonable inference.  It suffices for her
to convince the court that the inference that she advocates
is the
most readily apparent and acceptable inference from a number of
possible inferences (AA Onderlinge Assuransie Assosiasie Bpk
v De
Beer
1982 (2) SA 603
(A); see also Cooper & another NNO v
Merchant Trade Finance Ltd
2003 SA 1009
SCA)
”
.
[91]
[294]
I am satisfied that ST’s brain injury was
caused by the factors as described by Professors Anthony and Smith
which, at least with
regard to the physiological mechanism of how the
damage probably occurred, is not in contention. The experts were
divided in the
end only by the question of how long it would have
taken for the acute profound damage to ensue and whether it was
probable in this
factual scenario that this could have happened.
They were on one hand prepared to accept the authority of Rennie and
Rosenbloom
regarding the existence of what they unreasonably
postulate as a rigid rule (as opposed to a “rule of thumb guide
indicated for
an entirely different purpose) but evidently seek to
ignore the qualification and very sensible caution sounded in the
article to
obstetricians that recognition needs to be given to the
fact that every insult and every foetus is different.
[295]
The circumstances here were indeed very
unusual but all the elements of a perfect storm were clearly in the
making to conduce to the
unfortunate adverse outcome. I have outlined
above what probably happened following on Sister Tshanyingca’s
dismissal failure to
properly monitor the plaintiff and her foetus
and to mitigate the obvious problem and risks arising from the
plaintiff’s early
and in effect prolonged pushing and bearing down
before full cervical dilatation culminating in a situation whether
she was faced
with a baby stuck in the bony birth canal of a mother
who was by then too exhausted to push her out, necessitating the
cutting of
an episiotomy and the application of the traumatic fundal
pressure. Each of these actions in the unfortunate concatenation had
a
deleterious effect on the foetal wellbeing, leading to the final
acute insult that caused the damage.
[296]
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.
[92]
[297]
I cannot conclude that the plaintiff’s
experts’ views that the application of the traumatic fundal
pressure applied at the end
of the series of these events is not
capable of logical support.
[298]
When
the factual premise is considered in its entirety, the negligent
monitoring, the premature and or prolonged pushing and the traumatic
fundal pressure all logically contributed to and have a sufficiently
close connection with the damage that resulted.  This satisfies
the “but for” test envisaged in Oppelt v Department of Health,
Western Cape and the cases referred to therein.
[93]
[299]
In
the result I make the following order:
[94]
1.
The defendant is held liable to compensate in whatever form or manner
allowed in law whether in cash
or in kind, the plaintiff’s agreed
or proven damages arising from the cerebral palsy suffered by the
minor child, ST.
2.
The defendant shall pay the plaintiff’s party and party costs
relating to the merits, together
with all reserved costs, if any,
which costs shall include:
2.1
the costs of the preparation of their reports and qualifying fees, if
any, of the following expert witnesses:
2.1.1
Professor Andronikou
-        Radiologist
2.1.2 Professor
Anthony          -
Obstetrician
2.1.3 Dr Kara

-        Paediatrician; and
2.1.4 Professor
Smith
-
Neonatologist.
3.
The defendant shall pay interest on the aforesaid costs at the
current prescribed legal rate of interest within 14 days from
date of
allocatur
or agreement to date of payment thereof.
B HARTLE
JUDGE
OF THE HIGH COURT
DATE OF HEARING:
12, 13, 14, 15, 16
and 23 October 2020
DATE
OF JUDGMENT:
18 October 2021*
*Judgment
delivered electronically on this date by email to the parties.
APPEARANCES
:
For the
plaintiff: Adv J J Wessels SC instructed by Zuko Nonxuba Inc, East
London (ref. Mr Nonxuba)
For
the defendant: Adv H J Van der Linde SC & Adv. Y Malunga
instructed by Norton Rose Fullbright care of Smith Tabata Attorneys,
East London (ref. Ms Demmer)
[1]
These
are the Guidelines for Maternity Care in South Africa (“The
Maternity Guidelines” or “the Guidelines” as was referred
to by
the expert witnesses) published by the National Department of Health
comprising a manual for clinics, community centres and
district
hospitals.  The 4
th
Edition (2015) was included in the bundle of literature relied upon
by the parties and referenced during the trial proceedings. None
of
the expert witnesses who testified at the trial or provided
professional reports conducing to the determination of the issue of
the claimed negligence suggested that the Guidelines are idealistic,
unattainable or pose standards of care that are beyond the pale
of
the reasonable medical practitioner or nurse involved in
administering maternal and neonatal care in the public hospital
sector.
[2]
Professor
Anthony who testified as an expert for the plaintiff’s case
however expressed the opinion that the monitoring of the
plaintiff
and her unborn baby on the whole was substandard and non-reassuring
of the foetal condition.
[3]
The
nurse’s clinical notes of the first assessment undertaken on the
face of it do not evoke concern.  These, recorded at
16h12,
note (in summary) that the plaintiff was admitted at 16h05 on
2.05.16 with a history of labour-like pains.  On examination
she was found to be having contractions with the foetus lying in a
cephalic presentation.  The estimated foetal weight was
about
3kg.  Contractions were palpable with one contraction occurring
every ten minutes. The foetal head was palpable 4/5ths
above the
pelvic brim and the foetal heart rate was documented at 142 beats
per minute.  On vaginal examination the cervix
was 2cm dilated
and a show was evident at the time of examination.  Latent
labour was diagnosed, and a review planned for
four hours later.
The plan of management was to start a CTG and report any
abnormalities to the medical officer on duty.
There is no
indication as to why the staff thought it necessary to start a CTG,
usually reserved in government hospitals for high-risk
labour,
except for the risk factor indicated on the initial assessment of
labour chart that the plaintiff was a primigravida.
[4]
Professor
Cooper, paediatrician with sub speciality in neonatology briefed by
the defendant, in his report dated 10 July 2019 noted
regarding the
maternity case record provided to him to furnish his opinion that
this page was blank when he was asked to review
the matter.  Dr
Koll, obstetrician and gynaecologist, also appointed by the
defendant, in a report dated a few days before
(28 June 2019) also
coincidentally remarked that this chart forming part of the
maternity case record was not filled in.
The chart that was
presented during the trial is dated 3 May 2016 (no time reflected),
purports to have been completed by Sister
Tshanyingca, omits any
detail opposite the subject “assessment”, and is not
countersigned or checked by any counterpart.
A note at the
foot of the page urges the person recording the examination to
complete the relevant notification form if any birth
defects are
noted. The impression created by the maternity records that were
provided is that no such report was made.
[5]
See
footnote 4.
[6]
It
transpired from the nurse’s evidence that this was one Dr Yama.
[7]
Certain
of the experts did however personally consult with the plaintiff
before filing reports. Dr Kara, a specialist paediatrician
consulted
with her and assessed ST on 17 August 2018. Dr E Mugerwa-Sekawabe,
specialist obstetrician, saw the plaintiff on 17 October
2018.
Professor Christianson, a paediatrician and sub-specialist
geneticist briefed by the defendant, also personally consulted
with
the plaintiff on 27 November 2019 as did Dr C B Bowen on 3 October
2019. The latter is a gynaecologist and obstetrician appointed
by
the plaintiff.
[8]
One
of the features of the plaintiff’s narrative not in common with
the records maintained by Sister Tshanyingca, for example,
is the
alleged application of fundal pressure, but the note of the Dr Yama
who treated ST after her delivery records that the nurses
applied
fundal pressure during the birth process.  Other differences
which emerged from the plaintiff’s testimony was that
she was
largely left to her own devices and unattended by the nursing staff
(and pushed prematurely in their absence) and that
she was monitored
on only three occasions whereas the records maintained by Sister
Tshanyingca purport to present a different picture.
There were
further other subtle differences mentioned by the plaintiff
regarding the management of her labour which contradict
what was
noted by Sister Tshanyingca.
[9]
This
defence raised by the defendant is predicated on the majority
finding by the Supreme Court of Appeal in AN obo EN v MEC for
Health, Eastern Cape
[2019]
4 All SA (SCA)
in
which it was accepted that an acute profound brain injury is a
sudden injury as opposed to one developing over a period of time,
occurring “without warning” and is to be distinguished from a
partial prolonged hypoxic ischaemic injury which occurs
progressively.
The effect of this understanding is that by the very
nature of an acute profound brain injury, it is not preventable.
For
this reason, a plaintiff will have difficulty establishing
factual causation even if negligent conduct of the hospital staff in
failing to monitor is found to have created a risk. See also AP obo
KM v MEC for Health, EC,
[2018] ZASCA 141
(1 October 2018) at [65].
[10]
One
has to read these obvious points of disagreement in as qualifying
the general statement in the previous paragraph of a satisfactory
or
uneventful labour.
[11]
He
amplified his views when he testified with particular emphasis on
what he was advised the plaintiff would say concerning the
inappropriate application of fundal pressure during her labour.
[12]
Neither
his report nor the conclusions of Prof Christianson referred to in
the next paragraph featured at the trial.  The parties’
pretrial conference minutes do not reflect their collective thoughts
on these contributions either, but they recorded the standard
agreement that the documents are what they purport to be.  I
mention these experts’ views to present a comprehensive picture.
They are evidently not contentious and significantly rule out causes
other than intrapartum asphyxia as the cause of the HIE. Indeed,
the
focus turned to what had happened in the second stage of the
plaintiff’s labour which it appears to have been accepted was
when
the damage causing event must have occurred.
[13]
Sister
Tshanyingca appeared to have written down in her clinical notes a
measure of 5cm in this regard.  The specialists mostly
read it
as a six because on the face of it, it could be either a 5 or a 6.
Drawn in her testimony on what she meant to write down
Sister
Tshanyingca said “6cm”, but in relating about the critical
moment from when the plaintiff started pushing, she said
on one
occasion that it was from 5cm, and on another, that it was at 6cm
dilatation.
[14]
There
was one dissenting view that the foetal heart rate pattern indicated
on the CTG trace at 16h20 was non-reassuring (“abnormal
and
ignored”).  This was expressed by Dr E Mugerwa-Sekawabe,
specialist obstetrician and gynaecologist, in a report dated
17
October 2018 filed on behalf of the plaintiff but it is not clear
why.  His/her report was not included in the trial bundle
but
was briefly referred to in the examination of Dr Koll.  The
general impression of the experts who testified at the trial
however
is that there was nothing of concern regarding the foetal status at
this juncture. Prof Anthony appeared to accept that
the heart rate
recorded at this stage was “apparently normal”, but his abiding
concern was that absent compliance with the
Maternity Guidelines in
respect of how it was supposed to have been assessed, that none of
the readings noted down were reassuring
of the foetal wellbeing. It
is significant to note incidentally that he testified before Sister
Tshanyingca, so his comments were
premised throughout on the case
that was portrayed in the maternity case records save what was
additionally put to him by counsel.
[15]
I
have elsewhere indicated that what Sister Tshanyingca wrote in her
notes looked like a “5” but can also be read as a “6”.
[16]
This
was probably the medical officer on duty in the early hours of the
morning when ST was delivered who was identified as Dr Yama.
[17]
This
is consistent with Dr Yama’s HIE score of 13 noted after ST’s
delivery.  Dr Westgarth-Taylor also qualified the injury
as
mild. None of the experts who testified disagreed with this
assessment of the severity of the injury.
[18]
This
presents a departure from the defendant’s point of view that an
acute profound brain injury can only be attributable to a
sudden and
catastrophic “sentinel” event.
[19]
In
practice the radiologist suggests the mechanism of the injury in
describing the pattern, or rather the description of one or
other of
the known brain injury patterns (acute or partial prolonged) have
come to be synonymous with typical mechanisms in each
scenario.
[20]
Frequent
Episodes of Brief Ischemia Sensitize the Fetal Sheep Brain to
Neuronal Loss and Induce Striatal Injury, Mallard, Gunn et
al, 1993,
Repeated Asphyxia Causes Loss of Striatal projection Neurons in the
Fetal Sheep Brain, Mallard
et
a
l.
1995
[21]
The
plaintiff’s experts in advocating that subthreshold
hypoxia/ischaemia can cause BG injuries relied on literature to
support
their view concerning how ST’s brain injury probably
arose. I therefore guardedly refer to the theory behind the concept
as
their
theory.
It is however convenient to refer to the collective views promoted
by them as the “subthreshold hypoxia theory”
which seeks to
challenge the view held by the defendant that an evolving insult can
only cause damage to the white matter regions
of the brain and on an
MRI will show up as a partial prolonged injury. By parity of
reasoning the defendant espouses the view that
it is strictly an
insult that arises rapidly and prevents oxygen flow to the brain for
a sustained period (usually arising from
a sentinel event) that
produces the acute profound picture on an MRI scan depicting damage
to the grey matter areas of the brain.
The plaintiff’s experts
promote the understanding that evolving compromise to the foetal
oxygenation can make it more susceptible
to a final acute profound
injury.  When such damage manifests itself it is obviously then
not as a result of a sudden event
or insult as is understood in the
classic sense of an acute profound injury and the neuroimage will
confirm damage to the grey
matter area rather than, as is the
current perception, to the white matter area. The timing of such
process is also distinctly
different then.  It is longer if you
include the period of compromise leading up to the final insult, but
the accruing of
the final insult itself (as the event that causes
the grey matter damage) might occur very rapidly (in less time than
the 10 minute
“rule of thumb” for classic acute profound damage
to accrue) exactly because the foetus is more susceptible to such
damage.
This in a nutshell is the “theory” that the
plaintiff’s experts expanded upon in their testimony.
[22]
This
is a reference to the partial prolonged brain injury type. The
understanding of our courts is that injuries coming along over
a
while will cause damage to the white matter of the brain. By
contrast an acute profound insult happens suddenly and causes damage
to grey matter.
[23]
This
submission was not really belaboured, the parties appearing to
accept that the resuscitation efforts of ST were reasonable.
The plaintiff’s case presented through the cross examination of
Professor Cooper was however to the effect that this extended
period
of bradycardia before ST breathed on her own vitally counted toward
the hypoxia/ischemia period of compromise that conduced
to her
unique brain injury.
[24]
According
to her this monitoring device was also in use when the fundal
pressure was applied during the second stage of her delivery.
This was co-incidentally confirmed by Sister Tshanyingca who
volunteered under cross examination that she had used the CTG during
the second stage of the plaintiff’s labour, albeit with no paper.
What is not clear is whether the CTG monitoring was indicated
as
necessary for any particular risk factor or if it was just randomly
used, whether at 16h20 or later by Sister Tshanyingca.
[25]
In
her testimony she clearly distinguished between the two wards.
One was evidently the antenatal ward which she shared with
other
patients who intervened on her behalf.  The other ward was the
labour ward where she was taken to be assisted in giving
birth
around midnight where she was alone with two nursing sisters.
[26]
See
record of proceedings dated 13 October 2020, page 19, lines 20 –
24.  I think she meant to say 8am the following morning
because
she repeated this explanation later.  Perhaps there was some
confusion in the translation. This might explain why
on her version
she was left unattended except for the ostensibly rote 2 hourly
assessments.
[27]
The
report of Dr Kara, paediatrician who the plaintiff consulted with on
17 August 2018 confirms a mention of such external pressure
having
been applied.  Dr Kara noted in his history taken from the
plaintiff that “a nurse pressed on her tummy (with her
knee) and
another nurse delivered the baby”.  Ideally this should have
featured in the initial grounds of negligence pleaded,
but this is
not, in my view, the fault of the plaintiff who would have had no
technical knowledge of or appreciation of what was
or was not stated
in her particulars of claim.  Indeed, in my experience few
litigants do, especially so in complex medical
negligence claims.
The mention of external pressure also coincidentally features in the
expert report of Professor Christianson
who assessed the plaintiff
at the Department’s behest on 27 November 2019.  Exact detail
is absent, but he records as follows:
“
At
about midnight she was having strong pains.  She called a
Sister who assisted her to deliver.
Her
abdomen was pushed
on and she was cut
below (episiotomy).  She delivered at about 01h45 on 3 May
2016.”  (Emphasis added).
There is indeed no
mention in Dr Bowen’s report of a history taken from the plaintiff
entailing any external application of pressure
to her abdomen.
The same applies to the report of Dr E Mugerwa-Sekawabe.
[28]
This
provides corroboration of a perceived difficulty recognized by
Sister Tshanyingca, co-incidentally followed by her cutting
an
episiotomy.
[29]
See
AN obo EN v MEC for Health, Eastern Cape [2019] 4 All SA (SCA) at
para [35]. These comments applied in respect of an earlier
edition
of the Guidelines but the basis for a reliance on standards of care
underwritten by the Department of Health as constituting
an
acceptance by the defendant of the requisite standard of the
reasonable health care practitioner to which her employees must
aspire pertains equally now. See also footnote 1.
[30]
See
Chapter 5 commencing at page 46.
[31]
The
example provided reflects only single recordings of the foetal heart
rate taken
after
contractions.  The defendant’s argument that only one
recording taken after suffices, provided it entails a proper risk
assessment of the foetal heart rate condition in relation to the
mother’s contractions, seems justified when such an example
is put
up as the appropriate standard in the Maternity Guidelines itself.
[32]
There
is no indication of any medication having been administered during
the plaintiff’s labour except Ringer’s lactate IV,
which
suggests that the episiotomy was cut without local anaesthetic.
The corollary is that the staff failed to record it.
Neither
Sister Tshanyingca nor the plaintiff were drawn on this aspect
during their testimony. Oxytocin was given to the plaintiff
by
Sister Tshanyingca in the third stage of her labour when the
placenta was delivered, but this too is only recorded in passing
on
the Summary of Labour chart.
[33]
This
exposition does not appear to be relevant for present purposes.
It was common cause that the plaintiff’s cervix was
fully dilated,
and the foetal head already engaged in the pelvis before the
episiotomy was cut so if a prolapsed cord scenario
had presented
itself, delivery by forceps or vacuum extraction would on
probability have been the indicated course to adopt.
[34]
See
the foreword to the Maternity Guidelines by the National Minister of
Health.  See also the comments of the court in AN
obo EN v MEC
for Health, Eastern Cape, Supra, at para [35] regarding the
significance of the Guidelines, albeit these relate to
the 2007
edition. See also footnote 1.
[35]
She
qualified on 3 March 2015.
[36]
The
plaintiff’s testimony was that by this time she was already
feeling the sensation to push. There is however no mention of
this
by Sister Tshanyingca in her notes at 20h12, neither is there a note
at 21h00. 21h00 is the time by when, according to Sister
Tshanyingca’s estimate given later in her testimony, the plaintiff
started to push.
[37]
The
unfortunate inference to be drawn from her explanation in this
regard is that she checked by rote.
[38]
This
information volunteered by her seems to confirm that she only
checked on the plaintiff two hourly which must explain why the
clinical notes were made at 20h12, 22h12, 00h12 and then at 00h32,
albeit the final entry was made retrospectively. This would
also
accord with the plaintiff’s version of only two examinations after
her admission, until she was ultimately taken to the
delivery ward.
[39]
She
only revealed the identity of this person when pertinently asked.
The same applies to the details of Dr Yama who assisted with
the
resuscitation of ST after her delivery.
[40]
She
did not clarify what this rate was, although on the Assessment of
the New-born Chart she puts this at ˃100/min which would
have
scored two points contributing to the total Apgar score. On the
First Examination of Neonate chart, she however selected the
choice
of “bradycardia” opposite the checkpoint of “Apex Beat”
among the options listed. The latter indication is entirely
consistent with the HI encephalopathy, but it does call into
question whether her first Apgar assessment was not overstated. The
experts agreed that her Apgar assessment at five minutes was
somewhat optimistic given the baby’s clinical condition but did
not interrogate her assessment at one minute.
[41]
The
Summary of Labour chart completed by her suggests that the repair
was done by one “O M Dina” rather than by herself.
She was
however not challenged on the apparent contradiction.
[42]
I
refer to my observation above that the Maternity Guidelines do not
pertinently set out what the staff are to do in the case of
precipitated labour.  The partogram template also does not
accommodate such a scenario in the way that a slow labour is given
recognition to on this graphic tool. It is more probable than not
that a rapid second stage of labour ensued rather than a slow
one.
[43]
Nothing
is stated about her perceived lack of cooperation at this assessment
although on the plaintiff’s evidence she was already
pushing from
around 20h00.
[44]
Apart
from confirming later, in a response to a question from the court,
that she applied a drip, she was not examined on why she
did so.
If one measures this step against the emergency management protocols
stated in the Maternity Guidelines, the inference
is tempting that
she recognized a risk.  The converse of that is that she
randomly or indiscriminately used this facility.
[45]
Here
concerns are noted, but bizarrely they are deferred to the next 2
hourly assessment.
[46]
Professor
Anthony explained that the categorisation of the decelerations as
early, or late, or variable, or no decelerations, would
only be
applicable in the case of electronic monitoring.  I also refer
to the Maternity Guidelines which provide for the unique
scenarios
where such monitoring would be vitally necessary. Evidently the use
of a CTG requires an interpretation after the fact
and judging from
the earlier tracing of 16h20 (when paper was ostensibly available)
this is the procedure that was adopted by the
day nurse at least.
[47]
The
night superintendent was also not identified, neither was Sister
Tshanyingca drawn on this person’s involvement.
[48]
The
gender of Dr Yama was not clarified but it was generally assumed
that it was a male doctor hence this judgement’s reference
to him
as such. I apologise if this is not the case.
[49]
See
Chapter 3 of the Maternity Guidelines at 27-28 under the rubric
“Referral notes using the SBAR Form”.  Dr Yama’s
qualification of his note as being retrospective suggests that he
was properly following the required protocol of the Department
with
regard to the obligatory record keeping.
[50]
The
emphasis is mine.  This is a further indication that Sister
Tshanyingca was not a lone operator in the delivery.
[51]
In
light of my observation above regarding the expected and
professional protocol on the part of Dr Yama in recording his
involvement
post-delivery once his assistance was called upon, it is
extremely mischievous to suggest that what he wrote down was based
on
his own assumption of what might have happened rather than what
he was informed by the attending nurse.  It is also extremely
unlikely that Sister Tshanyingca would not have seen his clinical
notes which in all probability would have been placed on the
file.
[52]
Dr
Yama was not called to testify.  I draw no adverse inference
against the plaintiff in this regard because of the reason
furnished
above regarding the standard of professional record keeping and the
reasonable assumption that he was compliant with
the reporting
protocols. Both the witness and Dr Yama are bound to do what is
prescribed in the defendant’s Guidelines. Both
were at the time in
the employ of the defendant.
[53]
The
plaintiff was assessed at 20h12 according to the case records so
this would mean, quite implausibly, that she went from 4 to
6 cm in
a span of 48 minutes and this on the witness’ version warranted no
separate entry in the clinical notes.
[54]
Several
concerns arise which the plaintiff’s experts would no doubt in the
course of preparing for trial have investigated had
this revelation
come earlier, such as, for example, the reason why there supposedly
was no paper, a vital accessory to the CTG’s
efficacy, or the
possibility that a recording saved in the CTG’s memory might still
exist.  This is an issue which could
have been addressed with
the management of the hospital.  The experts would also have
had an entirely different premise at
their disposal for their case
reviews. Tracings were available at the 16h12 assessment.
There was evidently also no stinting
on CTG assessments at the
plaintiff’s earlier admission to hospital so the CTG as a tool was
available to the hospital for its
use and there was no issue then or
in respect of the 16h12 assessment concerning its functionality in
any respects.  Indeed,
Sister Tshanyingca confirmed the CTG’s
availability and that this is how she gained her median rate by
looking, inter alia, at
numbers shown on the CTG machine’s screen.
Without a proper interpretation after the fact of these assessments,
which may very
well have excluded a consideration of ST’s heart
rate in relation to the plaintiff’s contractions that were
increasing in number
and frequency, this suggests a failure to
appreciate the real significance of a CTG assessment and a
derogation of her responsibility
especially to determine whether
there were any decelerations and what the impact of those in the
whole scheme of things in fact
were.
[55]
Provision
is made on the Assessment of the Newborn chart to indicate “Problems
with delivery”.  Sister Tshanyingca left
this blank, she also
purposely selected “no” in relation to the question whether
there was foetal distress.  Had her answer
been in the
affirmative, the chart on which she wrote would have required that
the baby be assessed for neonatal encephalopathy.
She was in any
event assessed on this basis, but the more worrying fact is that the
records maintained by the witness cannot be
reconciled with the
neonatal records.  This calls into question the reliability of
any of the records kept by her.
[56]
See:
NEG v Jagers 1984 (4) 437 (E) at 440 F.
[57]
See:
National Employer’s Mutual General Insurance v Gany
1931 AD 187
at
199.
[58]
Selamolele
v Makhado
1988 (2) SA 372
(V) at 374.
[59]
SFW
Group Ltd v Martell et Cie
2003 (1) SA 11
(SCA) at para [5].
[60]
This
is dealt with in Chapter 3 of the Maternity Guidelines.  The
stated purpose of the requisite standard of recordkeeping
is,
inter
alia
,
to present a historical record of clinical events to account for all
care given to patients; to ensure that they are complete
and
accurate with regards to the information they contain; and to ensure
that legal requirements are met in recordkeeping practices.
The Guidelines ironically notes among the reasons stated for the
Department’s insistence on a decent quality of note keeping
the
rising demands on healthcare systems to deliver quality patient care
as well as because of “the constant increase in medico-legal
cases”.  A further important component of quality assistance
is audits of clinical notes in patient records, as based on
these
standards.  Audit tools are used (in their purposeful design)
to assess notes and partograms.  It would therefore
be absurd
to suggest, when it comes to a case review, that no value can be
placed on Dr Yama’s note which ostensibly complies
with these
important protocols. See also paragraph [129] above in which I
highlight that this purported conduct of his of writing
down
something other than what he was informed is tantamount to him
having committed a criminal offence.
[61]
This
was how Professor Smith described the experience of a foetus in the
birth passage.
[62]
This
was confirmed by both Professors Smith and Cooper. There would have
to have been significant bradycardia preceding the brain
injury
sustained by ST. Professor Smith suggested that her heart rate would
probably have come down to below 90 -bpm.
[63]
This
gap was referred to by Dr Koll as the “single omission” by
Sister Tshanyingca to record the reading in between 22h00 and
00h12.
[64]
To
put his view into perspective, he is in private practice presently
only as a gynaecologist but prior to going into private practice
trained and worked in public hospitals in Gauteng. He elaborated
that he had also dealt with several case reviews in respect of
medical negligence arising in Gauteng, the Eastern Cape and in
Mpumalanga.  In the last 20 years he has not been in a
government
labour ward and the only cases he has seen are medical
malpractice cases. This may explain why he thought that three
recordings
were necessary instead of the two (before and after
contraction rates) specified to be the requirement in terms of the
present-day
Guidelines applicable here.
[65]
See
footnote 66.
He
appears to have missed the fact that the present Guidelines do not
require three recordings.
[66]
I
mentioned elsewhere however that the example provided by the
Department in its Guidelines of what a partogram should look like
applying it to a real live situation ambiguously suggests that it is
acceptable to write down only the recording that reflects
the
heartrate
after
the mother’s contractions as opposed to both.
[67]
The
total duration of the second stage of labour for a first-time mother
should not exceed two hours.
[68]
The
duration of active pushing in the expulsive phase should not exceed
45 minutes.
[69]
Professor
Anthony in fact lamented that CTG tracings are particularly
sensitive, but non-specific.  The problem that obstetricians
have is that there are many other things that can cause
decelerations apart from hypoxia, but decelerated changes are at
least
a given when there is hypoxia.
[70]
He
deferred to the obstetricians in this respect but suggested that if
the contractions were very strong and she was bearing down
that this
might have interfered with the placental blood flow.
[71]
Ironically
this is exactly what the plaintiff described was the result of being
in pain and pushing and feeling the urge to bear
down over the
extended period. When it came time to deliver she had no energy to
push whatsoever.
[72]
The
reference to intermittent was offered evidently to discount the
notion that there could have been a total cessation of oxygen
or
blood flow to the foetus, which is said to be a standard feature of
the acute profound injury type pattern.
[73]
Even
on Sister Tshanyingca’s evidence this was not sorted out because
the prolonged pushing continued.
[74]
The
nursing experts seemed to agree that the high level of intervention
warranted in this kind of situation ought to have been noted
in the
case record.
[75]
This
last observation is a repeat of the sentiment that the records do
not indicate foetal distress which misses the point.
A failure
to monitor properly taints the assumption that all is well.
[76]
Sister
Tshanyingca should have made a clean breast of things.  Her
remarkable and quick thinking attempts to resuscitate the
baby shows
a side to her ability that would be ungracious of me not to
recognize or to encourage as being among her attributes
worthy of
her calling as a nurse.  Her willingness to concede her
mistakes and the obligation to be accountable however evidently
requires to be appropriately addressed.
[77]
The
Syndrome of Acute Near-Total Intrauterine Asphyxia in the Term
Infant, Pasternak & Gorey, Pediatric Neurology, Vol 18 No
5, 391
[78]
This
period is stated to be between ten minutes, from the point of onset
of the acute insult (see the ten-minute rule of thumb referred
to in
paragraph [221], and forty-five to fifty minutes on the extreme
side.
[79]
Pasternak,
Supra
.
[80]
How
long have we got to get the baby out? A review of the effects of
acute and profound intrapartum hypoxia and ischaemia, Janet
Rennie &
Lewis Rosenbloom, 2011.
[81]
Oppelt
v Head: Health, Department of Health, Provincial Administration:
Western Cape
2015 (12) BCLR 1471
(CC) at [35]-[48] including the
authorities referred to therein.
[82]
This
is a reference in the Rennie and Rosenbloom Review to the works of
Windle and Myers concerning the use of fetal monkeys used
to mimic
acute total damage footnoted in the paper.
[83]
The
passage from the Rennie Review of relevance to his submission reads
as follows:
“
Human
cases of acute profound hypoxic ischemia in which the insult
duration can be timed with precision remain rare and there is
often
uncertainty about the prior state of foetal health. Nevertheless, it
is the case that in many circumstances the human baby
does appear to
experience an insult that is close to that administered to animal
foetuses in a laboratory setting. While there
is clear variability
both in the foetal reserve and in the duration and degree of the
insult, we are now the opinion that the concept
that damage begins
to accrue after 10 minutes of an acute profound hypoxic ischemic
insult originally constructed from the results
of the work of Windle
and Myers, continues to serve well as a framework and hence all
obstetricians need to be aware of these data”
[84]
This
is referenced in the Rennie Review in the footnotes.
[85]
The
fallacy of this premise is that Sister Tshanyingca’s Apgar
assessments may have been overstated.  I have dealt with this
above and concluded that her evidence is unreliable and or falls to
be rejected.  It is fairly probable because of the damage
sustained by ST, that there had to have been severe bradycardia to
have caused damage to the grey matter of her brain. It is therefore
implausible that when Sister Tshanyingca did her Apgar assessment
(before commencing resuscitation) that a heartbeat of more than
100
bpm pertained. It is just inconsistent with the clinical
presentation of ST at birth. All the experts were ad idem that ST
was severely asphyxiated.
[86]
Buthelezi
v Ndaba
2013
(5) SA 437
(SCA)
at para 1
;
Michael & Another v Linksfield Park Clinic (Pty) Ltd &
Another
2001 (3) SA 1188
SCA at para 36.
[87]
Case
no 9019/2021 KZNP, judgement delivered on 5 December 2019.
[88]
Supra
at
[28].
[89]
Goliath
v MEC for Health, Eastern Cape
2015 (2) SA 90
SCA at par 8.
[90]
Supra
at par 18.
[91]
Supra
at par 19.
[92]
Minister
of Safety and Security v Duivenboden
2002 (6) SA 431
(SCA) at par
[25].
[93]
2016
(1) SA 325
(CC) at para 48.
[94]
The
order I make is premised on a draft that was provided by the parties
in the event that I found in favour of the plaintiff.
I will
assume that they have applied their minds to the costs of the
experts that should be included or forgone.  If anything
has
been omitted due to common oversight, the parties may obviously
approach me to amend the order should the need arise.