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[2021] ZAECMHC 5
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L.D obo A.D v Member of the Executive Council responsible for the Department of Health (2998/2018) [2021] ZAECMHC 5 (26 January 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
[Not
Reportable]
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 2998/2018
Heard
on: 27/08/2020
Delivered
on: 26/01/2021
In
the matter between:
L[....]
D[....] obo A[....] D[....]
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
RESPONSIBLE
FOR THE DEPARTMENT OF
HEALTH
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The plaintiff is L[....] D[....], a woman, who claims payment of
damages against the MEC
for Health, doing so in her name and in a
representative capacity, which arose out of an alleged medical
negligence committed by
the nurses and medical staff that caused
brain damage suffered by her child whilst she was admitted at
Butterworth Hospital on
September 2016.
[2]
This judgment seeks to address the issue of liability only, the
determination of the issue
of
quantum
of damages for the
injuries sustained having been separated from the merits in
accordance with the agreement of the parties that
I converted into an
order of the court.
[3]
To obtain a judgment holding the defendant liable to pay damages the
plaintiff must prove
on a balance of probabilities that the act(s) or
omission(s) of the defendant is wrongful and negligent, and have
caused the loss.
See:
Minister of Safety and Security v Van
Duivenboden
2002 (6) SA 431
SCA at para [12] when the following
was stated:
“
Negligence,
as it is understood in our law, is not inherently unlawful – it
is unlawful, and thus actionable, only if it occurs
in circumstances
that the law recognizes as making it unlawful. Where the
negligence manifests itself in a positive act that
causes physical
harm it is presumed to be unlawful, but that is not so in the
case of a negligent omission. A negligent omission
is unlawful only
if it occurs in circumstances that the law regards as sufficient to
give rise to a legal duty to avoid negligently
causing harm. It
is important to keep that concept quite separate from the concept of
fault. Where the law recognises the
existence of a legal duty it does
not follow that an omission will necessarily attract liability –
it will attract liability
only if the omission was also culpable as
determined by the application of the separate test that has
consistently been applied
by this court in
Kruger
v Coetzee,
namely,
whether a reasonable person in the position of the defendant would
not only have foreseen the harm but would also have acted
to avert
it. While the enquiry as to the existence or otherwise of a legal
duty might be conceptually anterior to the question
of fault (for the
very enquiry is whether fault is capable of being legally
recognised), nevertheless, in order to avoid conflating
these
two separate elements of liability it might often be helpful to
assume that the omission was negligent when asking whether,
as a
matter of legal policy, the omission ought to be actionable.
”
[4]
Expert witnesses testified. Dr Linda R Murray, the obstetrician
and gynaecologist
was called to testify on behalf of the plaintiff.
A paediatrician, Dr Yatish Kara also testified on behalf
of the plaintiff.
The defendant called Dr Chris Archer to
testify on its behalf. Dr Osei is a general
practitioner who attended
to the plaintiff’s labour at
Butterworth Hospital (BH) on 20 September 2020. Dr Archer is an
obstetrician and gynaecologist.
He together with Dr Murray
compiled a joint minute, which formed part of the evidence. The
defendant also called Dr Osei
Amankwah to testify. The
plaintiff herself also testified.
[5]
The medico-legal reports, which were compiled by the expert witnesses
mentioned above formed
part of the evidence. The Road To Health
Chart and Maternity Case Records that had been supplied by BH
concerning the plaintiff’s
progress during labour were also
used.
[6]
The evidence adduced at the trial reflects the
following common
cause facts: The plaintiff was
approximately 15 years of age when she discovered in April 2016 that
she was pregnant. She
experienced pregnancy for the first time.
Antenatally,
she visited Mkoloza Clinic, a village clinic
situated in the district of
Willowvale. Her attendances
there were uneventful. In May 2016, she pursued
medical check-ups at Willowvale
Health Centre (the WHC). On
17 September 2016, she experienced abdominal pains. The WHC
established that the
plaintiff had reached 39 weeks of gestation.
She was caused to sleep for the night and discharged on the next
day.
On 19 September 2016, the labour pains intensified
so much so that the plaintiff had to go back to WHC. She was
in
her first stage of labour. At 12h30 when she presented
with
1 cm cervical dilatation; mild contractions at 1:10 minutes; the
foetal head presented at 3/5 above the pelvic brim and had
the
cephalo-pelvic disproportion (The CPD). The nurse decided that
the presence CPD required that the plaintiff be transferred
to the BH
for caesarean section to be performed. The BH is a level 1
Hospital, which is appropriately equipped to handle
such labour.
In preparing the plaintiff for the Hospital the nurse inserted the
plaintiff with a drip and a catheter.
At 16h30, whilst on a
long waiting time for transfer, the foetal heart rate (FHR) was
assessed at 142-146 bpm. The FHR had
not been assessed at
12h30. The next FHR assessment, at 16h30, recorded a score of
142-146 bpm. At 18h00 the partogram was
commenced. At
20h30 the FHR was again assessed at 142-146 bpm and the cervical
dilatation had increased to 3 cm.
The ambulance finally arrived
at 22h30. It delivered the plaintiff to BH at 23h00.
[7]
The first examination of the plaintiff’s labour by the Hospital
nurse took place on
20 September 2016 at 01h25, in approximately two
hours of waiting period. On Dr Tongo’s instructions, the
nurse gave
plaintiff 1 gram of aldomet pill for a mildly raised blood
pressure. The FHR was assessed at 132 bpm; and the cervix was
measured at 2-3 cm dilatation. At 05h40 the cervix was 3
cm dilated. The nurse decided that the labour should
be allowed
to progress. At 11h50 the plaintiff was still 3 cm dilated; she
had mild contractions, and the FHR was assessed
at 150-152 bpm.
The plaintiff was seen by Dr Osei for the first time at 19h10.
Before that consultation at 18h03, the
plaintiff was 4 cm dilated.
That is, she had finally reached the Active Stage in approximately 17
hours. The FHR was
assessed at 163-167 bpm; and the foetal head
was presented at 4/5 above the pelvic brim. Dr Osei prescribed
ampicillin, antibiotics
and cathadine for the plaintiff. Having
examined the plaintiff he found that the presenting part was still
4/5; FHR was 160
bpm; and the cervix was 4 cm dilated. The
doctor decided that the plaintiff should be referred to the theatre
for caesarean
section (category 1) due to foetal tachycardia and
CPD. The doctor made the comment that the FHR had been
“persistently
elevated since admission at 01h25.”
[8]
The caesarean section was commenced at 21h36 and completed at 21h44
when the plaintiff’s
child was delivered. The child
was born with respiratory difficulties that necessitated
resuscitation by a bag and
mask oxygen ventilation and IV fluid.
The respiratory difficulty was caused by the complexities of foetal
tachycardia.
At that stage the Apgars of the child were scored
as 4/10 and 7/10 in 1 and 5 minutes after birth respectively.
The child
did not cry at birth. At 21h50 the child was
referred to the neonatal unit where he was kept for 2-3 days.
Whilst
the child was kept in the neonatal unit, the plaintiff
remained waiting in the maternity ward for the child to be returned
to her.
[9]
The plaintiff, L[....] D[....], was 20 years of age when she
testified. She
told the Court that on 19 September
2016 she experienced labour pains and went to Willowvale Clinic.
She got there at 11h00.
She was received by the nurse who
referred her to maternity ward where her blood pressure was assessed,
given a drip, and a belt
was put around her abdomen. At 15h00
another nurse examined her on the abdomen using a belt, the nurse
inserted fingers into
her private parts. That nurse told her
that she cannot give birth in a natural way because her “bones”
were too
small; and that she would later on be transferred to
Butterworth Hospital for caesarean section. She only arrived at
the
Hospital in the middle of the night. She was examined at
intervals, given a drip and abdomen checked by means of a belt.
On 20 September 2016 and at about 17h00 the doctor palpated her
stomach, measured her pulse and informed her that she would be
referred to the theatre for caesarean section. She was later
on, at about 18h30 moved to the theatre. She was unconscious
when the operation was done. She got the news after 2h00 that
the child was delivered, but had been referred to the nursery.
The child was returned to her on the third day when she observed that
he was put on a drip, his body had some wires plugged thereon
and
that he was feeding on a pipe. The child looked tired and his
eyes hardly opening. On the fourth day, she observed
that the
child was fitting. After discharge, on 03 October 2016, and
whilst cup-feeding the child she noticed that the child
could not
suck. At age four months, the plaintiff reported to the Clinic
that the child was sliding backward when sitting.
She
also reported that the child was unable to squat and walk.
[10]
The evidence adduced by the plaintiff was not disputed. It is
accepted as it stands.
[11]
On 01 June 2018 and the plaintiff’s child was subjected to MRI
scan which proved that the child
had suffered brain damage at term
maturity. The Joint Minute compiled by Professor Andronikus and
Dr T. Westgarth Taylor
on 19 September 2019, reads, as reproduced
herein-below:
[12]
The expert witnesses who testified on behalf of the parties agreed
with the findings of the radiologist
that the cause of cerebral palsy
was the acute profound hypoxic ischaemic injury in the brain of
plaintiff’s child.
As a result, the parties saw no
need to call the radiologist into the witness-box. What the
findings of the radiologist
do not tell is the time when the brain
injury occurred. However, the evidence adduced by expert
witnesses was that the brain
injury could not have occurred
antenatally or post-natally. They all agreed that the brain
injury, on the probabilities,
most likely occurred during the course
of labour. The report of the radiologists also does not tell
what exactly caused the
brain damage. The case pleaded on
behalf of the plaintiff is that the brain injury was caused by a
failure on the part of
the nursing staff and doctors of BH to monitor
the plaintiff’s labour properly. On the other hand, the
thrust of the
case pleaded on behalf of the defendant is that the
medical practitioners and nursing staff of BH rendered medical care,
treatment
and advice to the plaintiff with care and diligence as
could reasonably be expected of medical practitioners and nursing
staff
in similar circumstances.
[13]
Dr Linda Murray testified that the diagnosis made at WHC that the
plaintiff’s pelvic was inadequate
was a correct medical ground
for the decision made that the plaintiff had to be transferred to the
BH to carry out the caesarean
section. She went into the
Latent Phase of labour whilst still waiting, for a long period of 8
to 9 hours, at a place
that would not have prepared her for theatre.
According to Dr Murray the decision taken at the Hospital
at 05h40 that
the plaintiff’s labour ought to be allowed to
continue on the face of existing CPD and foetal tachycardia pointed
to the
fact that the medical staff did not understand their roles in
monitoring of labour; and especially that they had an obligation not
to prolong the Latent Phase to a period beyond 8 hours. She
stated that Dr Osei’s finding that the plaintiff had a
persistently elevated foetal heart rate from 19 to 20 September 2016
at 146 bpm, 160 bpm and 167 bpm was a matter of concern.
She
noted that the failure to assess labour on 20 September 2016 between
05h40 and to record about progress of labour during the
Latent Phase
on the partogram put the nursing staff in a position of breaching the
provisions of the Guidelines for maternity case.
She stated
that the delay of more than an hour from the time of taking of the
decision to refer the plaintiff to theatre at 19h10
for caesarean
section would only have increased the risk of foetal distress.
Ms Murray stated that apgars of 4/10 and 7/10
in 1 and 5 minutes
after birth indicated foetal distress that was experienced by the
plaintiff due to sub-standard monitoring during
labour.
[14]
Ms Murray’s opinions are that CPD should have raised a concern
of obstructed labour that compromised
the foetal condition. She
stated that the delay to theatre on the face of probably foetal
distress and obstructed labour,
exposed the foetus to ongoing risk of
hypoxic ischaemic injury; sepsis that is supported by plaintiff’s
taking of ampicillin,
antibiotics and cathadine at 18h40; and
intrauterine hypoxia that might have been caused by longstanding
foetal tachycardia that
had developed over a period of more than 15
hours. However, the true condition of the foetus during the
last two to three
hours of labour before caesar was performed is
unknown. She opined that would have been safe for the
foetus to be put
on continued CTG monitoring due to existing FHR
abnormalities and the fact that the plaintiff’s labour was an
obstructed
one. According to the witness, monitoring of labour
should have been of a high standard due to the risks of brain injury
that the foetus was subjected to.
[15]
Dr Murray and Dr Archer wrote a joint minute in which they agreed
that it was unlikely that the antenatal
period contributed to
cerebral palsy that the plaintiff’s child is suffering from.
They also agreed that the Latent
Phase of Labour was prolonged over
15 hours; the Hospital medical staff did not make any comment about
the maternal and foetal
conditions that obtained during labour;
caesarean section was inexplicably delayed; plaintiff’s labour
was obstructed; tachycardia
had been in existence for approximately
18 hours prior to delivery, meaning that there were warning signs
that the foetal condition
may have been non-optimal and emergency
delivery by way of caesarean section was a necessary life-saving
remedy. However,
Dr Archer disagreed with the opinion that the
Latent Phase lasting more than eight hours contributed to foetal
distress in any
way. The independent opinion of Dr Archer is
that for a delayed caesarean section associated with hypoxic
ischaemic brain
injury to be a cause of cerebral palsy one would have
expected to see evidence of a partial prolonged injury pattern on the
MRI
scan. Since the MRI pictures depict an acute profound
hypoxic ischaemic insult that occurred somewhere during the
peripartum
period between 36 weeks gestation and one month
post-delivery, the Hospital staff and doctors cannot be held liable
for the adverse
foetal outcome.
[16]
However, Dr Archer conceded under cross examination that foetal brain
injury was more likely to eventuate
on account of CPD having been
diagnosed that required an emergency caesarean section to be
performed; persisting abnormal FHR scores;
the inexplicable decision
made at 05h40 that the labour should progress on the face of existing
CTG abnormalities; the cervix having
been 4 cm dilated at 18h03; the
baby’s head having been still at 4/5 above the spine at 18h03;
and the labour not having
progress in more than 15 hours. All
these factors were compounded by the failure to refer the plaintiff
to theatre within
one hour to prevent ongoing foetal distress.
Dr Archer stated categorically under cross examination that “…
the care at Butterworth Hospital was disgraceful”, meaning that
care of labour was not applied by the medical staff of BH.
[17]
Dr Archer’s opinion regarding the time when the brain injury
could have occurred at labour is
based on medical literature, which
says that the acute profound hypoxic ischaemic injury in the absence
of a sentinel event, as
diagnosed by the radiologists, occurs at
45-50 minutes before birth. Since such injury occurs without
prior warning it is
impossible to prevent it. He concluded that
for such reasons the defendant cannot be held liable for the damage
that was
caused by an unpreventable insult to the brain of the
plaintiff’s child during birth. The witness placed
reliance on
the textbook by Professor Joseph Volpe entitled:
“
Neurology of the Newborn”;
6
th
Edition. The witness lays emphasis on the evidence that the MRI
results do not support the existence of foetal heart rate
pattern to
warrant the conclusion that the foetal heart rate abnormalities
referred to in this case (the tachycardia) compromised
the child’s
neurological functioning.
[18]
The task given to Dr Kara was to advise on the causal connection
between the delivery of plaintiff’s
child and subsequent
neurological occurrence. His opinion is that the injury noted
on the MRI scan occurred during the labour
most likely during the
period of care provided by BH medical staff. He bases this on
certain reasons. As the main reason,
the witness stated that
the brain injury in this case was preventable, and it could have been
prevented only if the hospital nurses
and doctors had initiated
appropriate foetal monitoring and acted upon the signs of concern.
According to him the lack of
monitoring increased the probability of
an acute profound hypoxic ischaemic event that was a gradual build-up
of foetal compromise
until a tipping period was reached.
[19]
Dr Kara took into account the fact that there is no evidence that
would expose the plaintiff to hypoxic
ischaemic encephalopathy during
the antenatal stage. He together with Dr Murray and Dr Archer
agreed that the MRI scan points
to the occurrence of the child’s
cerebral palsy due to either intra-partem events. He stated
that the child has a cerebral
palsy with a dominant dyskinetic
feature (signifying trouble controlling muscle movement) which is
medically associated with intrapartum
events. For this
statement he relies on
Janet Rennie et al
: “Outcome
after intrapartum hypoxic ischaemic at term”, 2007. He
also refers to the textbook of Professor Volpe,
supra
, at p
512 where it is stated that,
inter alia,
foetal distress and
neonatal neurological syndrome in the first hour or day of life are
sine qua non
for attributing subsequent brain injury to
intrapartum insult. A third feature, depression at birth, is
not proved in this
case. Dr Kara opined that regard being had
to foetal tachycardia, which together with CPD, the prolonged Latent
Phase and
the history given by the plaintiff hypoxic ischaemic
encephalopathy developed due to suboptimal management of labour that
resulted
in cerebral palsy. He stated further that the need for
resuscitation of the child at birth, and the confirmed low apgar
scores
at birth that were followed by apgar scores of 4 and 7 in 1
and 10 minutes after resuscitation, timed the occurrence of hypoxic
ischaemic insult to the period of labour.
[20]
To the extent that Dr Archer did not take into account the fact that
the apgar scores of 7/10 in 5
minutes are improved scores that were
recorded after the resuscitation of the child, I do not accept his
opinion as contained in
his report, and re-iterated in his evidence,
that:
“
7.4
The five minutes Apgar score in this case should be viewed as
reassuring and not as an indication of
an infant recently subjected
to severe foetal distress. It therefore also does not provide
support for a diagnosis of neonatal
encephalopathy in the hours and
days following delivery.”
[21]
The fact that Dr Kara, not Dr Archer, is a paediatrician reinforces
my decision to prefer the opinions
expressed by Dr Kara regarding the
condition of the child during the neonatal period. In any
event, Dr Archer and Dr Murray
agreed to defer paediatric aspects of
their evidence to a paediatrician for confirmation.
[22]
The
upshot of the evidence adduced by Dr Archer is this. Whereas he
concedes that the standard of care and management of plaintiff’s
labour by the nurses and medical staff at BH was substandard, he
nevertheless contends that they cannot be held liable for damages
suffered by plaintiff and her child because the MRI finding that the
acute profound hypoxic ischaemic event, not partial prolonged
hypoxic
ischaemic event is the cause of cerebral palsy.
[23]
For the defendant to be held liable for the conduct or omission
committed by its employees it must
be proved that the employees
caused the event to develop and that notwithstanding they failed to
take steps to prevent it from
occurring. In deciding these
issues, the court is
guided by
the case
of
Lee v Minister For Correctional Services
2013 (2) SA 144
(CC) at para [41] where Nkabinde J said the following:
“
However,
in the case of an omission the but-for test requires that a
hypothetical positive act be inserted in the particular set
of facts,
the so-called mental removal of the defendant’s omission. This
means that reasonable conduct of the defendant would
be inserted into
the set of facts. However, as will be shown in detail later,
the rule regarding the application of the test
in positive acts and
omission cases is not inflexible. There are cases in which the strict
application of the rule would result
in an injustice, hence a
requirement for flexibility.”
[24]
On the issue of causative negligence it was submitted on behalf of
the plaintiff that had the employees
of the defendant performed
caesarean section within a reasonable time and/or monitored the
progress of labour properly and appreciating
that the foetus had CPD
that exposed it to distress the child would have been born by way of
caesarean section during the course
of the day, on 19 September 2016,
before 18h03. Further, it was submitted that had caesarean
section been ordered at 18h03
and performed within an hour as
required by the Guidelines, then the child would have been delivered
before the acute profound
injury was suffered during the last 40-50
minutes before birth.
[25]
This Court has been urged by
Mr Wessels SC
, for the plaintiff
to apply flexible approach to factual causation in the case of
negligent omission as stated in the case of
Lee, supra.
[26]
It was submitted by
Mr Joubert SC,
for the defendant, that the
evidence adduced in this case does not confirm that any medical
intervention at a specific time would
or could have prevented the
occurrence of hypoxic ischaemic insult. The upshot of this
submission is that the cause of cerebral
palsy is an acute profound
hypoxic ischaemic insult, a catastrophic event that occurs suddenly
and it is unforseeable (without
a warning sign). Counsel’s
argument is that the suggestion advanced in the evidence on behalf of
the plaintiff that
warning signs of severe foetal distress emerged
which if met by appropriate medical intervention between 19h10 and
19h45 would
or could have prevented the development of hypoxic
ischaemic encephalopathy was pure speculation. In amplification
of these
submissions a reference was made to a passage in
State v
Brochris Investments (Pty) Limited and Another
1988 (1) SA 862
AD
at 861G-H. The passage reads:
“
In
considering the question whether a particular occurrence was
foreseeable, and should therefore have been guarded against, one
must
guard what was, in
S
v Mini
1963
(3) SA 188
A at 196 E-F, called ‘the insidious subconscious
influence of
ex
post facto
knowledge.’
Negligence is not established by showing merely that the occurrence
happened (unless the case is one where
res
ipsa loguitur),
or
by showing, after it happened, how it could have been prevented.
The
diligens
paterfamilias
does not have prophetic foresight. In
dictum
in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd
(The Wagon Mound)
[1961] UKPC 1
;
1961 AC 388
(PC) at 424 ([1961)] All ER 404 at 414 G-H) applies,
namely: “After the event, even a fool is wise. But it is
not the
hindsight of a fool; it is the foresight of the reasonable
man which alone can determine responsibility.”
[27]
It needs to be stated that the flexible approach to the but-for test
as espoused in the case of
Lee
finds application in this
case. The facts of this case suggest to me that this Court does
not need to have prophetic foresight.
Neither does the Court
need to speculate what would happen to the plaintiff and the foetus
had caesarean section been carried out
between 19h10 and 19h45.
The court is enjoined to have regard to the evidence placed before it
and apply medical opinions
as expressed in such evidence. The
negligence, or otherwise, of the nurses and medical staff at BH must
be measured; in an
objective manner, against the medical standards
that are applicable in a similar Level 1 Hospitals of the Republic.
[28]
It seems to me that the real dispute in this case lies in the
differing interpretation of the joint
minutes of the radiologists.
The expert witnesses from the opposing sides do not read the MRI scan
as disclosing brain injury
of the same type. The impasse is
dealt with below.
[29]
The difference of opinions between Dr Kara and Dr Murray on the one
hand and Dr Archer on the other
requires examination of the
mechanisms giving rise to acute profound and partial prolonged
hypoxic ischaemic events.
Based on medical sources, these
events were described in
AN obo EN v Member of the Executive
Council For Health
[2019] 4 All SA 1
(SCA) at para [14] in the
following terms:
“
The
mechanisms giving rise to these two types of brain damage are
uncontroversial. Professor Van Toorn, Head of Paediatric Neurology
at
Tygerberg Childrens’ Hospital and Stellenbosch University, was
called by the appellant. He gave clear and uncontroverted
evidence on
this issue. During labour, the blood to the brain is supplied from
the placenta along the umbilical cord (the cord).
If there is an
inadequate supply of oxygen, the brain shunts the limited blood from
the peripheries to the deep grey matter. This
is designed to protect
the deep grey matter which is the most vulnerable matter due to its
higher metabolic rate. When shunting
takes place, damage occurs to
the white matter of the brain. This means that if there is some blood
supply, but it is inadequate,
damage occurs to the white matter. If
there is no blood supply at all, none is available to shunt to the
deep grey matter. In that
instance, only the grey matter will be
damaged. The MRI scan shows only damage to the grey matter in the
present case. No damage
to white matter was evident.”
[30]
In his evidence Dr Kara interpreted the MRI scan as being descriptive
of brain injury of a mixed type
in that: “the internal capsule,
the peri-rolandic area and the periventricular are areas of white
matter injury.”
This piece of medical evidence, which is
cogent, was not gainsaid by any other evidence adduced in this case.
Therefore,
I am driven to the conclusion that the brain damage
started in the area of the white matter and ended in the grey matter.
Dr
Kara testified further that in the absence of brainstem
injury, as is the case here, the brain injury to the cerebral cortex,
basal
ganglia and thalamus would probably have occurred due to severe
and relatively prolonged hypoxia ischaemia. The evidence of
Dr
Murray fits well into the context of mixed type cerebral palsy.
[31]
The question whether the insult to the brain could
have been prevented, or not, can only be answered based
on the facts
that are relevant to the monitoring of labour. Since sentinel
event does not exist in this case and the hypoxic
ischaemic insult
developed during the period of labour. The events of labour
make it palpably clear that warning signs did
emerge, at the very
least soon after discovering: (i) at WHC that the labour had CPD;
(ii) at BH at 01h20, that the plaintiff’s
labour had CPD;
the labour had reached the Latent Phase, which was even prolonged;
(iii) at 18h03, that the FHR of 163-167 was
abnormal; (iv) and at
19h10, that foetal tachycardia had been allowed to persist. In
the circumstances, the contention advanced
on behalf of the defendant
that warning signs of hypoxic ischaemic event was not foreseeable
and, therefore, unpreventable is not
sustainable.
[32]
All the three expert witnesses argued that the
conduct of BH staff, coupled with what they omitted to do,
was in
breach of labour management protocols contained in the National
Maternal Guidelines (the guidelines) published in 2007.
[33]
In the result the following order shall issue:
1.
The
merits
and
quantum
are hereby separated in terms of
Rule 33 (4).
2.
The determination of
quantum
is postponed sine die.
3.
The defendant is held liable for the plaintiff’s agreed or
proven damages
arising from the cerebral palsy suffered by the minor
child, A[....] D[....].
4.
The defendant shall pay the plaintiff’s costs relating to the
merits
, together with all reserved costs, if any, which costs
shall include:
4.1
the travelling expenses, reservation and appearance fees, if any,
together with the costs
of the preparation of their reports and
qualifying fees, if any, of the following expert witnesses:
4.1.1
Prof Andronikou -
Radiologist
4.1.2
Dr Linda Murray -
Obstetrician
4.1.3
Dr Kara
-
Paediatrician
4.1.4
Lesley Fletcher
-
Nursing
expert
5.
The defendant shall pay interest on the aforesaid costs at the
current prescribed
legal rate of interest from date of allocator or
agreement to date of payment thereof.
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff
: Adv.
J.J. Wessels SC
Instructed
by
: Nonxuba Inc
c/o
POTELWA INC
MTHATHA.
Counsel
for the defendant :
Adv. D.J. Joubert SC
Instructed
by
: The Office of the
State Attorney
MTHATHA.