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[2021] ZASCA 105
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Member of the Executive Council, Department of Health, North West v NAM obo TN (035/2020) [2021] ZASCA 105 (26 July 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 035/2020
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH,
NORTH
WEST
PROVINCE
APPELLANT
and
NAM obo TN
RESPONDENT
Neutral
citation:
The
Member of the Executive Council, Department of Health, North West v
NAM obo TN
(035/2020)
[2021] ZASCA 105
(26
July 2021)
Coram:
ZONDI, DAMBUZA and MOCUMIE JJA and GORVEN and EKSTEEN
AJJA.
Heard
:
10 May 2021
Delivered:
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be have been at 09h45 on
26 July 2021.
Summary:
Delict – medical negligence –
claim for damages based on failure to attend to plaintiff before
delivery and foetus after
delivery – whether the clinic nursing
staff were negligent in their treatment of the plaintiff and TN –
whether negligence
caused TN’s hypoxic ischemic injury and the
resultant cerebral palsy.
ORDER
On
appeal from:
North West Division of the High
Court, Mahikeng (Hendricks ADJP, Gura J and Oosthuizen-Senekal AJ
concurring, sitting as court of
appeal)
1
Condonation for the late filing of the appeal record is granted.
2
The appeal is upheld.
3
Each party is to pay
its own costs.
4
The order of the Full Court is set aside and substituted with an
order dismissing
the appeal.
JUDGMENT
Mocumie
JA (Zondi and Dambuza JJA and Gorven and Eksteen AJJA concurring)
[1]
The issue in this appeal is whether the nursing staff at Makgobistad
clinic in Kuruman,
North West Province were negligent in their
management of the plaintiff’s delivery and in their treatment
of the plaintiff’s
baby (TN) on 17 December 2003. For
convenience, the parties will be referred to as they were in the
trial court, plaintiff and
the Member of the Executive Council for
Health, North West (the MEC).
[2]
At the outset, the MEC sought condonation for the late filing of the
appeal record
on a number of grounds.
The
factors which a court considers when exercising its discretion
whether to grant condonation, include the degree of non-compliance
with the rules, the explanation for it, the importance of the case,
the respondent’s interest in the finality of the judgment
of
the court below, the convenience of the court and the avoidance of
unnecessary delay in the administration of justice.
[1]
As
regards the delay, the MEC lodged a notice of appeal on 16 April
2020. In terms of rule 8(1) of the Rules of this Court he was
obliged
to lodge the record within three months of delivery of the notice of
appeal. The MEC only lodged the record of proceedings
on 10 September
2020, almost five months later. By then the appeal had lapsed. The
MEC
attributed the delay to the effect of the national lock down, which
was imposed in March 2020, under the National
Disaster Management
Act, 57 of 2002
in an attempt to curb the spread of the Corona virus.
During the lockdown the North West High Court operated with skeleton
staff
to attend only to urgent matters. As a result, service of court
processes, including the appeal record of this case, suffered. The
attorneys employed by the State Attorney could, initially, not
move freely as they were not declared essential workers. They
were
granted essential work permits on 14 May 2020.
[3]
In addition, the transcribers, Digital Audio Recording Transcripts,
delayed the transcription
of the record within the anticipated
period. Ms Ndabeni of the State Attorney, who was responsible for
this appeal, instructed
Appeals Document Services CC on 20 May 2020
to prepare the record and the documents were sent to them on 3 June
2020. The State
Attorney received the draft record from Appeals
Document Services on 10 July 2020. On 20 July 2020 the
draft record was
sent to the plaintiff’s attorney for comment.
There is no explanation why the draft was not sent sooner, or why it
took the
State Attorney almost further two months to file the record
(10 September 2020).
[4]
The MEC maintains that he has lodged a notice of appeal which has
good prospect of
success and that the plaintiff will not suffer
prejudice if condonation were to be granted. If condonation is
refused, the MEC
contends, the appeal will lapse which will severely
prejudice him.
[5]
It is correct that the delay in filing the record has a direct impact
on the plaintiff’s
interest in the finality of the matter. In
my view, although more should have been done in prosecuting the
appeal, the delay is
not inordinate and it has been satisfactorily
explained. Nor can it be said that the plaintiff would suffer any
prejudice if condonation
was granted. The appeal is very important to
both parties as it involves the determination of the cause of the
cerebral palsy the
plaintiff’s minor child suffers from. Having
considered all the circumstances of this case, condonation for the
late filing
of the appeal record should be granted. I now proceed to
deal with the appeal.
[6]
The plaintiff instituted a claim for delictual damages in the High
Court, North West
Division, Mahikeng (the high court), on behalf of
her minor child (TN), against the MEC as the employer of the nursing
staff at
the clinic at the time. The plaintiff’s claim against
the MEC was brought on the basis that he was vicariously liable for
the negligent conduct of the nursing staff that attended to the
plaintiff at the clinic during her admission. She claims that this
negligence caused and culminated in TN developing cerebral palsy as a
consequence of a hypoxic-ischaemic event at birth, and thereafter.
She alleged that the nursing staff at the clinic negligently kept the
clinic closed the night before her admission (16 December
2003)
until after 08h00 on the day on which she gave birth
(17 December 2003). Upon her admission, they failed to
properly
and professionally attend to TN, and, in particular, failed
to administer oxygen to TN in circumstances when it was reasonably
necessary for them to do so; failed to enlist the services of a
gynaecologist, or a qualified doctor or other suitable specialist,
to
examine and properly treat TN in circumstances when it was reasonably
necessary to do so; and failed to adhere to the standard
of practice
of reasonable sisters or nurses in their respective positions in
order to ensure that the plaintiff was attended to
without delay, and
to prevent TN from suffering from brain and other injuries.
[7]
Gutta J in the court of first instance, who, by agreement between the
parties, was
called upon to decide only the question of liability,
dismissed the claim. She found that the plaintiff did not succeed in
proving
negligence and causation. The plaintiff successfully appealed
to the full court (Hendricks ADJP, with Gura J and Oosthuizen-Senekal
AJ). Not satisfied with the decision of the full court, the MEC
sought and was granted special leave to appeal to this Court.
[8]
The facts set out below were either common cause or not seriously
disputed. In the
morning of 17 December 2003, around 03h00, the
plaintiff, who was in her full term of pregnancy, experienced labour
pains. She
arrived at the clinic not far from where she resided, in a
private vehicle, a panel van hired by her father, at about 07h50. The
clinic is a government institution that is supposed to be open to the
public on a 24-hour basis. On the day in question, there
were two
nursing staff on duty, a qualified nursing sister who is a midwife,
Sister Moletsane, and an assistant nurse, Ms
Motaung. In
addition, the clinic has an administration officer who keeps the
records and files of the clinic, Ms Jaula, a
cleaner, and a
security officer. It has a basic obstetric care unit
(the labour room) fitted with an incubator for babies
after
their delivery. The plaintiff was 21 years of age at the time of TN’s
birth. This was her second birth. Her first child
had been born at
the same clinic. As in the case of her first pregnancy, she said, she
attended antenatal care at the clinic from
two months into her
pregnancy and had no prenatal complications.
[2]
[9]
In her particulars of claim, the plaintiff asserted that on 17
December 2003, she
gave birth shortly after 08h00 inside the panel
van, unmonitored and without the assistance of the nurses at the
clinic. It was
averred that the harm TN suffered was caused by an
acute profound hypoxic ischaemic insult caused by a complete lack of
oxygen
to the brain for a sustained period as advised by medical
experts; which, but-for the nursing staff not attending to her
professionally
and timeously, would not have occurred.
[10]
The antenatal records of the plaintiff, the records from the clinic
regarding the day TN was
born, as well as the maternity case record
relating to the plaintiff’s treatment were all missing and
subsequently confirmed
to have been lost. All that was available was
TN’s Road to Health Chart (RTHC), which was incomplete. On it,
all that was
recorded was that TN was born by normal vertex
delivery.
[3]
The
weight, length and head circumference were not recorded on the RTHC.
No Apgar scores
[4]
were
recorded. TN was diagnosed with cerebral palsy at the age of six
months.
[11]
In his pleas, the MEC denied all allegations of negligence attributed
to the nursing staff at
the clinic in relation to the birth of TN.
The MEC contended that the nursing staff were on duty at all relevant
times and denied
that they arrived after the birth of TN. In the
alternative, the MEC contended that the plaintiff was contributorily
negligent
in that she failed to attend antenatal clinic regularly
during her pregnancy; she failed to seek medical assistance during
early
labour when she should reasonably have done so; she sought
medical assistance at the clinic only when her labour had progressed
and the head of the unborn child was on the perineum; and she was
inappropriately dressed in denim pants during labour which delayed
TN’s birth.
[12]
To discharge the onus which rested on her to prove her case, the
plaintiff testified and led
the evidence of Mr Lebone - the owner and
driver of the van which took her to the clinic, Dr: Moja (a
neurosurgeon) and Dr Lewis
(a paediatrician). Dr Sevenster, a
specialist obstetrician for the plaintiff, was not called although he
compiled a report
and joint minutes with Dr Malebane. To rebut the
case for the plaintiff the MEC led evidence of the clinic nursing
staff Sr Moletsane
and Ms Motaung, as well as the administration
officer Ms Jaula and Dr: Malebane, Dr Marumo, Dr Kganane and Dr
Mogashoa,
a paediatrician neurologist. There were several other
experts who examined the plaintiff and TN and thereafter compiled
reports,
including radiologists and paediatricians, but who were not
called to testify.
[13]
The plaintiff’s version, which is corroborated by Mr Lebone
(although he said the time
of arrival was 07h00) must, on all the
probabilities, be accepted. She said that she arrived at about 07h50
and at that time the
clinic was not open. They found approximately
twenty people waiting outside the gate of the clinic. The security
officer on duty
at the clinic told them to remain outside the
premises as the nursing staff were not on duty. They accordingly
waited there. Her
waters broke at 08h10. At 08h15 she gave birth
unmonitored. At 08h20 the cleaner came to assist her by putting a
blanket over her
and the baby that was already on the seat between
her legs. She said, ‘[the] baby did not cry at birth, was just
still for
10 minutes after the nurse arrived’. At 08h25, Ms
Motaung, the assistant nurse came to the panel van and took the baby
inside
the clinic. The plaintiff was also taken into the labour room.
TN was taken to another room. Sr Moletsane cleaned and treated her.TN
was brought back to her in the labour room and she breastfed her. She
was discharged with TN and was home by 14h00. Her grandmother,
based
on her observation of the baby’s squint eyes, remarked that
there was something wrong with the baby. TN did not suckle
like her
first baby, she said. She took TN to the clinic a week later and
neither she nor the clinic staff noticed anything unusual
about her.
At six months, she went to a different clinic. The clinic referred
her to Bophelong hospital which diagnosed TN with
cerebral palsy.
From the time the plaintiff was discharged on the day of the birth,
until six months later, there were no
outward manifestations of any
injury.
[14]
For the plaintiff’s experts, in particular Dr Moja, supported
by Dr Lewis, were of the
view that the hypoxic event was of an acute
profound nature which occurs within 6 to 10 minutes at birth. Dr Moja
agreed with the
radiologists that the MRI showed a mixed pattern with
‘. . . chronic sequelae secondary to a combination of partial
prolonged
hypoxic ischemic injury as well as an acute profound
hypoxic ischemic injury’. The significance of this is that, Dr
Moja
said that the acute event would have been at the time of birth
(if it had been before, the baby would have been born dead) and
lasted ‘less than five minutes . . . but there is a second
element which is the prolonged element and that to me means that
at
that point there was lack of oxygen but it was not total lack of
oxygen at the point but damage was still occurring because
it was
suboptimal’. He went on to explain that the acute event
occurred at birth and he explained that is why the baby was
not
breathing or moving initially. But, after she was revived, he
believed that ongoing damage would probably have been caused
due to
poor oxygen supply and that, as he put it ‘. . . you have
an acute profound hypoxia and subsequently also have
a prolonged
period of hypoxia, you have ongoing damage that may not necessarily
be evident subsequently . . .’.
[15]
According to Dr Lewis, ‘approximately 10 million babies do not
breathe immediately at birth,
of which about 6 million require basic
neonatal resuscitation’. So what the clinic staff did was basic
resuscitation since
there is no indication that it took any length of
time or special techniques to get the baby to breathe, cry, move and
suckle.
The evidence concerning monitoring for 12 to 24 hours was
that this was the case for babies who require extensive
resuscitation.
The significance is that Dr Moja testified that the
treatment protocol was to administer oxygen and to test for oxygen
uptake (which
the clinic could not do) and thus to refer to a
hospital. He could not say, however, that the nursing staff would
have been aware
that this was the treatment protocol. This is because
he did not know what training the staff at this level in such a
clinic would
have received and, therefore, whether such persons could
reasonably have known that TN required such treatment. No nursing
experts
were called to testify on this aspect. Because, after
resuscitation, the baby appeared normal, it cannot be said that the
clinic
staff were negligent in failing to do what the expert
neurologist and obstetrician would have done.
[16]
In their view, the harm caused by the acute profound hypoxic event
occurred at the time the plaintiff
gave birth, unmonitored, and TN
‘was still, did not cry and was not breathing’, before
the nursing staff came to assist
her. Dr Lewis, however, conceded
that if TN was breathing, crying, breastfeeding and was pink in
colour there was no need to resuscitate
her further after she started
breathing. Dr Moja was of the view that, because TN had suffered such
an event, the treatment protocol
required her to be oxygenated until
further tests were done within 24 hours, during which period TN
should not have been discharged.
This would have involved calling a
medical doctor with expertise in resuscitations or referring her to a
hospital equipped for
such emergencies where she would have been
provided with medical treatment immediately to reverse the results,
or to minimise them
later. Had this been done, he opined that the
partial prolonged hypoxia could have been avoided or minimised
leading to a better
outcome. Dr Lewis was of the opinion that the 12
to 24 hour monitoring protocol was only indicated if extensive
initial resuscitation
had been necessary. Both experts conceded that
they could not testify that the nursing staff would have known that
this treatment
protocol was indicated. That being the case, no
finding of negligence can be supported.
[17]
The version of the nursing staff was that Sr Moletsane brought TN
back to the plaintiff to establish
if TN could breastfeed, which she
could do. She monitored TN’s progress for 4 hours
intermittently, 2 hours apart. She was
satisfied that TN was well.
She discharged both the plaintiff and TN at approximately 12h00. She
said that, although the delivery
had been complicated, there was
nothing untoward about TN after resuscitation. She was pink in
colour, was breathing normally and
was breastfed by the plaintiff
several times before discharge. Neither of the nursing staff nor the
plaintiff saw anything unusual
in the state of TN at discharge. It
bears reminding that the cerebral palsy was only diagnosed some 6
months later.
[18]
Some 7 days after the birth of TN, the plaintiff brought her to the
clinic for tuberculosis and
Polio vaccination. She was issued with
the RTHC. On it she noted the weight to be 2,8kg which was as
expected at that stage. She
stated that the clinic lost TN’s
Apgar Scores and the plaintiff’s medical records.
[19]
In a nutshell, the experts for the MEC agreed with the plaintiff’s
expert, Dr Moja, as
indicated earlier, that ‘. . . it was
impossible to determine with any degree of certainty the precise
moment when this injury
would have occurred’. Dr Malebane,
in particular, stated that in the event that it was accepted that the
injury could
have occurred in the second stage of labour, it would
have been preceded by abnormalities
;
which was not the case according to the plaintiff’s
narrative. Dr Kganane stated that the steps taken by Sr Moletsane,
namely
suction and removal of excessive secretions, wrapping TN and
putting her in the incubator (to re-establish the temperature) were
normal. The fact that TN was monitored for 4 hours meant that she was
conscious and did not need oxygen. The plaintiff told them
that she
did not pick up any abnormalities as TN was breastfeeding without any
difficulty even after they were discharged from
the clinic. That, on
its own, indicated that despite the injury, there were no apparent
problems immediately after birth.
[20]
The general rule is that he or she who asserts must prove. Thus, in a
case such as this the plaintiff
must prove that the damage sustained
by her minor child was caused by the defendant’s clinic staff’s
negligence. 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 members of the branch of the profession to which he
or she belongs would normally constitute negligence.
[5]
A medical
practitioner ‘is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill,
but he or she is bound to employ reasonable skill and care.’
[6]
[21]
The question that remains is whether any liability can be attached to
the nursing staff (and
vicariously so, to the MEC), after the
plaintiff was admitted into the clinic after TN had already been
delivered, unmonitored.
Despite the initial vigorous contestation on
behalf of the MEC, it became common cause by the end of the trial, as
I have already
stated, that the cerebral palsy was caused by a mixed
pattern with ‘. . . chronic sequelae secondary to a combination
of
partial prolonged hypoxic ischemic injury as well as an acute
profound hypoxic ischemic injury’. A hypoxic ischaemic event
can be described as lack of oxygen and inadequate perfusion of
oxygen, through the blood, to the brain which causes damage to the
brain.
[7]
The
radiologists produced joint minutes on the imaging features of the
Magnetic Resonance Imaging (MRI) brain scan and agreed that
‘the
scan is indicative of
a
hypoxic ischemic injury of a term brain at a chronic stage of
evolution
.
. . [T]he dominant pattern of injury in this case is acute profound
in nature’. In their revised report the radiologists
stated
that ‘a combination of partial prolonged hypoxic ischemic
injury as well as an acute profound hypoxic ischemic injury’
were features of the MRI. The experts that testified based their
evidence on both. The joint report of the radiologists was admitted
as evidence by agreement.
[22]
It is therefore safe to accept that on everybody’s version,
including the plaintiff’s,
nobody thought anything was wrong
with TN when she was discharged from the clinic, except what her
grandmother said on the first
day of TN’s arrival at home;
namely her squint eyes indicated that there might have been something
wrong with her. That TN
had squint eyes (without other
sequelae
)
is on its own not a manifestation of a brain injury. Furthermore,
even when the plaintiff took TN back to the clinic 7 days after
her
birth for immunisation, according to what is recorded on the RTHC,
she reported no abnormality about the baby’s behaviour.
At that
stage, as reasonably expected, she would have told the nursing staff
about any abnormality she picked up on her own as
the mother or even
what her grandmother had said about TN’s squint eyes. She did
not.
[23]
The ineluctable inference must then be drawn that, the fact that the
damage was only picked up
6 months later, is an indication that the
damage was ongoing after birth.
As
no abnormalities asserted themselves at the clinic, it cannot be said
that the nursing staff fell short of the standard of reasonable
nursing staff in a position similar to them.
[24]
For these reasons, I find that the plaintiff failed to discharge the
onus that rested upon her
to prove their negligence. There is
therefore, no need to consider causation.
[25]
What remains to consider, is the issue of costs. Counsel for the MEC
did not abandon the costs
that follow upon success as in similar
cases where the medical records were lost in the hands of the clinic
staff to mitigate such
loss. It is so that the loss of medical
records which recorded the crucial information; in particular, the
Apgar Scores, which
the plaintiff required in order to prove her
claim against the MEC, reflects badly on the clinic and its staff,
the MEC and the
department. It is conduct which must be deprecated in
the strongest terms. In the circumstances, I am of the view that the
plaintiff
should not be mulcted with costs. I say this because the
hospitals and clinics are obliged to keep the records of a minor
until
they reach majority. They failed to do so.
[26]
In the result the following order issues.
1
Condonation for the late filing of the appeal record is granted.
2
The appeal is upheld.
3
Each party is to pay its own costs.
4
The order of the Full Court is set aside and substituted with an
order dismissing
the appeal.
B C MOCUMIE
JUDGE OF APPEAL
APPEARANCES
For
Appellant:
T Masevhe
Instructed
by:
State Attorney, Mahikeng
State Attorney,
Bloemfontein
For
Respondent:
J H F Pistor SC
Instructed
by:
Semaushu Attorneys, Mahikeng
Phatshoane Henny
Inc., Bloemfontein
[1]
S v
Sayed and Others
[2017] ZASCA 156
;
2018 (1) SACR 185
(SCA) paras 21-23 with reference
to
Dengetenge
Holdings (Pty) Ltd
v
Southern Sphere Mining and Development Company Ltd
and
Others
[2013]
ZASCA 5
;
[2013] 2 All SA 251
para 11.
[2]
Albeit
without the benefit of her medical records which were lost by the
clinic.
[3]
According
to Medterm Medical Dictionary,
a
vertex
delivery
,
means the top of the baby's head comes first. The
vertex
refers
to the top of the head.
[4]
Apgar
stands
for ‘Appearance, Pulse, Grimace, Activity, and Respiration’.
In the test, five things are used to check
a baby's health. Each is
scored on a
scale
of
0 to 2, with 2 being the best score.
[5]
Van
Wyk v Lewis
1924 AD 438
at 444.
[6]
Mitchell
v Dixon
1914
AD 519
at 525.
[7]
Magqeya v MEC for
Health, Eastern Cape
[2018]
ZASCA 141
para 8.