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[2019] ZAKZDHC 6
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Mpanza v MEC for Health for the Province of KwaZulu-Natal (6375/2017) [2019] ZAKZDHC 6 (7 May 2019)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case No. 6375/2017
In
the matter between:
Thembi
Nomusa
Mpanza
Plaintiff
(obo
M[….] E[….] D[….])
and
MEC
for Health for the Province of
KwaZulu-Natal
Defendant
Judgment
Lopes
J:
[1]
The plaintiff is Thembi Nomusa Mpanza who sues for damages on behalf
of her minor
son M[….] E[….] D[….], a boy born
on the 19
th
of February 2014 at the Stanger Hospital.
The plaintiff’s cause of action arises out of the alleged
negligence of the
medical staff at Stanger Hospital in attending to
the birth of M[….]. It is alleged that as a result of their
negligence
M[….] has been left in what was described as the
‘worst case’ of cerebral palsy. The plaintiff sues for
R15 500 000.
[2]
At the outset of the hearing Mr
Pillemer
who appeared for Ms
Mpanza together with Ms
Beket
, recorded that by way of an
order of Vahed J on the 4
th
of May 2018 the issues were
separated. I am accordingly required to decide only the issue of
liability at this stage. The
quantum of damages is to stand
over. Mr
Pillemer
also informed me that the special plea
of prescription has been settled. The defendant, the MEC for Health
for the Province of KwaZulu-Natal,
was represented by Mr
Mthethwa.
He confirmed that settlement.
[3]
The following facts emerged from the hospital records. It was
agreed that those
records contained notes made by various members of
the hospital staff and could be used without further proof. Whilst
the truth
of the contents was not admitted, the parties accepted that
what appeared in the writing of the various staff members had been
written by them. The facts are as follows:
(a)
Ms Mpanza was 27 years of age when she was brought to the Stanger
Hospital by ambulance
at 4:54am on the 19
th
February 2014.
(b)
Ms Mpanza was complaining of labour pains. She was 38 weeks’
pregnant.
(c)
Ms Mpanza had had a previous pregnancy, and the child of that
pregnancy was born by
caesarean section.
(d)
Two and a half hours after her arrival, at 7:30am, Ms Mpanza was seen
by a member of the
nursing staff. She told the nurse that she
wished to have a caesarean section because she could not bear the
pain of a natural
birth. The nurse recorded no abnormalities. Ms
Mpanza was in an early stage of labour and her cervix had dilated
between one and
two centimetres. The first active phase of labour had
not yet begun.
(e)
One hour and 45 minutes later at 9:15am, Ms Mpanza was seen by a
Doctor Sullivan. He examined
her and recorded that she was four
centimetres dilated. She had therefore entered the active part
of the first stage of labour.
(f)
At 11:50am, despite having agreed that Ms Mpanza would undergo birth
by way of a caesarean
section, an artificial rupture of membranes (an
AROM) was performed, the effect of which was to rupture her
membranes so
that her waters were breached, and the process of
a vaginal birth accelerated. A CTG tracing was started at about the
same time.
This showed an abnormal heart-rate.
(g)
At 12:20pm Ms Mpanza began to bleed heavily and she was admitted for
an emergency caesarean
section which was performed at 1:15pm when
M[….] was delivered. It was apparent from the outset,
(although this was contradicted
in some of the hospital notes), that
he was already severely injured when he was born.
[4]
Mr
Pillemer
called two witnesses, the first of whom was Doctor
Yatish Dhirajal Jath Kara, a paediatrician in private practice. Dr
Kara handed
in his curriculum vitae evidencing that he is competent
to speak to the nature and time that Mhlengi sustained his injuries.
As a preliminary to compiling his expert report, Dr Kara spoke to Ms
Mpanza and examined M[….]. He obtained from Ms
Mpanza a
medical family history and her own maternity history. He also
discussed with her the events which occurred during
her labour and
thereafter. In addition Dr Kara examined the hospital medical
records. At the time when Dr Kara compiled his medical
report, he did
not have the assistance of a Magnetic Resonance Imaging (MRI) report,
which was only produced later.
[5]
Dr Kara described M [….] as being cerebral palsied with
quadriplegia. He was
stiff and weak in all four limbs. There
was also the possibility of dystonia where the limbs of a person
suffering cerebral
palsy may be stiffer at certain times than at
other times. His view was that the cerebral palsy was caused in
this matter
by hypoxia-ischemic encephalopathy (HIE).
M[….] is completely paralysed, blind and possibly deaf, and
there
is nothing which medical science can do at this stage to repair
the damage. With intensive rehabilitation and occupational
therapy it may be possible that he could improve by one level (he is
currently at level 5). Dr Kara’s view is that
M[….]
will never be able to walk or even crawl. He is in the category
of the ‘worst case’ of cerebral
palsied persons and would
never recover.
[6]
Dr Kara pointed to the contradiction in the medical records which
indicate that Ms
Mpanza told the medical staff that she wished to
give birth by caesarean section. The doctor who recorded this,
however,
also recorded that she should undergo an AROM. This was
contra-indicated because any medical intervention to disrupt the
condition
of the membrane in which M[….] was at that stage
encased, would accelerate the process of a vaginal birth. This is
because
the AROM triggers the birth reaction in the body of a
mother. Dr Kara pointed out the note at page 25 of the
maternity records
from Stanger Hospital which indicated both that:
(a)
Ms Mpanza would be booked for a caesarean section after the emergency
caesarean sections
were completed; and
(b)
Ms Mpanza would go the labour ward and an AROM would be performed.
Dr
Kara records that there is no explanation for this very odd sequence
of treatment proposed by the doctor.
[7]
Dr Kara also testified that Ms Mpanza started bleeding heavily and
the medical staff
assumed that this was because of a ruptured uterus.
They decided to perform a caesarean section under a general
anaesthetic.
Dr Kara drew attention to the fact that the course
of the pregnancy had been uneventful, and there was no concern on the
part of
the hospital staff upon her arrival at hospital.
However, several hours later, M[….] was born with signs of
brain
damage. It transpired that Ms Mpanza had suffered a
placental abruption, which had caused the heavy bleeding which
occurred.
[8]
There was also confusion in the ‘Apgar’ schedule which is
a nursing tool
designed to indicate whether a child requires
resuscitation at birth. It records the subjective observations
of the nurses.
The scores recorded on M[….]’s
Apgar chart indicate a child in a reasonable condition, but this was
not consistent
with the compromised state in which M[….] was
delivered, as referred to by the doctors in the medical records. It
is also
contradicted by the fact that it was necessary to resuscitate
M[….], and that oxygen was also administered to him, which
was
also a contradiction if the Apgar scores were accurate.
[9]
Blood tests were carried out on M[….] at birth, and they
indicated high acid
levels in his blood. This is also evident from
other indications in the blood analysis. The acid levels in
M[….]’s
blood establish beyond doubt that he underwent
an HIE.
[10]
Dr Kara was of the view that his clinical examination and the
hospital records clearly show that
M[….] was highly
compromised at the time of delivery and that he is confidently able
to state:
(a)
The injury occurred during the labour process;
(b)
The Apgar’s scores are clearly wrong; and
(c)
That M[….] had suffered an interference with his brain
function, which was
indicated by his inability to suck or cry and the
fact that his body did not have a normal colour. The presence of a
brain injury
makes it highly unlikely that the HIE occurred during
pregnancy and prior to the birth process. In this regard Dr
Kara pointed
out that the defendant’s expert agreed with his
view on this aspect.
[11]
Dr Kara stated that when he eventually saw the MRI
report it confirmed his conclusions. Other possibilities
of the
cause of the brain injury had been excluded and the circumstances
made it all the more likely that an HIE occurred at birth.
[12]
Dr Kara testified that the MRI is a highly accurate tool for
identifying when the injury occurred,
which in this case could only
have occurred between 36 and 44 weeks. Had it otherwise being
the case, the MRI would have
been different. Dr Kara referred
to the work of Professor Volpe (of Harvard University), a paediatric
neurologist who wrote
the definitive textbook on neonatal injuries.
He opines that three factors are necessary in order to establish the
injury
at birth:
(a)
Evidence of foetal distress at birth;
(b)
Neurological depression at birth; and
(c)
Evidence of encephalopathy at birth.
All
three were present here.
[13]
Dr Kara testified that foetal heart-rate was the first detectable
event as a precursor to brain
injury. This is because less
oxygen and blood is supplied to the heart muscle. This could
lead to a lowering or an
elevation of blood pressure –eg. the
heart attempts to compensate for the reduced oxygen and blood supply
by increasing the
heart rate. This can occur during birth when
contractions take place and result in short periods of
intermittent
hypoxia.
[14]
A critical point is reached where the heart is unable to pump enough
blood to the brain, and
the body diverts blood which would have gone
to other vital organs to the brain in order to enable survival.
The next step
is that the brain would shut-off the blood supply to
various parts of the brain which are not essential for life. It
is hoped
that the body recovers in time to re-stimulate the shutdown
brain functions. If this does not happen and the insult is
prolonged,
what is referred to as a watershed pattern of injury
occurs. In most cases the injury is detectable and preventable, and
the cardiotocograph, which records foetal heartbeat and uterine
contractions, would have alerted the staff in time for steps to
be
taken. Monitoring and careful attention to the patient will detect
the problems in the vast majority of cases.
[15]
The second witness for the plaintiff was Professor Eckhart Johannes
Buchmann. He is a Specialist
Obstetrician and Gynaecologist, with a
sub-specialisation in maternal and foetal medicine. He is competent
to speak to the nature
and effects of oxygen deprivation in foetuses
and foetal brain injury. From 2005 – 2012 he was the Head of
Obstetrics and
Gynaecology at the Chris Hani Baragwanath Hospital in
Johannesburg – the largest maternity unit in Southern Africa.
He has
also been the Professor of Obstetrics and Gynaecology at the
University of the Witwatersrand since 2003.
[16]
On the 28
th
of August 2018 he prepared a report dealing
with the treatment of Ms Mpanza and the injuries suffered by M[….].
He investigated
the pregnancy history of Ms Mpanza, including the
ante-natal history of her visits to the KwaDukuza clinic during her
pregnancy,
as well as the hospital records of her delivery.
[17]
Professor Buchmann regarded Ms Mpanza as being a patient at risk
because she had previously undergone
a caesarean section, which meant
that she had a scar on her uterus when she was pregnant with M[….].
This created a weakness.
Her right to undergo a further caesarean
section should have been given serious consideration. The decision by
the hospital staff
to administer an AROM was contra-indicated because
it would accelerate the process of vaginal birth, in circumstances
where the
doctor had said that she would undergo a further caesarean
section.
[18]
Professor Buchmann opined that Ms Mpanza should not have been allowed
to wait so long (an hour
and three-quarters) before seeing a doctor –
this after she had already waited two and a half hours’ before
being seen
and assessed by a labour ward professional. The delay was
unwarranted because she was already in the first phase of labour. By
the time she saw the doctor she was in the active part of the first
stage, being four centimetres dilated. From that time on, she
should
have been properly monitored, involving a nurse at her side so that
the nurse could check the heart-rate of the foetus from
time to time.
This did not happen. Had it been done, the problems which did occur
would have been detected in time for remedial
action to have been
taken.
[19]
Although the doctors thought that the heavy bleeding of Ms Mpanza was
caused by a ruptured uterus
(when in fact it was a placental
abruption), the action of performing an AROM was the worst thing they
could have done in the circumstances.
This would have exacerbated the
effect of the placental abruption, making strengthened contractions
and hypoxia more likely. One
can only assume that when the CTG
detected a low heart-rate at 11:50am, the foetus was already in
distress.
[20]
Professor Buchmann agreed that the MRI is a very good diagnostic tool
for determining the duration
and severity of a foetal brain injury in
the event of oxygen deprivation. The picture in the current MRI
showed a mixture of an
acute profound and partial prolonged
hypoxic-ischaemic brain injury. The failure of the hospital staff to
monitor the foetal heart-rate
once the active stage of labour was
detected delayed the caesarean operation with the increased risk of
hypoxic brain damage.
[21]
The plaintiff’s case was then closed. The defendant led no
evidence, and Mr
Mthethwa
closed its case.
[22]
In the circumstances the plaintiff has clearly established on a
balance of probabilities that:
(a)
Ms Mpanza
arrived at Stanger Hospital in the very early stages of labour.
(b)
She told
the nursing staff that she wanted to give birth by way of a caesarean
section.
(c)
The
attending doctor, for reasons not explained, decided that an AROM was
indicated. This was done, and had the effect of accelerating
the
process of a vaginal delivery.
(d)
Ms Mpanza
then starting bleeding heavily at approximately 12:20pm, because of a
placental abruption. This occurred after the AROM
(performed at
11:50am), and is evidenced by the heart-rate recordings, and would
have had the effect of strengthening the contractions
and increasing
the likelihood of hypoxia.
(e)
Because the
CTG started abnormally, it is safe to assume that the foetal
heart-rate was already abnormal.
(f)
A
combination of prolonged profound hypoxic-ischemic injury and an
acute hypoxic-ischemic event could have been avoided if the medical
staff had properly monitored Ms Mpanza, as they were bound to do in
terms of the internationally accepted procedures and as the
Department of Health Guidelines for Maternity Care provide.
(g)
The failure
to properly monitor Ms Mpanza is evident from the outset of her
arrival at hospital. She only saw a nurse at 7:30am,
having arrived
at 5:00am. She was already in the early stages of labour, and was a
patient at risk because of her previous caesarean
section. She was
then kept waiting for a hour and three-quarters before she was
attended upon by a doctor. At this stage, at the
latest (9:15am), she
should have been monitored. Had she been monitored, the foetal
distress would have been detected at an early
stage, and an
intervention could have been made.
(h)
The AROM
was unnecessary and exacerbated the situation. It was contradictory
and flew in the face of her treatment plan, particularly
because the
vaginal birth was abandoned at 9:15am.
(i)
The
monitoring of the foetal heart-rate would have detected the placental
abruption, and steps to avoid M[….] suffering brain
damage
could have been taken at an earlier stage. They were not, and the
blame must lie at the feet of the hospital staff. They
failed in both
their contractual and common law duty of care to both Ms Mpanza and
M[….] to provide medical services and
treatment with
reasonable skill and care, and without negligence. They were
negligent for the reasons set out above. Their negligence
was
causally linked to the devastating injuries sustained by M[….].
(j)
The
defendant is accordingly liable for 100% of the damages sustained by
M[….] as a result of the hospital staff’s
negligence.
[23]
With regard to costs, it is difficult to understand why this case
came to trial. The defendant
was provided with the plaintiff’s
expert witnesses’ reports, and I understand, consulted experts.
Nevertheless, the
trial went ahead in circumstances where the
plaintiff’s experts were not in any way challenged, with only
one question being
asked of the two of them. That related to whether
a previous urinary tract infection could have caused the brain
injury. Dr Kara
said it could not have done so. I fail to understand
why it was necessary to waste the time of the experts and this court,
all
at considerable expense, when it so easily could and should have
been avoided. It has been suggested that it is difficult to obtain
instructions from the defendant to settle cases of this nature. That
may be, but it is no excuse for the defendant to cause the
holding of
wholly unnecessary judicial proceedings simply because its employees
are reluctant to make decisions. The courts are
not here to do the
administrative functions of the defendant. If the decision was a
difficult one to make, there may be an argument
for having the
experts testify. This was not such a case. I accordingly deem it
appropriate, as a measure of this court’s
displeasure at the
conduct of the defendant’s officials to order that the costs to
be paid, should be paid on the attorney
and client scale. The matter
was clearly serious and warranted the employment of two counsel, and
senior counsel. Given the hoops
through which the plaintiff has been
made to jump, it would have been unwise for the plaintiff to have
done otherwise.
[24]
I make the following order:
1.
The
Defendant is directed to pay to the Plaintiff, in her capacity as
mother and natural guardian of M[….] E[….] D[….],
a boy born on the 19th of February 2014, 100 % (One
hundred percent) of the damages that she may prove
that
M[….] E[….] D[….] has suffered or will in the
future suffer as a consequence of the actions of the Defendant
and/or
its medical or nursing personnel in their treatment of the Plaintiff
and M[….] E[….] D[….] at Stanger
Hospital
at the time of his birth, on the grounds set out in the Particulars
of Claim.
2.
The
Defendant is ordered to pay the Plaintiff’s costs to date on
the scale as between attorney and client, including the costs
of
senior and junior counsel, such to include (but not limited to):
(a)
the reasonable and necessary costs of the plaintiff’s attorney
attending upon consultations
with the under mentioned expert
witnesses and the Plaintiff;
b)
the costs of senior and junior counsel, including their reasonable
and necessary
costs of preparation for the trial and the costs for
the attendance of senior and junior counsel upon consultations with
the under
mentioned expert witnesses and with the Plaintiff as
determined by the taxing master;
(c)
the costs of obtaining and the production of an MRI scan of the
brain, in respect
of which Dr S. Misser has reported, including the
costs of the anaesthetist and hospital fees that were necessary to
obtain the
said MRI scan;
(d) the
reasonable and necessary fees of the under mentioned expert witnesses
including the costs of their preparation
to qualify themselves to
testify at the trial, the costs of their reports, and for
consultations with the Plaintiff’s attorney
and counsel namely:
(i)
Dr C Harris, Nursing Expert ;
(ii)
Professor E Buchmann, Obstetrician & Gynaecologist);
(iii)
Dr Y Kara, Paediatrician;
(iv)
Dr Bates Alheit , Specialist Radiologist ;
(e)
Reservation fees of :
(i)
Professor E Buchmann, Obstetrician & Gynaecologist);
(ii)
Dr Y Kara, Paediatrician;
(iii)
Dr Bates Alheit , Specialist Radiologist ;
(f)
All reserved costs, including the costs of counsel incurred on the
4th of May 2018
in having the matter certified ready for trial at the
Case Flow Conference hearings;
Lopes
J
Date
of hearing:
6
th
of May 2019.
Date
of judgment:
7
th
of May 2019.
For the
Plaintiff:
Mr
Pillemer SC,
with Ms
Beket
(instructed by Friedman &
Associates).
For the Defendant:
Mr
Mthethwa
(instructed by The State Attorney –
KwaZulu-Natal).