Luyanda v Member of the Executive Council for Health,Eastern Cape (114/2014) [2019] ZAECBHC 7 (15 March 2019)

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[2019] ZAECBHC 7
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Luyanda v Member of the Executive Council for Health,Eastern Cape (114/2014) [2019] ZAECBHC 7 (15 March 2019)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO:     114/2014
NOT
REPORTABLE
In
the matter between
ZIMBINI
MPETSHENI OBO LUYANDA

Plaintiff
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN
CAPE

Defendant
JUDGMENT
HARTLE
J
[1]
The plaintiff claims damages in an action
issued out of this court on 3 March 2014.
[2]
She
sues in her personal and representative capacity as the mother and
natural guardian of her minor son, Luyanda (“the child”),

who was born on 3 December 2005 at the Madwaleni Hospital (“the
hospital”).
[1]
Her
claim is based on the alleged negligence of the medical and/or
nursing staff at the hospital during her labour and delivery
of the
child.
[3]
The original premise for the hospital
staff’s negligence is that the plaintiff’s labour was
unnecessarily prolonged
and that they failed to perform,
alternatively to timeously perform a caesarean section to deliver the
child who suffered a hypoxic-ischemic
incident due to perinatal
asphyxia (“the complication”).  This in turn had
caused him to sustain severe brain
damage (“the injury”)
as a result of which he suffers
inter
alia
from cerebral palsy (“the
sequela”).
[4]
The further grounds of negligence alleged
in the plaintiff’s particulars of claim (all denied) are that
the defendant, through
her servants acting vicariously:
4.1
failed timeously, and/or at all, to render appropriate and proper
medical care to her and
the child;
4.2
failed to permanently, alternatively, temporarily, employ the
services of suitably qualified
and experienced medical practitioners
who would be available and able to examine, manage and/or give
appropriate advice in respect
of her labour and to perform a
caesarean section if and when required at the hospital;
4.3
failed to permanently, alternatively, temporarily, employ the
services of suitably qualified
and experienced nursing staff, who
would be able to assess, monitor and/or manage her labour;
4.4
failed to take any action and/or reasonably required steps to ensure
proper, timeous and
professional assessment of her, her monitoring
and management of labour and assistance at the birth process;
4.5
failed to implement such steps as could and would reasonably be
required to prevent the
occurrence of the complication; and
4.6
failed to avoid the complication when, by the exercise of reasonable
care and diligence,
she could and should have done so.
[5]
On 29 July 2014, and under pain of bar, the
defendant filed a plea denying that any of the hospital’s staff
acted negligently
and pleading nescience regarding the allegation
that the child suffers from cerebral palsy, mental retardation and
epilepsy.
Also pertinently disavowed are the allegations of a
prolonged labour or the alleged (or any) complication.  A causal
link
between the supposed negligence on the part of the hospital
staff and the injury was also firmly placed in contention.
[6]
The
plaintiff’s pleadings were amended during the trial (which
commenced in May 2018) to broaden the scope of the alleged
negligence
to include the defendant’s failure to perform, alternatively to
timeously perform, an appropriate intervention
to deliver the child
or to prevent the hypoxic-ischemic event due to perinatal asphyxia,
but confining the period in contention
to the plaintiff’s
prolonged labour at “the second stage of the active phase”
thereof.
[2]
[7]
The
amendment was not objected to, the defendant’s plea of a bare
denial abiding, albeit it had been conceded by the defendant
by then,
only on the second day of trial and quite co-incidentally, that the
injury was a hypoxic-ischemic one which was sustained
in the
intrapartum phase which led to significant brain damage causing
cerebral palsy.
[3]
[8]
This
concession was a significant one because on 26 August 2016, when the
parties held their pre-trial conference, the defendant
was not at all
amenable to admitting that the child was asphyxiated during the
plaintiff’s delivery or that he presently
suffers from cerebral
palsy.  The defendant was not even prepared to admit that
Luyanda was diagnosed with HIE
[4]
Grade II although this diagnosis, made by hospital staff, appears
quite plainly from pediatric notes maintained by the hospital

regarding the treatment of him after his birth  (albeit the
entry is dated 18 September 2006 and was made contemporaneously
with
his later admission to the hospital for the management of this
sequela). The plaintiff’s attorneys had made the latter

document available to the defendant’s attorneys pursuant to the
provisions of Rule 35 (14) of the Uniform Rules of Court
before the
defendant’s plea was delivered. The small bundle made available
by the plaintiff’s attorneys included a
Road to Health Chart, a
clinic card or “passport” of sorts, which is carried by
the mother after the birth of the child
to record the baby’s
birth information and development as well as vaccination plan and
follow ups for growth measurements
etc. In it, under the “Health
Worker Consultation Sheet” section, an entry appears
(ostensibly made by a staff member
of the hospital) on 15 December
2005, coinciding with the plaintiff and the child’s discharge
after his birth, recording
as early as then that the child had
“progressed (from severe low Apgars of 2-5 at his birth) to HIE
grade 2”;
the indicators for such finding; that HIE was the
formal assessment made; and concluding with the relevant plan towards
this end.
[9]
It  also transpired from an affidavit
deposed to by Mr. Sabelo Mgujulwa, the attorney to whom the file was
allocated by the
State Attorney representing the defendant, made in
support of an application to postpone the trial at its commencement,
that the
first of the documents referred to above had been provided
to the Defendant’s legal advisor as early as April 2014 under
cover of a letter  addressed to the hospital CEO, Mrs. Kopeshe,
by the Area Manager Maternity, Mrs. Dangazele,  in pursuit
of
the State Attorney’s request  to make the necessary
medical records available to their office so that they could
consult
and draft the defendant’s plea.  In my view it is a fair
assumption to make that the diagnosis of HIE Grade
II was known to
the defendant when she pleaded, at least from the documentation made
available by the plaintiff’s attorneys
in time before the plea
was delivered.  It is also relevant to mention that Mr. Mgujulwa
claims to have continued to impress
upon the defendant’s legal
advisor that he should follow up with regard to the outstanding
hospital records even after delivery
of the plea so that he could
“amend (it) based on the information available from the
(elusive) records’, but
the defendant failed to get to grips
with the damage causing incident until the trial was well upon her
and the late concession
of a hypoxic-ischemic injury sustained during
the birth process leading to significant brain damage was ultimately
made under the
circumstances referred to above.
[10]
An as an important aside, it is necessary
to deal with the absence of the hospital’s records relating to
the plaintiff’s
confinement and birth of the child.  In
the letter to the hospital’s CEO, which is dated 9 April 2014,
the Area Maternity
Manager explains the absence of these as follows:
“
According
to the unit records (delivery register), on the 3
rd
December 2005, Miss. Zimbini Mpetsheni, 18 years, IP No. 2743/05,
gave birth to a male infant, apgar score was 2/10 in 1 minute
to 7/10
in five minutes, birth mass 3230gms.  Mode of delivery was
normal vertex delivery.  Labour was conducted by registered

midwife Ngoloma B.G.
After
five years of shelf life due to space limitation, I decided to remove
the patient files of up to the year 2005 from the unit
to a place
called Cellar, underneath General ward.  The Hospital does not
have a formal, Archive structure.  I have tried
to look for the
file in Cellar as requested but only found 10 files out of which 08
were deliveries, that of Zimbini Mpetsheni
is not amongst those.”
(Sic)
[11]
The
birth records never came to the fore at the trial, not even the
delivery register from which Mrs. Dangazele’s information
must
have been sourced.
[5]
Mr.
Mgujulwa explained in his affidavit that on the advice of counsel he
had asked for the source document at least (he attached
a copy of a
letter addressed to the hospital dated 9 March 2015 to vouch for
this), but that this had failed to yield any positive
outcome and
that Mrs. Dangazele herself had since retired, leaving nobody to
assist him.
[12]
Rather
surprisingly, given the discrepancy with the second Apgar score in
five minutes referred  to by  Mrs. Dangazele
in her
synopsis of the plaintiff’s admission to and treatment
administered in her ward as being 7/10 whereas it appears openly
from
the pediatric notes and the plaintiff’s Road to Health Clinic
Card that this score remained low in five minutes at 5,
consistent
with an assessment of HIE Grade II,
[6]
the plaintiff entered into an agreement with the defendant regarding
the missing records in respect of which she has indicated
her
“acceptance” that they could not be found as well  as
the explanation given by the defendant with regard to
their pursuit
“as set out by (Mr. Mgujulwa on the defendant’s behalf)
in the application for postponement.”
[7]
In the agreement she alleges no
mala
fides
on the part of the defendant and concurs that it is unnecessary for
her to call the relevant witnesses with regard thereto.
[13]
The absence of the hospital records was a
most unfortunate situation and   is becoming an all too
regular feature of similar
actions against the defendant in this
court, leaving much to conjecture and speculation to the great
disadvantage of the plaintiff
litigant in my view.  Mr. Brown
who together with Ms. Mduba appeared for the plaintiff urged upon me
to make an adverse costs
order to indicate the disapproval of this
court and to put a halt to the common refrain by the responsible
custodians of records
of the provincial departments of health that
these have been destroyed despite a statutory prohibition on such
destruction of these
records, but the adverse costs order which I
issued when I refused the defendant’s application for a
postponement on the
first day of trial was in part to ameliorate this
anomaly already.
[14]
The defendant was also tardy in making
discovery, doing so only after the plaintiff had launched an
application to compel same.
The schedule to the only discovery
affidavit filed on her behalf reveals however that all that she
discovered, additional to the
usual pleadings and notices in the
action, were the same notes from the maternity unit of the hospital,
which do not take the matter
any further. Even absent anything of
substance to discover however, the defendant appears to have little
appreciation of the vital
role she is expected to meet in defending
medical malpractice suits in a manner that is both respectful to the
court and its rules
and mindful of the limited resources of the
State. This disrespect does not end there but continued throughout
the pre-trial processes
as I demonstrate below.
[15]
At
the time of the parties’ initial case management conference the
plaintiff had served and filed expert notices and/or reports
inter
alia
in respect of Dr Phil Pretorius (Radiologist), Dr Diar
(pediatrician), and Dr Burgin (Obstetrician and Gynecologist) on the
issue
of liability, and a battery of others relating to the quantum
of her claim.  The defendant had given notice to call certain

experts of her own, including Dr Yatish Kara (Pediatrician), but had
not filed any reports.
[8]
The plaintiff had apparently also attended certain examinations
conducted at the defendant’s behest, which reports
were
outstanding as at the time of the initial conference.
[16]
In any event at both the pre-trial
conference and in the draft case management order that was put
forward by the parties for the
case management judge to make an order
of court, the agreement was that an arrangement would be made for
joint minutes to be filed
once the defendant had served and filed her
expert reports. (Ironically Mr. Mgujulwa in his affidavit filed in
support of the postponement
application motivated that the main
reason for pursuing the relief sought in that interlocutory
application, was “in order
to allow (rather belatedly in my
view) the legal team to fully prepare for the matter and to engage
with the necessary experts
to assess (the child) and for them
(experts) to prepare written opinions as part of the evidence before
this court.”.
Mr. Ngadlela, who argued the
application for a postponement on behalf of the defendant, also
assured me that the purpose and intention
of the relief sought, if
granted, would,
inter alia,
be to enable her to obtain an expert report and to allow for a joint
minute to come from the corresponding experts, a goal evidently
not
shared by Mr. de Bruyn with whom he appeared from the second day of
the trial, as I will shortly explain.)
[17]
After
the initial case management conference, the plaintiff filed a further
report of Dr Gericke,
[9]
a
Specialist Paediatrician and Geneticist, which ultimately formed part
of the evidence given before me.
[10]
Central to his findings was the report of Dr Pretorius, a
Radiologist, evidently commissioned as early as 1 July 2014 already,

but which only came to the fore in August 2016.
[11]
[18]
It
is necessary to repeat Dr Pretorius’ findings, which were also
ultimately accepted into evidence:
[12]
“
Findings
:
The following
abnormalities were noted:
·
Subtle T2 hyperintensity of the cortex and
adjacent deep white matter in the left precentral gyral region, with
subtle underlying
deep white matter hyperintensity.  There is
also some subtle deep white matter hyperintensity just deep to the
right precentral
gyral region.
·
Two oblique linear intensities in the basal
ganglia, bilaterally, slightly more prominent on the left, with a
small focal hyperintensity
of the posterior margin of the basal
ganglia bilaterally.
·
Subtle bilateral peritrigonal deep white
matter hyper-intensities in the posterior parietal lobes, with slight
thinning of the white
matter in the occipital lobes bilaterally.
·
There is a single focal blooming
hyperintensity in the right temporal lobe at the grey/white
interphase.  This could be due
to a small calcification, focus
of old healed blood products may cause a similar appearance.
No other significant
focal or diffuse areas of abnormal signal intensity, mass lesion,
areas of restricted diffusion is seen within
the grey/white matter in
the rest of the cerebral, in the cerebellar hemispheres or the brain
stem.
The development of the
brain is normal, with normal myelination.
The
pituitary gland and fossa, CCJ, IAM’s, flow voids within major
intracranial vascular structures and paranasal sinuses
were normal.
Comment
:
The
deep white matter, cortical and thalamic changes described above
would
(be)
consistent
with a perinatal hypoxic ischemic injury.
[13]
The
small focus calcification or the old blood product in the right
temporal lobe, is of uncertain origin.
”
[19]
Dr. Gericke in his report highlighted the
important question to be asked from the radiology experts (which also
ultimately formed
the essential focus of the trial) namely:
“
whether
this (referring to what Dr Pretorius had observed on the MRI), in
main complies with an “acute profound” type
of injury
with features of a “partial prolonged” injury as well,
i.e. a mixed injury pattern.
[20]
It is not clear that Dr Gericke formed a
firm view in this respect.  He appeared to accept however that
the small focal calcification
was probably attributable to
haemorrhagic transformation of the ischemic injury, and explains in
this respect that the temporal
lobe, where this old blood product was
noticed, is the most common neonatal haemorrhagic stroke to
localization.
[21]
He explains why the type of
injury exhibited on the neuroimage is important to typify and how it
is identified:
“
These
distinctions assist with estimating the duration of and determining
the causal contribution to the insult to the fetal brain
before
delivery.
All the features observed
with neuroimaging can, therefore, in general, be linked with an
asphyxic insult resulting in hypoxic ischemic
encephalopathy.
Specifically this excludes other prenatal causes of a cause different
from intrapartum asphyxia in this instance.
When the baby suffers
severe or total hypoxia/asphyxia, the insult is called acute/profound
or profound (near total asphyxia). With
very severe insults, there
will usually be a central pattern of focal neuronal injury (deep gray
nuclei injury) to many levels
of the central nervous system, with
diffuse and pronounced neuronal necrosis. When the insult is
relatively abrupt and severe,
there will be injury to the deep
nuclear structures, such as the basal ganglia, thalamus and brain
stem, because total asphyxia
prevents the adaptive mechanism of
shunting.  Thus the cerebral cortex will typically be spared
from injury. Placental abruption,
uterine rupture, prolapsed
umbilical cord and terminal bradycardia (slow heart rate) are
examples of conditions that can cause
acute profound asphyxia, and
are usually recognizable as “sentinel” events in cases
where regular pre-delivery fetal
monitoring has occurred.
When a
baby suffers an insult in which the oxygen deprivation/ischemia is
moderate to severe and relatively prolonged, there is
a cerebral deep
nuclear pattern (injury to deep parts of the brain), and there might
be at least some degree of shunting.
These types of insults
usually cause damage to the cerebral cortex and deep nuclear
structures, especially the putamen and thalamus.”
[22]
He ruled out the possibility of any
underlying pre-existing predisposition to birth asphyxia in the case
of the child and observed
that acute intrapartum asphyxia remains the
primary recognizable cause of neonatal encephalopathic HIE findings
on MRI neuroimaging
clinically associated with a spastic cerebral
palsy outcome.
[23]
Despite the fact that in this
instance an examination of the plaintiff’s placenta appeared
not to have been undertaken so
as to confirm with the benefit of
pathology what exactly caused the birth asphyxia, he was confident to
assert in conclusion at
least that:
“
There
are no congenital/genetic factors ascertainable with the current
information which predisposed baby LM to a birth injury.
[24]
He suggested the further steps to be taken
and the vital documentation to be reviewed in order to determine
whether there had been
substandard obstetric management in the events
leading up to the cerebral palsy outcome and if this might have been
causal to the
birth asphyxia:
“
In
order to reconstruct a chain of events from the moment LM’s
pregnant mother arrived in hospital, leading to a cerebral
palsy
outcome and whether, or not, there had been substandard obstetric
management, the full hospital records and detailed notes
and opinion
of the obstetric expert based on comprehensive factual information
will have to be obtained.  During litigation
procedures, ideally
it is necessary to have access to a readable CTG, a well-documented
partogram, a complete analysis of umbilical
cord gasses, placental
pathology investigations and an intensive clinical workup of the
newborn.  Absence of the data wastes
valuable court time due to
cross-questioning related to debating fundamental and sometimes
peripheral aspects of birth asphyxiation,
as well as the likelihood
of unrelated causes when the basic information underlying any
assumption remains nebulous.”
[14]
[25]
Absent
the birth and neonatal records, Dr Gericke had been furnished with a
brief narrative of key events concerning the plaintiff’s
labour
and delivery, evidently not by the plaintiff herself but by Mrs.
Nondiwele Mpethsheni who had accompanied the child to his
rooms in
Johannesburg for purposes of consulting with him.  I assume
(from the context of his report) that this is the plaintiff’s

mother or perhaps a sister.  He noted further that although
communication had been conducted via an interpreter at the
examination,
it was “somewhat difficult”.  He would
also have looked in vain to Dr Burgin’s report (one of the
reference
documents made available to him) for any narrative because
the details furnished to him too were very sketchy. It is not clear
from the latter’s report incidentally from whom
he
obtained the very brief history indicated therein. This has some
bearing on the premise the obstetric experts who ultimately testified

at the trial relied upon, as will appear below.
[26]
I
digress to deal with the management of the litigation.  By 10
May 2017 already the plaintiff’s attorneys had declared
that
the matter was trial ready and had filed a certificate in compliance
with a general case management directive dated 13 October
2016,
issued by the deputy Judge President.  The plaintiff was ready
to proceed on both liability and quantum, but an order
was issued by
Van Zyl DJP on 9 November 2017 separating liability and quantum and
directing that the registrar allocate a trial
date in the second term
of 2018.  Importantly the following further aspects were
recorded by Van Zyl DJP in his directive:
“
1.
The plaintiff is ready to proceed to trial.
2.
The plaintiff has filed all expert reports with regard to the issue
of liability.
3.
The defendant has failed to comply with the directive to file his
expert reports by the end
of October 2017.
4.
No reason has been provided for the aforementioned failure.”
[27]
The earlier case management directive,
dated 22 September 2017, confirms that Van Zyl DJP directed the
defendant to file her expert
reports by the end of October 2017. No
explanation was ever forthcoming for the defendant’s failure to
comply with such injunction.
[28]
The matter was duly enrolled for hearing on
22 May 2018 by which date the defendant had still not filed any
expert reports.  Despite
lengthy notice of the trial date and
the defendant being aware of her so-called predicament concerning the
absence of medical records
and the unavailability of her preferred
senior counsel for the trial, she delayed until the first day of
trial to bring an application
for a postponement of the trial.
I refused the request for an extension and directed her to pay costs
on the scale of attorney
and client. The trial commenced before me
with the plaintiff’s testimony being given on the first day.
When the matter
stood down to the following morning, Mr. de Bruyn
made a late appearance to conduct the defendant’s defence and
lead Mr.
Ngadlela.
[29]
On
the morning of the third day of the trial after the plaintiff’s
testimony had already been adduced, and the parties only
now paying
heed to Dr Gericke’s suggestion that it was necessary that the
MRI images be reviewed, counsel approached me in
chambers and
informed me that they required the action to be postponed, by
agreement, pending such investigation.  I reluctantly
issued
such an order and directed that the costs were to be costs in the
cause.
[15]
[30]
On 31 May 2018 Dr Pretorius provided an
addendum to his report which reads in simple terms (without any
reasons for his supplemented
finding) that:
“
Review
of the images would indicate that the incident would have been a
profound hypoxic ischemic event during the perinatal period
in a near
to term fetus or infant.”
[31]
This supplement was filed of record by the
plaintiff on 15 June 2018.
[32]
On 9 November 2018 the plaintiff filed a
notice of withdrawal of her notice in terms of rule 36(9)(a) in
respect of Dr S Burgin
who had been on standby to testify in the
first few days of the hearing.  A few days later both the
plaintiff and the defendant
filed notices in terms of rule 36(9)(a)
and (b) in respect of Dr C Ndjapa-Ndamkou and Professor EJ Buchmann
respectively, both
obstetricians and gynecologists.
[33]
Dr Njapa-Ndamkou heralded by his summary,
without any pertinent focus on the supplemented findings of Dr
Pretorius, that he would,
against the background of his experience
and knowledge in managing obstetric patients in labour with the aim
of preventing perinatal
mortality and morbidity, and based on a
narrative furnished to him by the plaintiff and the limited medical
record which he had
at his disposal, explain why he thought the
treatment and care of the plaintiff fell below par, and how that
fact, coupled with
the inappropriate use of fundal pressure to the
plaintiff’s abdomen to deliver the child vaginally may have
resulted in the
HIE in the circumstances.
[34]
Interestingly, what was filed by the
defendant in respect of Prof Buchmann, under cover of the notice in
terms of rule 36(9)(b),
was a “supplementary expert report”
dated 7 October 2018.  It came to light during the latter’s
testimony
that he had prepared an initial report dated 11 May 2016
already.  The plaintiff had not been privy to the contents of
this
report neither does it appear from the court file than an
earlier notice in terms of Rule 36(9)(a) was delivered by the
defendant
in respect of an anticipated summary to be provided by Prof
Buchmann, until in November 2017.
[35]
Whilst the conclusion in Prof Buchmann’s
earlier report advocates that there are many possible explanations
for a baby suffering
a hypoxic ischemic injury around the time of
labour and delivery even in the absence of any substandard care
(which he was careful
to note could not be excluded), he professed to
be unable to confidently assert, in the absence of any clinical
notes, that an
adverse event in labour (as opposed to any other
moment straddling pregnancy to birth) had been causal to the injury.
He
deferred to the paediatric and radiology experts to suggest
a possible cause and timing for the child’s injury.  He
observed that there was no evidence of any sentinel events during the
labour but was again astute not to assert the contrary view
that
their presence could not be excluded.   In his view and
based on the limited allegations made in the plaintiff’s

particulars of claim - it appears that this pleading and the
plaintiff’s Road to Health Card were his only points of
reference,
he was of the view that her labour (maximum 17 hours) was
in the normal range and therefore not prolonged.  He conceded
that
the pleaded need for the induction of the plaintiff’s
labour (an allegation in the particulars of claim that appears to
have
been a mistake and not confirmed in the evidence) might have
been a reason or risk factor on admission. More critically, and
although
not in the loop concerning the exact details of the
plaintiff’s labour, he pointed to the number of conditions that
are difficult
to recognize and treat appropriately, regardless of the
presence of any substandard care.  Finally, he expressed the
view
that studies on cerebral palsy and caesarians have found that
caesarian section is not associated with the reduction in incidence

of cerebral palsy especially since the appropriate management, if it
is a caesarian section, may not be immediately available,
at least
not within 20 to 30 minutes.
[36]
His later report confirms that he had now
had insight into the reports of Drs Gericke, Burgin and Pretorius
(including the supplementation
so it appears), the hospital statement
of Mrs. Dangazele (which as I have indicated above is misleading
regarding the actual Apgar
score of the child in five minutes) and
the court transcripts of the plaintiff’s evidence given over
the course of the first
two days of trial.  (This evidence
would, for obvious reasons, not have covered the import of Dr
Pretorius’ supplemented
finding.) It is not clear that he had
regard to Dr Njapa-Ndamkou’s report in compiling his however
because, although mentioning
the plaintiff’s statement that the
two nurses who had assisted her at birth had “applied some
pressure to the upper
part of her abdomen”, he does not deal
with the allegation of the inappropriate fundal pressure being causal
to the injury
at all.
[37]
Be that as it may his summary (later
endorsed in his evidence) heralded that he would, despite his
previous deference to the paediatric
and radiology experts to suggest
a possible cause and timing for the injury, now venture his own firm
opinion.   He claimed
that the reports of the specialists
made available to him had assisted him in trying to identify the
cause for the cerebral palsy
and timing of the causative event.  He
now, with confidence, asserted that he would ascribe it to a sentinel
event, the most
probable cause being an umbilical cord accident
(compression) which had occurred in the last thirty minutes before
delivery. As
such, as is the case with acute profound events in
low-risk situations, the damage causing event would have been
unforeseeable,
of rapid onset and with no warning. He agrees that
there appears to have been substandard foetal heart rate assessment
throughout
the plaintiff’s labour but was inclined of the view
that even optimal half-hourly monitoring, with identification of the
acute profound event, would not have allowed an effective response to
prevent the injury.
[38]
The nub of his report concerns his
explanation why Dr Pretorius’ finding of an acute event puts
paid to the theory that substandard
care on the part of the hospital
staff increased the risk of the child suffering the injury, and
indeed why the latter’s
finding is, in the first place,
justified in relation to the neuroimaging:
“
2.1.2
Intrapartum causation
The
child’s MRI brain scan shows evidence of a profound (also known
as ‘acute profound”) hypoxic (lack of oxygen)
ischaemic
(lack of blood flow) brain injury This affects the deep grey matter
(basal ganglia and thalamus) and also the associated
deep white
matter and perirolandic (precentral) gyri of the cerebral cortex. Dr
Gericke’s report suggests that the injury
occurred before birth
and during labour. If so, such an injury would have been of severe
grade (total or near-total asphyxia) and
of short duration (10-25
minutes). In addition, it would have been of sudden onset and not
(have) been preceded by a deteriorating
(warning) fetal heart rate
pattern. Most cases of acute profound brain injury in surviving
infants have their onset less than 30
minutes before delivery,
showing as a sudden and unremitting drop in fetal heart range from
the normal range (110-160/minute) to
below 80/minute. This is the
nature of intrapartum acute profound brain injury. The other classic
injury pattern related to intrapartum
hypoxic ischaemic brain injury
is ‘prolonged partial’, which affects the cerebral cortex
and subjacent white matter,
particularly in the watershed areas. In
such instance, the injury is less severe (partial asphyxia) and
develops slowly over several
hours (minimum 30 minutes), often
preceded by a deteriorating fetal heart rate pattern that gives
warning of developing hypoxia.
The
prolonged partial injury pattern was not observed in this case.
”
(Emphasis added)
[39]
Before
dealing with the evidence which was led at the trial, it is necessary
to make certain observations regarding the way the
defendant
conducted her defence. The plaintiff, to a lesser extent, made
herself guilty of delaying interrogating the timing and
cause of the
hypoxia (and obtaining the detailed history suggested by Dr Gericke),
although this was occasioned by the defendant’s
failure, until
it was foisted upon her when I refused the postponement of the trial
and Mr. de Bruyn came aboard, to engage meaningfully
with experts
concerning these aspects.
[16]
As indicated above, admissions regarding the injury and its sequela
could  have been made earlier in the day, subject
to whatever
reservations there were concerning the issue of causality.
More importantly, clarification of the radiology
report could have
been sought at an early opportunity especially since Dr Pretorius’
original report has been in circulation
since the parties’
first pretrial conference.  With hindsight other crucial
concessions could have been made regarding
the substandard care the
plaintiff received at the hands of the nursing staff.  Instead
the real points of contention emerged
or morphed into being on a
gradual and evolved basis, ever changing the emphasis in the trial,
ostensibly in absolute disregard
of the rules of court and of
practice.
[40]
The
reports of the opposing experts who ultimately testified were filed
without the leave of the court being obtained, but evidently
without
demur from either party despite the clear provisions of rule 36(9)(a)
and (b) which require such a report to be filed “not
less than
ten days
before
the
trial”.
[17]
[41]
The “trial” had, in my view,
commenced on 22 May 2018 already and the notices and summaries were
filed hopelessly out
of time, obfuscating their purpose, which is to
obviate any element of surprise at the trial. The defendant also
couldn’t
even be bothered to follow the scheduling order of the
Van Zyl DJP, or to explain her failure to meet this target, let alone
seek
condonation for her disregard of this court’s directive.
[42]
Leaving aside the clear provisions of Rule
36, there are two further injunctions concerning expert testimony
which direct litigants
to seek and find common ground, where
applicable, before the trial commences.
[43]
The first is provided for in paragraph 2 of
the Joint Rules of Practice of this Division (“JROP”)
which states as follows:
“
2.
Expert Evidence
(a)
The time periods stipulated in Uniform Rules 36 (9) (a) and (b) must
be adhered to and, in the absence
of agreement between the parties,
the Court will only on good cause shown condone any departure
therefrom.
(b)
The summary of the evidence to be given by an expert witness must
contain at least sufficient information
to enable the other party to
determine the extent to which he agrees or disagrees with the
evidence of such expert witness.
(c)
Any party will be entitled to request and be furnished with an
amplification of the summary of expert
evidence delivered by the
other party to the extent necessary to achieve the purpose referred
to in sub-rule 2 (b) above.
[18]
(d)
Where practicable, a summary of the points of agreement and
disagreement between the experts giving
evidence for the parties
should be incorporated in the minutes Rule 37. Those minutes should
also state whether the parties have
agreed or disagreed to exchange
the reports of their expert witnesses.”
[19]
[44]
The
second is the Draft Practice Directive in respect of Case
Management,
[20]
applicable in
the Bhisho and East London High Courts since 22 October 2013 (“The
Draft Practice Directive”).
[21]
[45]
In the context of the present matter,
the Draft Practice Directive requires the parties to hold an initial
case management within
one month of the close of pleadings and to
deal with the peremptory provisions set forth in par 6 (4) thereof.
The latter paragraph
requires the parties to reflect on,
inter
alia
, the controlling and scheduling of
examinations and expert testimony under Rule 36 (subparagraph (e)),
the curtailing of issues
in dispute between the experts by their
participation in the pre-trial conference or in any other manner
(subparagraph (f)), and
such other matters as may facilitate the just
and speedy disposal of the case (subparagraph (l)).  These same
issues are expected
to be covered again at the final pretrial
conference and the expectation is that the parties should be held to
their agreements
(recorded in the draft case management and final
pre-trial orders respectively), which will govern the subsequent
conduct of the
proceedings. These agreements are to be modified by
the Judge only on good cause shown (paragraphs 8 and 12).
Indeed, issues
and objections not specified in the pre-trial order
shall not be available to the parties at the trial (paragraph 13) and
the final
pre-trial order is expected to be amended only to prevent
manifest injustice to the parties.
[46]
On 28 February 2014 , after the launch of
the pilot case management project in Bhisho and East London, the
Chief Justice, pursuant
to the provisions of section 165 (6) of the
Constitution, read together with the provisions of
section 8
of the
Superior Courts Act, no 10 of 2013
, by way of Government Gazette
37390, dated 28 February 2014, issued “Norms and Standards”
for the exercise of judicial
functions of all courts.
[47]
The objectives of these are:
“…
.to
achieve the enhancement of access to quality justice for all; to
affirm the dignity of all users of the court system and to
ensure the
effective, efficient and expeditious adjudication and resolution of
all disputes through the courts, where applicable.
These
objectives can only be attained through the commitment and
co-operation of all Judicial Officers in keeping with their oath
or
solemn affirmation to uphold and protect the Constitution and the
human rights entrenched in it and to deliver justice to all
persons
alike without fear, favour or prejudice in accordance with the
Constitution and the law.”
[48]
One of the ways in which these objectives
are to be met is through judicial case flow management.
Paragraph 5.2.4 of the Norms
and Standards deals with this core
judicial function in more detail:
“
JUDICIAL
CASE FLOW MANAGEMENT
(i)
Case flow management shall be directed at
enhancing service delivery and access to quality justice through the
speedy finalization
of all matters.
(ii)
The National Efficiency Enhancement
Committee, chaired by the Chief Justice, shall co-ordinate case flow
management at national
level.  Each Province shall have only one
Provincial Efficiency Enhancement Committee, led by the Judge
President; that reports
to the Chief Justice.
(iii)
Every Court must establish a case
management forum chaired by the Head of that Court to oversee the
implementation of case flow
management.
(iv)
Judicial
Officers shall take control of the management of cases at the
earliest possible opportunity.
[22]
(v)
Judicial Officers should take active and
primary responsibility for the progress of cases from initiation to
conclusion to ensure
that cases are concluded without unnecessary
delay.
(vi)
The Heads of each Court shall ensure that
Judicial Officers conduct pre-trial conferences as early and as
regularly as may be required
to achieve the expeditious finalisation
of cases.
(vii)
No matter may be enrolled for hearing
unless it is certified trial ready by a Judicial Officer.
(viii)
Judicial Officers must ensure that there is
compliance with all applicable time limits.”
[49]
As is apparent from the Draft
Practice Directive applicable to this court, which is in line with
the Norms and Standards, case management
envisages the taking of
control by the judges of the cases that are issued out of our court
from the first issue of the litigation
to finalisation of each
matter.
[50]
Up until the introduction of case
management in Bhisho/East London, practitioners controlled the pace
of their cases; followed no
litigation plan or schedule; and
determined when matters would be enrolled for hearing without
consideration to the exigencies
of the case, the convenience of the
court, or the expense to the litigants.  As a result, cases were
slow to be finalised
and caused a deadlock in the system.
[51]
Legal practitioners do not own the courts.
Neither do judges.  Rather, justice belongs to all the people
and is an expensive
commodity to provide.  The duty falls to
judges through the core function indicated above to effectively
manage that resource.
Practitioners in turn are required to
assist the court in case management processes.  The ultimate
beneficiary of a well-managed
system should be the litigant seeking
access to justice through our courts.  His/her experience should
be a fair and swift
process and one in respect of which he/she should
have every confidence that justice will be dispensed without any
delay.
[52]
Apart from eliminating backlogs and
delays, case management is a valuable tool in the administration of
justice.  It promotes
transparency and offers a better
adversarial trial system.  The parties are strictly held to a
schedule.  The trial commences
promptly when it is expected to
run, and because the issues are succinctly crystalized and there are
no surprises or twists and
turns, the trial judge can practically
almost write his/her judgment premised on what the parties say the
case will be about even
by the time the trial begins.
[53]
The two key objectives of case management
are, firstly, to get cases through the system as expeditiously as
possible and, secondly,
to minimize the costs impact to litigants.
[54]
The implementation of case management in
the pilot courts of this Division is a well-known phenomenon and is
an established practice.
Indeed, trial dates will only be allocated
after substantial compliance with the Draft Practice Directive and if
the case management
judge is satisfied that matter is as trial ready
as it can be, with the proverbial battle lines drawn. Orders made in
this process
are also regarded in a serious light.
[55]
In this instance not only did the defendant
agree that she would co-operate in respect of compiling joint minutes
if it came to
the employment of her own expert, but gave the
impression, by her failure to adhere to Van Zyl DJP’s
scheduling order in
time, without applying for any extension, at
least until the specious application for a postponement of the trial,
that she would
probably not file an expert report at all.
[56]
In
Skom and Singatha v The Minister of Police and Another, a judgment of
the Bhisho High Court,
[23]
Roberson J  had reason to deal with the effect of a case
management order issued by Stretch J at a pretrial conference at

which she had directed the parties to address certain pertinent
issues in the action and to file an additional Rule 37 minute dealing

with these.  It suited the defendant’s purposes in that
matter to submit at the hearing of a special plea that Stretch
J was
not entitled to make the order which she did in her case managing
capacity and that case management is merely “facilitative
and
does not usurp the law”.   Instead, the court held,
with reference to the Norms and Standards and the objectives
to be
met thereby, including the obligatory nature of the judicial function
exercised by Stretch J in the circumstances, that the
case management
order was indeed valid and binding on the parties and gave the
defendants short shrift for being formalistic in
the circumstances.
She noted that:
“
This
manner of conducting litigation (that is, treating the court’s
attempt at curtailing the issues in a meaningful way through
case
management orders as if they were meaningless) is, in my view,
unacceptable and disappointing.  A court should not be
hampered
in this way from adjudicating the crucial disputes between parties
and reaching a just decision.”
[24]
[57]
The
binding nature of agreements reached between litigants in the context
of case management (and the expectation that experts should
sensibly
make them to limit disputes) was also recently pronounced upon by the
Supreme Court of Appeal in Bee v Road Accident Fund,
[25]
albeit in a situation where one of the parties sought to resile from
such an agreement:
“
A
fundamental feature of case management, here and abroad, is that
litigants are required to reach agreement on as many matters
as
possible so as to limit the issues to be tried. Where the matters in
question fall within the realm of the experts rather than
lay
witnesses, it is entirely appropriate to insist that experts in like
disciplines meet and sign joint minutes. Effective
case management
would be undermined if there were an unconstrained liberty to depart
from agreements reached during the course
of pre-trial procedures,
including those reached by the litigants' respective experts. There
would be no incentive for parties
and experts to agree matters
because, despite such agreement, a litigant would have to prepare as
if all matters were in issue.
In the present case the litigants
agreed, in their pre-trial minute of 14 March 2014, that the purpose
of the meeting of the experts
was to identify areas of common ground
and to identify those issues which called for resolution….
[26]
Since
it is common for experts to agree on some matters and disagree on
others, it is desirable, for efficient case management,
that the
experts should meet with a view to reaching sensible agreement on as
much as possible so that the expert testimony can
be confined to
matters truly in dispute. Where, as here, the court has directed
experts to meet and file joint minutes, and
where the experts have
done so, the joint minute will correctly be understood as limiting
the issues on which evidence is needed.
If a litigant for any reason
does not wish to be bound by the limitation, fair warning must be
given. In the absence of repudiation
(i.e. fair warning),
the
other litigant is entitled to run the case on the basis that the
matters agreed between the experts are not in issue.
”
[27]
(Emphasis added)
[58]
Negative attitudes toward case management
should not be countenanced and it is clear that even the Supreme
Court of Appeal is determined
to undergird the objectives of the
Norms and Standards through the tools of case management by giving it
the necessary teeth:
“
Whatever
may have been the attitude to litigation in former times, it is not
in keeping with modern ideas to view it as a game.
The object should
be just adjudication, achieved as efficiently and inexpensively as
reasonably possible. Private funds and stretched
judicial
resources should only be expended on genuine issues.”
[28]
[59]
In the present instance there was, firstly,
no excuse to ignore the scheduling order, neither was it open to the
defendant to assume
that she could keep her options option, forever
and a day, to brief experts when she felt herself good and ready or
to wake up
during the trial and seek amplification of the plaintiff’s
original report of Dr Pretorius. She could also, if she were mindful

of the objectives of case management which required her to
meaningfully curtail the issues in dispute, have reflected more
seriously
on admissions which could have been made. Secondly, it was
simply unacceptable once the decision had been taken ultimately to
engage
the expert testimony of Prof Buchmann to adopt the stance that
she would not encourage the participation of her expert with the

plaintiff’s, especially on the newly evolved issue of Dr
Pretorius’ finding, to explore common ground and reach
agreement
on the enduring areas of contention.  Mr. du Bruyn
simply dismissed from his mind any binding obligation on the part of
the
defendant to attempt to curtail the issues in dispute between the
experts and questioned this courts authority to order the defendant

to engage on this basis. I was astounded that when in court I raised
this expectation on the part of Prof Buchmann to sit down
with Dr
Njapa-Ndamkou and work through areas of contention, even
he
furiously shook his head as if to demonstrate that he would not.
This intransigence is also in direct contradiction with
the parties’
agreement reached at their initial case management conference in
August 2016 that if and when the defendant
appointed an expert there
would be a commitment to provide a joint minute. It further set the
tone for a standoff and some posturing
between the experts, resulting
in Dr Njapa-Ndamkou taking offence at what he imagined were slurs
against his professional integrity.
The expert testimony took up an
entire week.
[60]
Apart from protracting the proceedings
whilst the experts did battle, the defendant’s failure to
meaningfully curtail the
proceedings and to apply her mind to matters
of limited substance at the end of the day, i.e. that which turned
out to be critical
following Dr Pretorius’ supplemented
finding, also impacted the flow of testimony.  Ideally a
narrative would be provided
to an expert (to be confirmed in the
litigant’s testimony) which forms the basis upon which he
furnishes his opinions and
reasons, but in this instance the
plaintiff first testified and the need for expert input on the nature
of the injury relevant
to the factual lead up thereto only became
apparent after that juncture.  A detailed history was
subsequently obtained from
her by Dr Njapa-Ndamkou and formed the
basis for his report.  In some instances, this turned out to be
discordant with the
testimony given by her at the trial (and to the
plaintiff’s other experts but), but then the plaintiff cannot
be blamed for
not giving as comprehensive a narrative in the first
place because the point of real contention only became apparent after
the
findings of Dr Pretorius were clarified. Indeed, her evidence was
not really challenged by the defendant at all, and everyone appeared

to miss the import of her reference to the pressing of her tummy as
constituting “fundal pressure” or the
Kristeller
Expression   as it is known in the medical literature,
which gained traction only after Dr Njapa-Ndamkou gave it some

significance in reasoning what might have been causal to the
hypoxia.   This of course led to objections being raised

against the plaintiff’s supposed inadmissible hearsay evidence
to the extent that some of the ground covered by Dr Njapa-Ndamkou
in
his testimony had not been mentioned by the plaintiff herself in her
testimony.  As a result, it was necessary for her
to be recalled
to cover the gaps, but it was so patently inopportune for her make a
second appearance in court because she was
frail and very ill on the
day and clearly made reckless mistakes, such as, for example,
regarding the time of the delivery of the
child which was at odds
with the common cause fact that she was delivered at 22h00 and not
23h00 as she misstated.  Another
important allegation on the
part of the plaintiff that there had been an intimation given to her
by a nurse that she would deliver
at 16h00 which was consistent in Dr
Njapa-Ndamkou’s view with the moment the risk factor changed,
was glossed over or missed.
In my view this was an honest mistake on
the part of Mr. Brown who thought it had been dealt with in the
evidence.  I refer
to the following passage in the transcript,
when Mr. de Bruyn raised an objection to the plaintiff’s
testimony in this respect,
which bears this out:
“
MR
DE BRUYN
M’Lady,
may I make our position clear, there is no evidence by Ms. Mpetsheni
that she was told at 1 o’clock that she
will give birth at 4
o’clock, the report of Dr Ndamkou who said that is what she
told him.  Not in her evidence in May,
did she mention that at
all, and not yesterday.  So there is only this hearsay statement
to Dr Ndamkou, there is no evidence
that she was told, no acceptable
evidence that she was told she was going to give birth at 4 o’clock,
that is our case and
I am putting it on the table now, there is no
acceptable evidence for that.
MR
BROWN
M’Lady,
I will take time and go through the record again and then locate her
evidence in that regard.  My recollection
is that she said
specifically that at 1 o’clock the pain was so severe that she
could not even step on her left leg M’Lady,
and that is when
there was this communication, but I will find it specifically in the
record.”
[29]
[61]
If the trial had followed the normal
expected trajectory, and the issues in contention properly raised
before the evidence had commenced,
this confusion would unlikely have
arisen.
[62]
Another aspect deserving of censure is that
complex medical literature was constantly being offered, as the
expert testimony wore
on, to prove or disprove certain assertions.
Instead of committing to a properly formulated bundle at the outset,
which both
experts could get to grips with before their testimony
commenced to avoid unnecessary interruptions, the defendant purported
to
hand up an open lever arch file (Exhibit E) and to fill it with
articles as the wind blew.  In some instances, the literature

being referred to by Dr Njapa-Ndamkou in his testimony, which had in
the first place been brought to his attention by Prof Buchmann
and
was necessary for Mr. Brown to cover with him in re-examination, was
disavowed by the defendant as forming part of her case!
His reference
to these articles at this juncture resulted in him having to return
to court on a third day (after having indicated
on the afternoon of
the second day a dire need to return to his practice) in order to be
subjected to further cross examination,
this because Mr. De Bruyn
asserted that it was now necessary to
study
the articles overnight (obviously considered by them before because
they made them available to the doctor in the first place)
in order
to re-examine him on interpretations held by him which were contrary
to those of Prof Buchmann.  This caused me to
remark that it
appeared that Dr Njapa-Ndamkou was being punished for taking a
different view and I daresay this could not have
left him with an
endearing impression of his experience in court or have affirmed his
dignity as a user of the court. The haphazard
way the literature came
to be introduced is to be deprecated in a court where case management
practices dictate that bundles and
the relevant status of documents
be agreed up front by the parties to facilitate the just and speedy
disposal of a matter, more
especially when it comes to documents to
be relied upon by the expert witnesses. Even the following morning,
when cross examination
of the doctor resumed, the defendant’s
papers were not in order and the cross referencing to them was
clumsy.  This
in itself was disrespectful to him, given the
premise on which the matter had stood down on the afternoon before.
[63]
I turn now to deal with the fact of the
peculiar nature of the injury that the defendant claims renders it
implausible that the
substandard management of her labour was causal
thereto or that anything the hospital staff did or failed to do were
causative
factors that played a role in the events leading to the
injury suffered by the child. Prof Buchmann sought to pass off the
event
as an “unlucky one” and merely coincidental, as it
were, to the substandard care received by the plaintiff at the hands’

of the staff, a below par standard he quite readily conceded.
[64]
The premise that the cause of the damage
was an acute profound (sentinel) hypoxic ischaemic event that
happened intrapartum without
warning rests on Dr Pretorius’
evidence regarding what the images would indicate. This witness
himself did not say anything
more than that the incident would have
been a hypoxic ischaemic event during the perinatal period in a near
to term foetus or infant.
The MRI images themselves were not provided
and no basis is indicated in his report itself to explain why he
comes to this conclusion
and certainly no opinion is ventured why the
pattern of injury observed by him excludes the possibility of a
partial prolonged
event as well.  It is a mere conclusion which
the parties accepted.
[65]
The paraphrasing of the MRI report to mean
that the cause of the event was a sentinel one, and that it was
therefore one that happened
suddenly and without warning during the
delivery came from counsel.  In my view Dr Pretorius ’remarks
concern only the
nature of the damage observed by him on the MRI
images and the timing of the injury.
[66]
Dr Gericke did not make any
deductions himself although he called attention to the difference
between the two types of injury and
explained why it is important to
make the distinction. This assists with determining the duration of
and determining the causal
contribution to the insult to the foetal
brain before delivery.  One gets the impression from reading the
latter’s report
that he wasn’t certain that a partial
prolonged type of event could be excluded, based on what Dr Pretorius
observed from
the images, hence the reservation expressed in my view.
The purpose of Dr Gericke’s report was ostensibly not to reach
a
conclusion in this respect.  He correctly deferred to the
radiology experts to make this call.  His objective appears
to
have been to exclude other prenatal causes of a cause different from
intrapartum asphyxia in this instance, a conclusion everyone
appears
to have been comfortable with and I too am satisfied that we are here
dealing with an intrapartum event.
[67]
Dr Njapa-Ndamkou without hesitation also
deferred any opinion in this regard to the radiologist although he
remarked under cross
examination that one would unlikely have picked
up the features of a partial prolonged asphyxia consistent with his
theory of a
gradual evolving hypoxia (preceding the acute
catastrophic event contended for by the defendant) on the child’s
brain scan.
[68]
Prof Buchmann on this critical aspect said
that the partial prolonged pattern injury was
not
observed in this case, but it is not
clear if he meant
he himself
could not observe such an injury pattern, or whether he was simply
restating what Dr Pretorius had concluded in his addendum, which

incidentally is not that a prolonged partial injury pattern was
not
observed. When he testified, he professed to have no knowledge of how
to read the MRI and conceded that he would “go with
(Dr
Pretorius’) report”. However, he relied on literature to
promote his support of Dr Pretorius’ supplemented
finding as
meaning that the likely causal event was one of the recognized
sentinel events which can happen intrapartum without
warning and
exhibiting all the usual features of such an event which Dr Gericke
lists above,
[69]
One’s own recourse to literature
makes it plain that mixed patterns do exist and that when energy
substrates are depleted
in partial prolonged asphyxia (as Dr
Njapa-Ndamkou sought to explain in practical terms in describing the
possible cause of and
lead up to the catastrophic injury as it were),
there can be a further assault in the form of near total collapse.
This would be
seen where there is sudden bradycardia superimposed on
a decline in the baby’s heart rate that is more gradual.
I believe
that in addition to the injury from the partial prolonged
assault in the so called “watershed areas” or beyond, in
more severe insults, the severe bradycardia events cause damage to
the putamina and thalamus, and sometimes the hippocampus, vermis
and
brainstem.
[70]
The difficulty I have in discounting any
mixed injury pattern is compounded by the fact that there is an
absence of any reasons
for Dr Pretorius’ opinion as a
radiologist, vitally necessary to inform and assist the court in this
respect. Was he mindful
that his opinion was being sought from a
medical forensic point of view and that is was necessary to
pertinently exclude the possibility
of a mixed type pattern as had
vexed Dr Gericke or did he just go so far as to confirm the
appearance and timing of the injury?
Certainly, he did not seek to
deal with the cause of such an injury and indeed neither would this
be within his field of expertise.
I do not know and am hesitant
to rely on his conclusion beyond what it obviously states.  The
absence of any reasons or explanations
for his terse conclusion in
respect of an aspect so critical to this trial is of great concern to
me.
[71]
A litigant in an action such as the present
one is in a sense confounded by a finding of an acute profound injury
as opposed to
a mixed one including features of a partial prolonged
type, as was demonstrated by Mr. de Bruyn’s “Aha!”
moment
when Dr Ndjapa-Ndamkou appeared to concede that his assessment
of the lead up of the child’s injury  was rather of a

classic partial prolonged type of event than one fitting in with Dr
Pretorius’ supplemented finding of an acute profound
injury.
This is because (as was spelt out in Prof Buchmann’s testimony
based on medical literature) the latter injury is
limited to a
sentinel event, involves an unremitting supply of oxygen to the
child’s brain for a period of 30 minutes and,
more importantly,
would come upon unexpectedly and without warning so that, on an
application of the applicable legal principles,
hypothetical
substandard management of the plaintiff’s labour would be
irrelevant as it would have played no role in the
occurrence of the
injury.  It becomes facile to argue then that such an event
would also not have given the staff enough time
to perform a
caesarian section or other obstetric intervention so as to have
successfully averted the outcome.  On an argument
in support of
a partial prolonged type of event however there would be a gradual
development of hypoxia and the lack of monitoring
would be relevant
because there would be ample forewarning of an impending catastrophe
if the staff were vigilant and picked up
what they ought to have in
the peculiar circumstances.  An abnormal heart rate would be
detected during uterine contractions
assuming proper monitoring and a
caesarian section could be performed (urgently if necessary) to
expedite delivery.  The lack
of adequate monitoring (conceded in
this instance) would constitute a negligent omission, and factual
causation, on this argument
would be found in the creation of a
situation where the child is placed at risk of, amongst others,
hypoxia, which could have been
averted by proper, adequate
monitoring.
[72]
This
is demonstrated by the SCA’s split finding in Magqeya v MEC for
Health, Eastern Cape
[30]
where
the majority of the court held that, following upon the parties’
acceptance of the report of the radiologist in that
case that the
features “are those of a chronic evolution of a global insult
to the brain due to hypoxic ischaemic injury,
of the acute profound
type, most likely occurring at term.”,  that the failure
(even assuming negligence on the part
of the hospital staff to
examine and properly monitor the mother at the key times) would have
had no causal effect on what happened
or in causing the hypoxia.  In
that matter too the court
a
quo
had ostensibly not enjoyed the benefit of any specialist neurological
input on the typical features of these injuries or their
peculiar
causes as suggested in literature (or any oral testimony from the
radiologist)
[31]
. In the
result the fate of the appellant (plaintiff) was dispensed with
(appeal dismissed) on the simplistic basis that:
“
Whilst
such failure (the assumed negligence) may well have been relevant had
we been concerned with what was described as a ‘partial

prolonged type brain injury’ that occurs over hours, it is not
for ‘an acute profound type’, as in this case.”
[32]
[73]
It is perhaps also relevant to mention that
Majiedt JA in the minority judgement in Magqeya had reflected
lexically on the wording
employed in the radiologist’s report
and had concluded that it ‘appears to be confusing and, on the
face of it contradictory’,
since it alluded to a ‘chronic
evolution’(the opposite of a disease of sudden onset and brief
course), but the majority
felt constrained to disagree because
“(t)here is simply nothing to gainsay (the radiologist’s)
conclusion.” The
report, as in this instance, had been admitted
into evidence by consent and no reservations had been expressed about
it by any
of the experts who testified during the trial.
[74]
Interestingly,
it was only Majiedt JA’s lexical justification that had given
him the confidence to conclude that the acute
profound hypoxic
ischaemia “was not a sentinel event as understood in the
medical profession as defined in Stedman’s”
(the medical
dictionary to which he had referred to interpret the concept’s
meaning), but instead (as the radiology report
itself suggested),
“hypoxia and foetal distress which developed, undetected due to
the lack of monitoring, over some time.”
[33]
This
demonstrates an unfortunate recognition that upon a mere label of an
acute profound injury the probability of a sentinel event
as causing
the injury, as opposed to a foetal distress gathering impact
gradually, will of necessity attenuate the enquiry into
factual
causation on the side of the acute profound line, rendering
hypothetical negligence practically anecdotal.
[34]
[75]
I mention that although the plaintiff
in
casu
accepted Dr Pretorius’
report without question, Dr Njapa-Ndamkou was ostensibly not alive to
the forensic import of the distinction
or the fuss been created by
the SCA judgment. Prof Buchmann, who was involved in testifying as an
expert in the Magqeya matter,
however, was, and addressed his
professional review of the Plaintiff’s account of her labour
and the birth of the child on
the side of the typical features of an
acute profound injury.
[76]
It is no wonder then that the late
supplementation by Dr Pretorius’ of his supplemented findings
in this instance caused the
sharp about turn in the way the defendant
conducted her defence from that point onwards.
[77]
In any event and bearing in mind the onus
on the plaintiff to prove on a balance of probabilities that the
conduct complained of
caused the harm, I turn to deal with her
evidence.
[78]
She
testified that she was admitted to the hospital on 3 December 2005 at
approximately 07h30 after having experienced labour pains
from
approximately 03h00 on the same day.
[35]
Her membranes ruptured at approximately 07h30 and she was then
admitted to the labour ward at approximately 08h00.
There she
was assessed by a nurse who did a vaginal examination and auscultated
the foetal heart rate (with an unknown instrument)
before admitting
her to a waiting bed in the labour ward.
[36]
She related in her testimony that she was not given any
information regarding the condition of her baby nor was she informed

of the progress of her labour for the entire day and continued to
suffer severe pains in her abdomen and back, although to Dr
Njapa-Ndamkou she stated that she had been told at 13h00, after a
vaginal examination, that she would give birth at 16h00.
[37]
[79]
She
was unattended for the remainder of the day and at approximately
16h00 there was a significant change in the nature and frequency
of
the pain which she had been enduring, described by her as a “right
through pain”. She however remained unattended,
a nurse merely
checking her file and informing her from this source that her time is
not coming yet. No further assessments were
done on her nor was the
condition of her baby monitored in any manner.
[38]
She was promised by a nurse who came on after shift change that she
would come and check on her, but she did not return to do so.
[80]
At
approximately 22h00 (this must be 21h00) the pains in her abdomen and
back became excruciating and unbearable involving both
her “front
and back” and her left leg was not even wanting to touch the
ground so painful was it.
[39]
She therefore started screaming. A nurse checked her vaginally in
order to establish the position of the child’s head and

informed her that she would give birth soon. She also palpated her on
both sides of her stomach.
[81]
Two
elderly nursing sisters attended to her in the ward ultimately.
Earlier one of them had inserted a drip into her hand
[40]
and went away leaving her for 50 minutes before returning with the
second nurse who helped with the birthing process.
[41]
One of them helped her while she pushed by pressing her on the top
side of her tummy, just below her ribcage and pressing down.
(It is
common cause that the nurses were applying fundal pressure to assist
her on this basis.)
[82]
She
had been told to push to deliver the baby and did so on the
instructions of the nurses and for a long while to no effect. When
it
became apparent that the baby was not being delivered (she was
informed that it was not going through the birth canal but had

crowned, its head being visible to the nurse attending to her from
that end) that nurse performed an episiotomy on her vagina and
it was
then that the other one started pushing on her abdomen to force the
baby out. This pushing was continuous and hard, lasting
for
approximately five minutes at a time with intervals of approximately
five minutes in-between during which time she was made
to breathe and
rest.
[42]
The procedure was
repeated thrice and on the third occasion the child was delivered
vaginally. She mentioned that there were two
occasions when she
pushed upon feeling the urge to do so when she was purportedly not
supposed to, as a result of which they admonished
her by slapping her
once on her abdomen and on another occasion on her thigh.
[83]
Under cross examination she explained why
her recall of how long the nurses had pushed on her abdomen for each
time was so clear
to her still.  She explained that this is
because they discussed among themselves before they began that they
would embark
on this five minutes on, five minutes off, pushing on
her abdomen.
[84]
The baby did not move or cry when he was
born and was placed on her abdomen.  A doctor was called, and he
attempted to resuscitate
him by hitting him on his hand, but he did
not respond and was removed to the neonatal intensive care unit where
he remained for
a period of more than two weeks.
[85]
She had not been given any medication for
pain during her ordeal from admission to the birth of the child. She
ate some food at13h00
and had also had water and a cooldrink during
the day.
[86]
The evidence of the plaintiff was not
really challenged during her cross examination on both occasions that
she was called to give
evidence.  There is merit in Mr. Brown’s
submission on her behalf that since her evidence stands
uncontradicted it must
therefore be accepted as true.  He
asserted that any flaws or inconsistencies as there may be are not
material and may be
explained by the elapse of time and the fact that
she was suffering tremendous pain and therefore not concentrating on
remembering
every detail of her ordeal.  Her evidence is also
the only factual evidence before me.
[87]
I have already alluded above to the fact
that it is not clear from whom Dr Burgin obtained the brief history
recorded by him, and
that it does not appear that the plaintiff
herself furnished the relevant history to Dr Gericke.  In any
event the discrepancies
between those narratives and her oral
testimony are in my view not material to the important period under
contention.  Further
despite the discrepancies, such as they
are, I am not inclined to disbelieve her.  She did not appear to
me to be capable
of fancy imagination.  She related basic facts
and not the consequences.  Her explanations were almost turgid
and without
any passion.   She distinguished a doctor from
a nurse as someone wearing a necklace around his neck.  When she
was asked what the child looked like after he was born, she said he
looked just like a baby as one would expect, except he did not
cry.
She understood that there were issues with the baby after his
birth and that he was slow but was told to expect this
because he did
not cry at birth.  She didn’t question this.  Her
observations and descriptions of things happening
to her and around
her made sense logically (such as her descriptions of the labour
pains at the various stages, and the kinds of
discussions that were
had with the nursing staff), but these were not offered
spontaneously.  She answered what was asked.
As
bizarre as her testimony was about the application of the fundal
pressure, she clearly had no inkling even that
the pressing on her
tummy was of any significance in the whole scheme of things. The
thought that she could contrive something
so creative just does not
fit in with my assessment of her demeanour.  Likewise, her
testimony that she was told by a nurse
that she would give birth at
16h00 cannot be questioned.  I expect it is a detail that came
to mind when she was being interviewed
by Dr Njapa-Ndamkou, rather
than spontaneously. Again, she would not be capable of fantasying
about a prolonged second stage of
labour and the implications of that
for this trial.
[88]
In the main the critical moments and
events of the second stage labour are not seriously in contention
save for the plaintiff’s
unconfirmed intimation to Dr
Njapa-Ndamkou that she was informed at 13h00 that she would give
birth at 16h00, which assertion the
defendant submits constitutes
inadmissible hearsay evidence.   I have referred above to
Mr. Brown’s oversight in
covering this aspect when he recalled
the plaintiff.  I was not asked to admit it on the basis that it
is in the interests
of justice to do so.  I believe that the
plaintiff would have confirmed it had Mr. Brown brought it to her
attention and had
he not labored under the misimpression that he had
led her evidence in this respect. In the light of the defendant’s
submission
that she was prejudiced by Dr Njapa-Ndamkou’s
reference to it in his testimony I will for present purposes attach
no weight
to it.  Fortunately, there is other evidence that
supports the plaintiff in respect of the timing of her second stage
of labour
which I will shortly allude to.
[89]
The evidence of Dr. Njapa-Ndamkou can be
summarized as follows:
89.1
the failure to assess and monitor the condition of the plaintiff and
the child was substandard;
89.2
the rupturing of her membranes changed her risk profile on admission
to the hospital placing her in a higher
risk category necessitating
an assessment by a doctor and frequent and stringent monitoring of
the foetal condition by way of continuous
cardiotocograph (“CTG”)
monitoring;
89.3
the rupture of the membranes for a period of more than twelve hours
was prolonged and exposed the child to
the risk of injury, therefore
he should have been delivered by caesarean section if the labour
could not be expedited by other
means;
89.4
the period of labour especially in the active phase was prolonged as
the child should have been delivered
by 18h00 or 20h00 at the latest
if one extrapolated the normal expected rate of dilatation and the
duration of her first stage
of labour (this is the alternative
evidence regarding the timing of the second stage of labour);
89.5
that if foetal and maternal monitoring had been done, the need to
expedite the delivery of the baby would
have been identified and an
appropriate intervention such as the administration of oxytocin,
vacuum extraction, forceps delivery
or a caesarean section could have
been performed.
89.6
that the early rupture of the membranes exposed the child to hypoxia
and ischemia due to cord compression
and other birth complications as
the protective environment provided by the amniotic fluid was not
present for an extended period
of time;
89.7
that although the foetus is able to adjust or compensate for the
periods of hypoxia caused by the normal
contractions (called
autoregulation), its ability to recover from the intermittent
episodes of hypoxia was compromised by extended
exposure to such
hypoxia.
89.8
that such extended exposure to the intermittent hypoxia in
combination with the cord compression would lead
to a failure of the
autoregulation of blood distribution by the foetus leading to a
catastrophic acute profound hypoxic ischaemic
incident.
89.9
that in his view the application of fundal pressure in the manner
described by the plaintiff was incorrect,
compromised the child’s
wellbeing, may have contributed to a cord compression (or placental
abruption which in itself amounts
to a traumatic labour),
alternatively a narrowing of the ventricles in the foetal brain due
to excessive compression of the cranium
of the child (which
constriction causes a decrease in the delivery of oxygen resulting in
hypoxia and ischaemia)  during the
prolonged process of delivery
through the vaginal canal; and
89.10
that the nurses had failed in their duties to give proper care by:
89.10.1
failing to monitor the plaintiff and the child;
89.10.2
failing to call the doctor when they realized that the
labour was not
progressing adequately in order to assess the position;
89.10.3
their failure to properly assess if it was safe or appropriate
to
apply fundal pressure to deliver the baby; and
89.10.4
applying fundal pressure in the manner in which they did.
[90]
Dr Njapa-Ndamkou’s review was
practical in every respect and based on nothing more than the
plaintiff’s narrative to
him in relation to what is (or at
least was) to be expected from the nursing staff regarding the
management of the plaintiff’s
labour at the relevant time based
on the national guidelines.  His explanations were sensible and
physiologically plausible.
He referred to several “sentinel
events”, deferring to the terminology employed by Prof Buchmann
in his report,
(although at times semantically confusing this with
risk factors such as for example the early rupture of the plaintiff’s

membranes) that could have been causal to the acute hypoxia, namely a
ruptured placenta, traumatic injury (indicated by the need
for the
episiotomy and assistive fundal pressure) and an umbilical cord
accident (compression),the latter in his view being the
most
probable.  He had no hesitation in ascribing the injury to the
way the delivery was conducted by the nurses at the specific
point in
applying the fundal pressure.
[91]
In his opinion and based on the plaintiff’s
explanation of what she experienced at 16h00 he was confident that
she must have
been in active first stage labour at that stage.
That would mean that the delivery at 22h00 was delayed. If she had
been
properly assessed, then by 20h00 at the latest, she should have
been delivered by caesarean section.
[92]
He did not share Prof Buchmann’s view
that the plaintiff’s delivery was spontaneous because of the
episiotomy and fundal
pressure intervention that ensued. He was also
appalled at Prof Buchmann’s hypothesis that the substandard
care made no causal
difference to the child suffering the acute
profound brain injury and was concerned by the message conveyed by
such a statement.
[93]
As for the time within which a caesarian
section can be performed, he asserted that, in the case of an
emergency: “if the
theatre is empty and we have (the theatre),
the nurses, the drip is in, the anesthetist is in, … there is
no reason why
a caesarian section cannot be done in 30 minutes.”
In this instance there would have been more than enough time,
between
20h00 and 22h00 that night to assess whether the child should
rather have been delivered by caesarian section.
[94]
As for the damage causing event supposedly
being unforeseeable or the situation been low risk, he opined that
the lack of purposeful
monitoring would have converted a low risk
situation to a high-risk one.
[95]
Asked under cross examination to reconcile
his hypothesis of an inappropriate application of fundal pressure
with prof Buchmann’s
theory of an unremitting clamping of a
compressed cord to coincide with an acute profound rather than a
partial prolonged event,
he reasoned that if one continuously causes
pressure, the temporary recovery of the clamping releasing effort by
way of autoregulation
(when the mother’s contractions subside
and the pressure itself ceases) will become less effective until
eventually it no
longer happens.
[96]
He agreed that it would be normal for a
mother to feel tired in the process of delivery but asserted that the
application of fundal
pressure because of its mechanism and natural
physiological impact to a body (adding an extra work load on to her
contractions)
would make her more tired, which fitted in with what
the plaintiff had related to him of her own experience.
[97]
He
confirmed that there is literature to support his theory that
pressure on the blood vessels in the child’s head could lead
to
hypoxia, but it is common cause that this was not referenced during
his cross examination. This he explained was because he
verily
believed that such an outcome accords with the laws of natural
physiology. Confronted by a medical review article by Kent
D
Heyborne
[43]
which in the
defendant’s view puts paid to his hypothesis in this respect
and which promotes a contrary conclusion that the
foetal brain is
well protected from extracranial forces that occur during labour, he
pointed out that (a) there are articles that
say a different thing
and (b) that the reservation is expressed that this would be so only
“in the absence of foetal hypoxia,”
which in this case is
not the position.
[44]
[98]
He eschewed an approach of isolating out a
single event reminding the defendant that there were several factors
at play in the present
instance and that one had to look at the
cumulative effect of all the risk factors to determine what might
have contributed the
acute event.  As for bringing this all
under the mantle of an acute profound event he explained how each
compromise would
have made it difficult for the autoregulation to
continue although he agreed that if one continuously puts pressure on
the cord
at the specific time of delivery this (as an act on its own)
will cause hypoxia (of the acute profound kind).
[99]
Dr
Njapa-Ndamkou was happy to agree that the use of electronic foetal
monitoring (“EFM”) has its own shortcomings. He
was also
prepared to agree with the proposition set forth in the second
edition of Neonatal Encephalopathy and Neurological Outcome
[45]
which suggests that the use of continuous electronic foetal
monitoring was not associated with a significantly lower rate of
cerebral
palsy or neonatal mortality. He was however firm that CTG’s
should not be discarded as a tool in the management of labour

patients.  To the contrary they play a vital role in detecting
pathological heart rates.  He also agreed with the statement
in
AGOG that there is no evidence to support the ability of
practitioners to predict neonatal neurological injury, cerebral palsy

or still birth using electronic foetal monitoring.
[46]
[100]
He accepted a 20-hour high water mark in
the latent phase of the first stage of labour before it becomes
prolonged, and 12 hours
for the active phase of the first stage. As
for the second stage there is no contention between the parties and
their experts that
this period, before labour becomes prolonged, is
two hours after full cervical dilatation.  However, he was
astute to emphasize
that one should always be guided by what the
monitoring dictates rather than holding the line that because the
World Health Organization
says you can wait for twenty hours, you do
so at the expense, for example, of CTGs showing decelerations within
that time period.
[101]
He explained that the use of sedation in
labour could assist to relax the mother’s uterus which is what
one would strive towards,
otherwise hypertonic contractions might
overstimulate the uterus and cause the foetal heart rate to drop.
[102]
He confidently asserted, despite whatever
medical literature might say regarding targets for performing an
emergency caesarian section
and having regard to his numerous years
of experience of performing such procedures, that a baby in trouble
can be delivered within
thirty minutes, from decision to incision. He
went so far as to suggest that articles which suggest the contrary
(as was sought
to be promoted by the defendant during the trial) are
a fallacy.
[103]
Although he did not advocate that fundal
pressure should never be used (it has its place for rare and strictly
indicated cases),
or that it wasn’t a technique open to nurses
to use at the time of the child’s birth, he was not comfortable
with the
proposition suggested to him that there were indications to
have used it in the present scenario or that it was appropriately
applied
as described by the plaintiff.  As for the mechanism of
the technique it is a gentle light pressure (not a fight with the
mother) and is to be applied synchronously with contractions. There
must in any event always be a prior assessment of its necessity

before embarking upon such an intervention and a close monitoring of
its efficacy. It is certainly not a routine procedure and
you would
not use it if there was a blockage in the birth canal. Another
contraindication would be a cord compression. (Co-incidentally
Prof
Buchmann suggested that one would use the technique to cause the
foetal head to pop up, whereas in this scenario the head
had crowned
already by the time the fundal pressure was commenced. The nurse at
the time had also suggested that the baby was not
passing through the
birth canal, although she could see its head, suggesting an awareness
of a blockage which is a contraindication
for the use of fundal
pressure.)
[104]
The plaintiff was recalled after Dr
Njapa-Ndamkou testified, so her explanation of the five minutes on
five minutes off application
of the fundal pressure was not put to
him to theorize.  However, it is abundantly plain from her
testimony in this respect
(which this court accepts for the reasons
indicated above) that this pressure was not applied synchronously
with her contractions.
To the contrary, the plaintiff was
admonished according to her testimony by being slapped on her abdomen
and thigh for pushing
when she felt the urge to do so.  There
was also no prior assessment of her or the child’s wellbeing
before the nurses
embarked upon the maneuver, the nurses simply
discussing among themselves what action would be taken.  A
doctor was not called
until after the fact.  The plaintiff
clarified that by the time the episiotomy was cut, the nursing sister
had said that the
child’s head was visible to her while she was
pushing.  It follows from this that the head had crowned (the
moment of
“initial success” in the delivery as Prof
Buchmann referred to this concept in his evidence) and that the
application
of the fundal pressure followed after a recognition on
the part of the nurses of a failure to deliver.
[105]
Far from trying to find a natural causal
connection between events during the plaintiff’s labour and the
unfortunate outcome,
Prof Buchmann in his testimony sought to justify
the plaintiff’s narrative of what happened during her labour
within the
narrow parameters of the scientific explanation for the
features an acute profound hypoxic injury.  It was evident even
from
the cross examination directed at Dr Njapa-Ndamkou before his
testimony commenced that it was going to be an all or nothing
situation
with him.  If the doctor could not justify a causal
possibility within this framework, he rejected it.
[106]
He conceded that the monitoring of the
plaintiff and the child was substandard yet opined that because of
the nature of an acute
profound injury and its defining features, the
inadequate monitoring could not have been a causative factor or did
not play any
role in the events leading to the injury which the baby
suffered.  In his view the nursing staff who attended to the
plaintiff,
despite having acted negligently in the way they carried
out the management of her labour, would not have been able to prevent
the injury, again by reason of the unique features of an acute
profound event.  As for the application of fundal pressure,
he
spent much time extolling its value in the context of labour
management as being accessory to normal delivery.  Although
Dr
Njapa-Ndamkou had never sought to suggest in his testimony that the
maneuver was prohibited in clinical practice in South Africa
(he
merely reviewed whether in the plaintiff’s situation its
application was problematic), Prof Buchmann unequivocally endorsed

its use.  He asserted that in his experience it is used
routinely in the delivery of babies by doctors and midwives (even

though its current day use is evidently not encouraged) and that this
certainly was the case at the time of the child’s birth.

As for its mechanism, according to him, fundal pressure by its very
nature has to be hard to be effective. Despite this belief,
according
to him there is no evidence in the available literature to support
the opinion by Dr Njapa-Ndamkou that fundal pressure
is not safe and
can cause brain damage (even if applied incorrectly or
inappropriately).  He was at great pains to discount
the absence
of any data that this was the case and again referred to literature
underpinning his disavowal that its use could in
any way have been
causal to the injury.
[107]
He refuted the notion of a prolonged labour
and, based on the plaintiff’s narrative, thought that the
description of her pain
fitted in with a transition into the second
stage at 21h00 when she started to scream, and from the latent to the
active phase
of the first stage of labour at 16h00. On this reasoning
he can’t be faulted in my view for suggesting that the second
stage
could not have been prolonged, but of course there was no
monitoring of the situation from 13h00 until the vaginal examination
undertaken closer to the birth so it is unclear what caused the
plaintiff to scream or at what stage of her labour she really was
at
that point.  I emphasize though that the head crowned very soon
after 21h00 as this development was noted by the nursing
staff before
the episiotomy was cut which renders it highly unlike that second
stage labour only commenced at 21h00.  (Dr
Njapa-Ndamkou’s
assessment of it having commenced at the 18h00 is more plausible
having regard to the known rate of dilatation
of a primigravida
calculated from when the plaintiff’s membranes were ruptured.)
[108]
Prof Buchmann was not in agreement that
there was any indication for a caesarian section, not even with
hindsight, but this is based
on the anticipated lengths of the
plaintiff’s labour.  He conceded though that there was an
obvious absence of any information
on the foetal wellbeing to support
that it was ever indicated. Despite his reliance on several articles
which look at mean intervals
of 48 minutes to perform a caesarian
section in urgent cases (only 15.7 % being within 30 minutes), it
appears that he overlooked
the statement made in his initial report
of a caesarian section being possible within 20-30 minutes.
[109]
With regard to his understanding of how the
child’s injury had occurred he placed his absolute confidence
in the “objective
fact” of Dr Pretorius’ report. He
explained why the scan report is reliable and conclusive:
“
So
that is very useful information and without that one could not have
an understanding at all of what happened in this case.
Mr
Du Bruyn
: Would that be a good indication, the scan and the
report of what happened? ---
Witness
:
The MRI scan has made it possible in the last 30 years to have a very
good understanding of what happens, because there is nothing
else
that gives that picture on an MRI scan of a child showing those
changes in the deep grey matter and in those specific parts
of the
cerebral cortex.”
[47]
[110]
He was adamant that the plaintiff’s
description of how the fundal pressure had been applied, at equal
intervals with gaps
in-between so to speak, to allow for
autoregulation, was entirely at odds with the mechanism and typical
features of an acute profound
event.
[111]
He stressed that the “available
information” concerning the plaintiff, in the absence of the
placenta having been microscopically
tested, does not allow accurate
identification of what sentinel event occurred
in
casu
- not that he believed it was even
necessary to know the cause for a sentinel event to occur,  yet
reasoned that an umbilical
cord accident (compression) was the most
probable, because, and this explanation appears to be a
self-defeating one in my view,
the other causes “are usually
clinically apparent and would have been reported in at least some of
the documents (there are
of course none) or court evidence.  To
the contrary Dr Njapa-Ndamkou mentioned the possibility of a
placental abruption or
a traumatic delivery apart from a cord
compression as being possibly causal, neither of which possibilities
Prof Buchmann gave
the impression he wished to engage with.  (As
an aside the likelihood of a uterine rupture was explicitly ruled out
by both
experts)
[112]
Prof Buchman appeared to skirt around the
bizarre details of the application of fundal pressure as constituting
a cause for the
injury or contributing to the final acute profound
injury although he accepted ultimately (begrudgingly so) that the way
the plaintiff
says it was done was totally inappropriate. Still he
remained resolute that nothing done by the staff could have caused
an
acute profound event
or that the fundal
pressure could have any relation to such catastrophic event. I refer
to an extract from his evidence (in two
separate places in the
transcript) which demonstrate his insistence in bringing the emphasis
back to the acute profound picture
with its so-called typical
features:
“
(
Mr.
De Bruyn and the witness)
:  In
your opinion, Professor, from what you’ve heard with heart,
fundal pressure and the other evidence, what is your
opinion?
Could fundal pressure in this matter have any relation to an acute
profound event? --- No, M'Lady.
For
fundal pressure to cause an acute profound, how long would you need
that pressure continuously or intermittent or what?
What is the
position? --- Acute profound asphyxia as described in the literature
and as supported in the MRI report we have requires
at least 10
minutes of continuous cut-off of blood supply to the brain, that we
call ischemia, and to do that with fundal pressure
you have to
provide enough pressure on the uterus to cut off blood supply to the
foetal brain.  I cannot imagine how one would
do that.  You
would have to push from all sides with incredible pressure
continuously for 10 minutes.  It's something
I've never seen and
something I don’t think I would be able to do if I was alone.
I cannot imagine that that could
happen.
[48]
…….
MR.
DE BRUYN
Now
in this case what we've heard let's accept the 5 minutes and then 5
minutes rest, 5 minutes, 5 minutes rest.  On what you’ve

said could that have caused acute profound? --- No, M'Lady,
that's
not how acute profound works
.
It's a continuous unremitting cut off of blood supply to the brain
which shocks the brain immediately so that the central
metabolically
active areas get damaged first and that's what is seen on the MRI.
[49]
(Emphasis added)
[113]
Still under cross examination by Mr. Brown
he remained unyielding in this respect:
“
Yes
and you agree doctor that if there was any indication, even in those
30 minutes that this baby was suffering any form of distress,
there
would have been an opportunity to then intervene? ---
I
need to take the Court back to this being an acute profound
event
.
[50]
”
[114]
Far from being amenable to any other causes
(than a cord compression) possibly even coming within the meaning of
a “sentinel
event”, his reply to Mr. Brown under cross
examination demonstrates his biased approach of fundal pressure not
conducing
to cerebral palsy:
“
But
let’s now look at our case.  What in your opinion was the
reason for fundal pressure to be applied to (Ms. Mpetsheni)?

--- I do not know.  I’ve given the possible reasons.
Poor advancement of the head and/or concern about the foetal
heart
rate.
Yes, what about the
maternal exhaustion? --- That is one of those that is related to poor
advancement of the head.  The woman
is simply too tired to push
that baby over the last and then there is an attempt to correct that
or to help her by pushing the
whole uterus down and succeeding with
fundal pressure.
Now according to your
evidence here maternal exhaustion, the poor effort was one of the
criteria for application of fundal pressure
in this study? --- That’s
correct.
So then why did you try
to exclude Luyanda from this group who ended up in the ICU?  He
fits the (profile), (his) case would
fit those criteria. --- The
children in the Egyptian study had low Apgar scores for whatever
reason.  There is no evidence,
in fact it is pseudoscience or
incorrect to attribute any outcomes of the babies to the fundal
pressure procedure because where
fundal pressure was chosen those
babies were systematically different from where fundal pressure was
not done.  They had,
in thirty percent of labours, foetal
distress before.  You are going to have an expected low apgar
score rate, higher in that
higher in that group because there was
foetal distress, expect found in thirty percent, 29%.  This is a
classic case of an
observational study where causation cannot be
inferred, only association.  That is why we do randomised
control trials as
the one, the two from Turkey that we have
presented.
Well
doctor I’m going to argue the exact opposite.  I’m
going to argue that Luyanda’s case fits the criteria
in this
study and I’m going to argue that you are attempting to exclude
Luyanda from those criteria because it does not fit
the defendant’s
case. --- I said that Luyanda would have had a (sentinel event) event
which started in the last half hour
before delivery.  I have
said that fundal pressure could not have interfered with blood flow
to the brain, from the placenta
through the cord as a result of that
because (the plaintiff) would have had to have fundal pressure
continuously applied for ten
to fifteen minutes to cause that
sentinel event with the complete cut off.  That is not what was
done in this study in any
way.  This study, ja so that is why I
exclude Luyanda.  Not because of this study in particular,
although the study tells
me that fundal pressure used in the way it
was used in Egypt showed no reports of hypoxic ischemic
encephalopathy, neonatal death
or baby’s brain injury.  So
that aside, Luyanda’s case is a special one.  (He) is an
individual.  I
don’t know what happened exactly there.
(He) had a sentinel event.  I remain saying that fundal pressure
cannot
explain sentinel  event because it would have had to be
applied continuously for ten to fifteen minutes in a way that would

have interrupted brain circulation and there are no case reports
anywhere of that having happened from the literature that I’ve

searched so I simply cannot describe an incident that has never
happened in the literature or that is not even plausible because
I
have to imagine how fundal pressure would interrupt the brain blood
flow.
[51]
[115]
In response to a question by the court
whether the added pressure of fundal pressure, assuming a cord
compression already in the
vaginal cavity where the head appeared
stuck, might not have been causal to the acute profound injury, he
reiterated two things:
one, the need for this scenario to be going on
for ten to fifteen to twenty minutes before delivery to qualify as it
were
as a sentinel event and, two, that there is just no data
on this.
[116]
He denied any high-risk factors in the
plaintiff’s case and expressed the view that the early morning
rupture of the plaintiff’s
membranes was a normal occurrence in
the labour process, with no risk occasioned to her or the child
per
se
thereby.
[117]
Prof Buchmann’s staunch reliance on
what the significant features of an acute profound injury are and how
it correlates with
neuroimaging which shows a more or less consistent
pattern of brain injury, appears to be indicated in three seminal
articles concerning
case studies of such a syndrome and a textbook on
the neurology of a neonate he referred the court to, rather than on
his own empirical
experience of cerebral palsy outcomes. His
unrelenting promotion of the defendant’s case that because the
scan shows an acute
profound pattern the injury was unforeseeable,
could not be prevented and was not caused by the acts or omissions of
the nurses
who attended to the birth of the child prompted Mr. Brown
to submit that Prof Buchmann did not give objective or unbiased
evidence.
I am inclined to agree with such a submission.
Not only was he inflexible, but extremely reluctant to make
concessions or
engage with any possibilities beyond what the
constraints of an acute profound typical scenario allow for. Where he
did make concessions,
these were mostly followed by a compulsion to
mitigate the impact thereof soon thereafter. Where he referred to
articles, it was
only to support single or separate aspects therein
that advanced the defendant’s case, ignoring valuable
information in them
that co-incidentally favoured the plaintiff’s
case.
[118]
This
is not the hallmark of an expert witness whose function is to assist
and guide the court in respect of matters where certain
expertise is
called for.  In Twine & Another v Naidoo and Others
[52]
the court restated the principles applicable in evaluating expert
testify. Among the obvious that a court is not obliged to accept
the
evidence of an expert unless it is based on opinions properly brought
forward and on foundations justifying such conclusions
is the
admonishment that:
“
Expert
witnesses who repeatedly provide expert opinions to parties- and
sometimes only for plaintiffs or defendants should be careful
not to
burden the court with what some justices of the U. S. Supreme Court
called “
expertise that is fausse
and science that is junky
.”
Evidence which is repeated from case to case or an opinion that
is mildly altered from case to case is in danger
of falling foul of
this principle. The court should scrutinize these opinions very
carefully and should not hesitate in refusing
them admission nor
should they be swayed by the impressive scientific qualification of
the experts for these are irrelevant…”
[119]
This caution commends itself to me, given
the flourish with which the defendant pursued her defence on the
issue of causation hot
on the heels of the Department of Health’s
success in the Magqeya matter in which Prof Buchmann was also
involved, pushing
the same line regardless of the staff’s
substandard care and injudicious use of fundal pressure on the
apparent basis that
because this is an acute profound picture, its
game over and simply bad luck for the plaintiff.
[120]
It is misleading to suggest that the
parties are “
ad idem
that the cause of the damage was an acute profound (sentinel) hypoxic
ischaemic event that happened intrapartum without warning.”

The defendant has put her own spin on this and paraphrased the
parties’ agreement that is recorded in Exhibit “C”.

Although the plaintiff (a) conceded the report of Dr Pretorius and
his views of what the images represent or depict, and (b), accepted

(apparent from concessions made by Dr Ndjapa-Ndamkou without
hesitation during cross examination) what the typical features are
of
a sentinel event and how this would conduce to an acute profound
injury, he had his own views and explanation for what happened
in
casu
.
[121]
Regarding that theory, Professor Buchmann
reluctantly concurred with him on the mechanism or manner in which
hypoxia develops and
can lead to an acute profound hypoxic ischaemic
encephalopathy, more particularly how, after a time, the auto
regulation system
of the foetus will fail if exposed to prolonged
periods of intermittent hypoxia. Prof Buchmann also conceded, again
very grudgingly,
that such prolonged and repeated incidents of
intermittent hypoxia superimposed as it were by a sentinel event
would not invariably
manifest or show on MRI scans as partial
prolonged hypoxic ischaemic injuries, thus in my view still leaving a
mixed injury open
as a possibility. In the light of the lack of
certainty that a partial prolonged injury would leave a separate
footprint where
acute near total asphyxia superimposes itself and
presents a picture of the all-encompassing brain damage, I find Dr
Njapa-Ndamkou’s
assessment of what caused the injury to be
entirely plausible and probable in all the circumstances. It was
accepted between the
experts that an umbilical cord compression
probably occurred in the last 30 minutes before delivery and caused
the acute profound
hypoxic events resulting in the cerebral palsy
although Dr Njapa-Ndamkou reckoned that this event, albeit it
occurred right at
the end, could not be viewed in isolation and
certainly had a natural association with the acts and omissions on
the part of the
hospital staff .
[122]
It
is so that unless the placenta has been tested microscopically, the
cause of the sentinel event will be unknown, but in this
respect, it
is not scientific certainty that is the standard of proof in civil
actions.
[53]
Each of the risk
factors highlighted by Dr Njapa-Ndamkou in a cascading manner point
to a causal connection between the inappropriate
management of the
plaintiff’s labour, including (more especially) the injudicious
and untimely application of the fundal
pressure in a situation where
the child was already in a compromised position, and the superimposed
acute profound hypoxic result.
[123]
The civil onus rests on the plaintiff to
satisfy the court that her version is more probable and consists of
credible evidence as
compared to that of the defendant. The
conclusion preferred should be the more natural or plausible from
several conceivable ones,
even though that conclusion may not be the
only reasonable one.
[124]
I am satisfied that the plaintiff has
established the issue of causation on a balance of probabilities.
[125]
The
element of negligence was never really in issue, the defendant
conceding that the management of the plaintiff was substandard
and
contrary to the guidelines of the national Department of Health in
the several respects highlighted in the evidence.
The defendant
also conceded, quite perplexingly, that there is a skills disparity
in staff employed at rural hospitals, such as
Madwaleni Hospital is,
in relation to the city.  Examples of substandard management
would relate to the staff’s
failure to assess and monitor the
plaintiff and the child’s wellbeing at the critically required
stages of her labour, (especially
the child’s foetal heart
rate) with the simple tools at their disposal -vaginal examinations,
blood pressure monitors, CTG’s
Doptone/Pienaar stethoscope or
other electronic foetal heart rate equipment which the defendant did
not gainsay exists at the hospital,
thereby missing important cues
and “red flags” regarding the plaintiff’s progress;
the staff’s failure
to plot and track the progress of the
deliver (it is evident from the plaintiff’s evidence that the
nurses made reference
to her “file” to proclaim that
labour was either imminent or not so these tools were plainly there
for their use);
their failure to have performed a caesarian section
in any event (or to have offered her this as an alternative)
[54]
once the first stage of labour had dragged on (calculated from when
her water broke early morning)
[55]
or once it became apparent in the second stage of her labour that her
bearing down efforts had not produced a result within 45

minutes,
[56]
their
inappropriate, indiscriminate and untimely application of the fundal
pressure to the plaintiff’s abdomen after the head
had crowned
and was causing a blockage at the vaginal opening,
[57]
and (finally) their failure to assess and diagnose the plaintiff’s
relative cephalopelvic disproportion by the fact that
the head was
stuck in the birth canal and had not progressed within the timeframe
it ought to have and not taking appropriate measures
there anent to
rectify the emergency and intervene appropriately (for example, by
administering oxytocin, changing her position,
intrauterine
resuscitation, vacuum extraction or forceps delivery, or ultimately
caesarian section).
[126]
It follows the plaintiff succeeds in
respect of the issue of liability. I set out above in some detail the
several disturbing features
concerning the way the defendant
conducted her litigation. As a mark of this court’s
displeasure, and as a curative measure,
I intend to award costs on
the higher scale of attorney and client.  I would have penalized
the defendant by depriving her
of her costs even if she were
successful in her defence.
[127]
There remains one final aspect to be dealt
with and that is the reserved costs of the proceedings on 13 December
2018.  The
matter was postponed until this date for argument
before me during the recess.  Mr. Brown could however not secure
a flight
in time from Johannesburg to East London and informed Mr. De
Bruyn of his predicament at 06h00 on the morning in question after

the latter had already travelled to East London from his chambers in
Port Elizabeth and had spent the evening here in paid accommodation.

Mr. de Bruyn accepted Mr. Brown’s
bona
fides
but still held out for a
de
bonis propriis
costs order against him.  I understood the basis to be that if
the judgment did not go in the plaintiff’s favour this
would
mean that Mr. Be Bruyn’s travelling and accommodation costs
would not ultimately be recovered. I am not inclined to
grant such an
order and certainly not for such a reason. The tender by the
plaintiff of the defendant’s party and party costs
in this
respect (including special costs) are in my view adequate recompense
for the unfortunate absence of Mr. Brown due to no
fault of his own.
If I recall correctly, SAA might even have been bumped him off his
flight that morning which had been booked
in time. Certainly, no
disrespect was intended, at least not on his part.
[128]
I issue the following order:
1.
I find in favour of the plaintiff on the
issue of liability;
2.
The defendant is liable to the plaintiff
for the damages found proven in due course;
3.
The plaintiff is entitled to her costs of
the separated trial, such costs to be on the higher scale of attorney
and client, and
to include the costs of second counsel where
employed;
4.
The plaintiff is directed to pay the wasted
costs occasioned by the postponement on 13 December 2018 on the
ordinary scale of party
and party. The wasted costs will include but
not be limited to the travelling and reasonable accommodation costs
incurred by the
defendant’s counsel in travelling to (and
overnighting in) East London at the request of the court to submit
closing arguments
on the arranged date of 13 December 2018. The
wasted costs in this respect shall include the costs of second
counsel, if applicable.
_________________
B   HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
:
22 - 24
May, 3 - 7 and 19 December 2018
DATE
OF JUDGMENT:     15 March 2019
Appearances:
For
the plaintiff: Advocates D Brown and T Mduba instructed by Dudula
Inc. care of Dandala Attorney, King William’s Town (ref.

Messrs. Y Dudula/ M Lindwa).
For
the defendant: Advocates PJ De Bruyn S.C. and ND Ngadlela instructed
by The State Attorney, East London (ref. Mr. Mgujulwa).
[1]
A
special plea that the Plaintiff’s claim in her personal
capacity had prescribed was abandoned at the trial.
[2]
The
plaintiff’s case is that this period commenced at about 16h00
on the day in question. The second stage of labour commences
after
the cervix is dilated to 10cm and continues until deliver.
[3]
Whilst
Mr. Brown was leading the plaintiff and eliciting the necessary
evidence to deal with the issue of the child’s cerebral
palsy,
which is denied on the pleadings, Mr. De Bruyn rose to place on
record that the defendant does not deny that the child
has cerebral
palsy or that he suffered a hypoxic ischemic event intrapartum. This
led to an abrupt conclusion of the plaintiff’s
evidence in
chief.
[4]
This
is the acronym for Hypoxic ischemic encephalopathy and refers to a
brain injury caused by lack of oxygen (hypoxia) and/or
a lack of
blood flow (ischaemia) in the brain.
[5]
At
the very least a Delivery Register exists in which the essential
fact that there was a normal vertex delivery must appear as
well as
the other facts reported by the Area Manager in her letter to the
hospital’s CEO. Why it was ultimately not discovered
boggles
the mind.  Although the single midwife is named, it is not
apparent that she (neither any of the other staff members
on duty at
the time) assisted in any kind of reconstruction of the maternity
unit’s records.   I imagine that
it would have been
useful to consult the paediatric unit head as well in order to glean
if the file might not have been transferred
with the child for
treatment of his HIE, but that objective seems not to have been
considered or pursued on behalf of the defendant.
Little
imagination appears to have gone into the pursuit of the elusive
records and those involved, and responsible, seem to
have been let
off the hook way too easily.
[6]
Dr Gericke, specialist paediatrician, whose report was accepted into
evidence by consent, commented on this discrepant score
of 7/10
relayed by Mrs. Dangazele asking: “Was this a subsequent
alteration of the original record on (the child’s)
Road to
Health Chart?”  In my view this concern was validly
expressed as the import of the Delivery register’s
contents as
conveyed by Mrs. Dangazele is of an uncomplicated birth with no
sequela.
[7]
In
giving reasons for dismissing the defendant’s request for a
postponement of the trial I expressed the view that the affidavit

filed in support of the application did a dismal job of trying to
justify the need for a postponement (based on the absence of
the
medical records) or to explain convincingly what steps had or would
be taken to try and find them.  I also criticised
the
hospital’s responsible custodians of these records for their
failure to confirm their involvement in trying to locate
them or
expressing their support that an extension would be of any benefit
in the circumstances. The lacklustre attempt at addressing
this
conundrum more than any other was however probably due to the fact
that the real reason behind the application was that the defendant’s

preferred lead counsel was not available on the allocated date of
hearing and this put her in a jam.
[8]
It
emerged from Mr. Mgujulwa’s affidavit filed in the
postponement application, in a bid by the defendant to justify that

he had been unable to meaningfully engage with his experts in the
absence of medical records, that although Dr Kara had assessed
the
child on 25 June 2015, he was writing to the State attorney on 17
May 2018 only, days before the trial was due to commence,
to report
that he “could not proceed with a report as there were no
medical records.” One looks in vain in the case
management
papers for any indication that the defendant’s attorneys
communicated with the plaintiff’s representatives
to explain
what the problems were with the filing of any of their anticipated
expert reports.
[9]
The
summary of his opinions was served on the defendant’s
attorneys on 12 July 2017.  His report is dated a day earlier.
[10]
The
concession by the defendant that this report could go in as evidence
was only made on the second day of trial.
[11]
I
could not find the notice in terms of Rule 36 (9) (a) in respect of
Dr Pretorius in the court file, but the first indication
of his MRI
report or reference thereto appears from the parties’ minute
of their pre-trial conference held on 26 August
2016. The minute
records in par 1.1 thereof that the plaintiff has provided the
defendant with a notice in terms of Rule 36(9)(a)
and (b) of Dr
Pretorius a radiologist, an expert she intended to call at the
trial.  This may explain why when Prof Buchmann
penned his
first report dated 11 May 2016 there is no reference to Dr
Pretorius’ original findings at all.  It was
however
never explained by counsel how the report, dated in 2014 already,
come to light.  The fact that it is addressed
to the medical
officer is perhaps an indication that it was ordered in a hospital
context (perhaps because in 2014 the child
was having seizures), but
it does postdate the issue of the action.  Nothing turns on my
musings I suppose since the plaintiff
put the weight of her case
behind his findings and gave early notice to the defendant of her
intention in this regard. It was
of course open to the defendant,
immediately she did so, to seek whatever amplification or
clarification thereof as was necessary
in the circumstances, a
consideration that ostensibly only occurred to the defendant on the
third day of trial.
[12]
The
parties agreed on 3 December 2018 that Dr Pretorius’ original
report dated 1 July 2014, and an addendum thereto (dated
31 May
2018), which records his conclusion that a magnetic resonance image
(MRI) taken of the child’s brain is consistent
with an acute
profound hypoxic ischemic event that occurred intrapartum, could go
in as evidence.
[13]
This
comment ostensibly influenced Dr Burgin to conclude in his very
terse report dated 6 November 2014 that “(o)ne must
assume
that a period of anoxia occurred” which “gave rise to
the brain damage, resulting in CEREBRAL PALSY.”
[14]
This
observation turned out to be quite a portent in the present
instance.
[15]
I
had noted in my reasons for refusing the postponement the immense
prejudice to the plaintiff and the child by granting the defendant

the indulgence sought by her to look for records, employ experts out
of time and to enable her to retain the counsel of her choice.

I further remarked that I would be failing in my duty both to look
out for the best interests of the child and to promote the

effective, efficient and speedy finalisation of the matter if I were
I to grant the postponement.  Although the plaintiff
aligned
herself with the present continuance sought, the defendant was in my
view being opportunistic and creating a space to
do and consider
what she ought to have much earlier during the pretrial processes.
[16]
The
plaintiff could and should have been more vociferous about the
prejudice caused to her by the defendant’s last-minute

employment of an expert.
[17]
Rule 36(9) provides that:
“
No
person shall, save with the leave of the court or the consent of all
parties to the suit, be entitled to call as a witness
any person to
give evidence as an expert upon any matter upon which the evidence
of expert witnesses may be received unless he
shall-   (a)
not less than fifteen days before the hearing, have delivered notice
of his intention so to do; and (b)
not less than ten days before the
trial, have delivered a summary of such expert's opinion and his
reasons therefor.”
[18]
This
subparagraph is of relevance in the context of the defendant seeking
clarification of Dr Pretorius’ original findings
to
distinguish the nature of the injury and to say when it might have
been occasioned.
[19]
If
the defendant had timeously filed Prof Buchmann’s summary,
this would have invited a discussion of the cause of the injury
in
relation to the MRI findings specifically by relevant experts. These
provisions must also be read in conjunction with paragraph
1 of the
JROP which deals with pretrial conferences. These are ongoing in
nature and require the parties to record and reflect
upon matters on
which agreement has been reached, but also the requests of one party
and the replies of the other relating to
matters where there is no
agreement. The plaintiff was entitled to assume by the time the
trial started that the reports put
up her in respect of the merits
would not be met with any challenge. Indeed, even after the late
summaries of the opposing experts
were filed there was still no
engagement between the parties regarding what was common cause and
what was contentious between
the experts. Mr de Bruyn instead
recorded that he was not inclined to encourage the experts to confer
and by necessary implication
did not consider the defendant bound to
explore ways in which to curtail the duration of the trial.
[20]
The
Directive accords with the model for case management proposed
nationally by the Office of the Chief Justice. It is termed
a
“draft” because it was implemented on a pilot basis and
is yet to be formally incorporated in the Uniform Rules
of Court.
[21]
This
is the date upon which the pilot case management project was
launched in these two courts.
[22]
Due
to the peripatetic nature of this Division case management is dealt
with by judges at each centre on a roster system whereas
in other
divisions cases are allocated to single judges from their inception
to conclusion.
[23]
Cases
no 285 & 4/2014 delivered on 27 May 2014.
[24]
Paragraph
[20].
[25]
2018
(4) SA 366 (SCA).
[26]
Paragraph
[65].
[27]
Paragraph
[66].
[28]
Paragraph
[67].
[29]
This
was during the cross examination of Prof Buchmann at pages 318-9 of
the transcript.
[30]
Case
no 699/17
[2018] ZASCA 141
(1 October 2018).
[31]
I
stand under correction, but it appears that Prof Smith who testified
in that matter is a neonatal specialist.
[32]
Paragraph
[65].
[33]
Paragraphs
[20]-[21].
[34]
Mr.
de Bruyn referred me to Mtukhi v MEC of the Gauteng Provincial
Government (Case no 2013/27430, Ismail J, delivered on 16 November

2018) which he pointed out was a case different from the present
scenario because there the event was a mixed partial prolonged
and
acute profound or so the imaging in that matter depicted.  This
is somewhat ironic because, if the initial damage causing
event is
overtaken by a subsequent one over which no one has any control nor
which can be foreseen, why would it be okay for
the court  to
fix liability in that situation, but  in a situation where the
mixed pattern is not observed on the MRI
scan but only the
superimposed acute profound injury not? This approach of
overemphasizing the import of what the radiologist
sees, and the one
size fits all pseudoscience, as opposed to applying the ordinary
legal principles of negligence and causation
to the factual scenario
in each case, is to my mind artificial and dangerous.  Each
case has its own merits and can’t
be dispensed with on the
basis of a stark line between acute profound and partial prolonged.
Whilst the imaging is necessary
to prognosticate neurodevelopment
and to plan the child’s treatment, I for one would like to
know more in a medicolegal
context about the causes and how each of
the listed sentinel events play themselves out and result in the
hypoxia.  The
consistency is in the pattern of the injury and
while I understand that this can be attributed to what the brain
typically does
when there is a sudden disruption of substrate supply
as occurs in an acute severe asphyxia, based on the distribution of
injury
reflecting the hierarchy of metabolic needs that are unmet,
those footprints do not fill in the gaps about how the brain got to

that point.
[35]
There were some discrepancies between her testimony and what she
told Drs Gericke and Njapa-Ndamkou although, in her defence,
she
visited the clinic first then the outpatient division and then was
admitted to the labour ward.  These times are not
really of the
essence since the plaintiff changed the focus of the critical period
under consideration to the second stage of
her labour. I have also
expressed above my reservations regarding the circumstances under
which her instructions were taken by
various parties along the way,
some of whom would not necessarily have been sensitive to the effect
of discrepancies in a formal
forensic context.
[36]
She testified that at the clinic they examined her after her water
had already broken by testing the foetal heart rate with something

on her stomach.  This was before they told her that she was
near giving birth.  To Dr Njapa-Ndamkou she conveyed that
at
the clinic she was told that she must not even sit, she must
immediately go to the maternity ward.  She was not checked
at
the clinic.  Her foetal heart rate was tested in the ward with
an instrument on her stomach.  A vaginal examination
was also
done, and she was told that she would not give birth “now”.
This was at about 08h30.
[37]
This
fact was in serious contention. The assertion by her to Dr
Njapa-Ndamkou underpinned the hypotheses that from that point
the
baby would have been at risk because the plaintiff did not deliver
as was prognosticated by a nurse and was also one of the
bases upon
which it was claimed the labour was prolonged.  It is of
concern that she never mentioned it before but then
on an overall
assessment of her evidence and demeanour there were many times that
the significance of specific events simply
escaped her.  For
example, she related in her testimony that she only found out that
the child was developmentally compromised
at nine months when her
mother suggested she take him to the hospital because he wasn’t
crawling or sitting by himself
as he ought to do at that age,
whereas the Road to Health Chart reflected an early diagnosis of HIE
Grade II in an entry made
at the time of her and the child’s
discharge from the hospital after his birth. Comments on this
condition are also noted
on the chart at regular follow up visits
suggesting that she should have known better.
[38]
She also testified that the night staff palpated her at 20h30.
[39]
In her testimony in chief she said that she had given birth at
22h00.  This was also asserted in the particulars of claim.

However, when recalled, she said that the birth took place at about
23h00.  In my view she was clearly mistaken and in no
fit state
to testify having come to court from her sick bed.
[40]
When
she was recalled to testify, she clarified that two drips had been
put up, one on each arm.
[41]
This
timing is not clear.  If she gave birth at 22h00, but one
factors in the time allowed for the fundal pressure on her
version,
the nurse couldn’t have been absent for as long.  She
also doesn’t say what happened in this interregnum.

Contrariwise it seems that when she pushed on her own, before
assistance was lent, the nurses were present.
[42]
Something
might have been missed in translation regarding the measure of force
applied, but certainly from the manner in which
the court
interpreter conveyed what the plaintiff was seeking to demonstrate,
about the fundal pressure being applied, it was
hard or with force.
[43]
A
Systematic Review of Intrapartum Fetal Head Compression: What is the
Impact on the Fetal Brain? Published in Thieme Open Access
medical
review journal (March 20, 2017). The conclusion in this review
article states that: “A review of the literature
indicates
that fetal intercranial pressure is well protected from extracranial
forces. Available data do not support intrapartum
fetal extracranial
pressure as a cause of fetal brain injury.”
[44]
The
last paragraph of this article notes that: “Although (head
compression as a cause of brain injury) has become a popular
legal
theory, there remains no scientific basis for the notion that
cerebral ischemia caused by the pressures of labor
and
in the absence of fetal hypoxia
,
is a cause of cerebral palsy.” The emphasis is what Dr
Njapa-Ndamkou latched on to.
[45]
The
American College of Obstetricians and Gynaecologists (“AGOG”)
at page 10 Exhibit E.
[46]
Page
13 Exhibit E
[47]
Pages
232-3 of the transcript.
[48]
Pages
256-7 of the transcript.
[49]
Pages
257-8 of the transcript.
[50]
Page
303 of the transcript.
[51]
Pages
369-371 of the transcript.
[52]
[2018]
1 All SA 297
(GJ) at par [18].
[53]
MEC
for Heath, Eastern Cape v Evelyn Klaas, Bhisho Case no 25/2018,
delivered on 20 November 2018.  See para [37].
[54]
Prof
Buchmann conceded this as a reasonable proposition and quite plainly
had this caution galvanised the staff into action the
child would
have been safely delivered and spared the difficult delivery that
ensued as well as the unfortunate outcome.
[55]
Prof
Buchmann concede that 1 cm per hour is the minimum rate of
dilatation (or at least was at the time of the child’s birth)

before being concerned
[56]
Prof
Buchmann accepted this as a reasonable proposition too based on the
plaintiff’s evidence that she had pushed by her
own efforts,
the baby had not made its exit  whereupon there was this resort
to an episiotomy and the fundal pressure, both
measure undertaken
indicative of a recognition on the part of the nurses that there was
a problem getting the baby out some while
after the commencement of
second stage labour (even on his assessment of this stage only
commencing at 21h00 when the plaintiff
screamed).
[57]
Prof
Buchmann conceded that fundal pressure applied as the plaintiff
described in her testimony would conduce to a negative outcome.