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[2019] ZAECMHC 19
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Ndisane v MEC,Department of Health Eastern Cape Province (789/2016) [2019] ZAECMHC 19 (5 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :MTHATHA
CASE NO. 789/2016
In
the matter between:
nolubabalo
ndisane
Plaintiff
and
mec,
department of health
eastern
cape province
defendant
judgment
griffiths
j:
[1]
The plaintiff in this matter has claimed damages on behalf of her
minor child, Simamkele,
from the defendant arising from the alleged
negligent treatment she received during the course of her confinement
and the birth
of Simamkele at St. Patrick's Hospital.
[2]
At the outset of the matter, and on the application of Mr. Rowan who
appeared for
the plaintiff, the issues of liability and quantum were
separated in terms of rule 33(4) and the court was called upon to
deal
solely with the question of liability.
[3]
It appears from the pleadings, as confirmed by counsel, that the only
issue on the
question of liability was as to whether or not the
cerebral palsy which afflicts Simamkele was caused by the negligent
treatment
of the plaintiff during the course of her labour after she
was admitted to the hospital in full labour at 11H00 on 14 September
2009, it being common cause that she was so admitted and that
Simamkele was delivered by caesarean section at 15H10 on the same
day. It was also common cause that the medical staff who treated the
plaintiff and Simamkele were employed by the defendant and
were
acting within the course and scope of such employment in this regard.
[4]
The plaintiff's first witness was Dr. Kara, a qualified paediatrician
and neonatal
expert who has extensive experience in similar matters
and has testified in this regard on many previous occasions. Dr. Kara
had
occasion to examine Simamkele and to interview the plaintiff with
regard to her memory of what happened during the course of her
confinement. He was at pains to make it clear that his evidence
related to his area of expertise which was to determine, insofar
as
he could, the stage at which the damage to Simamkele's brain occurred
and the mechanism by which it occurred. After such examination
and
interview and on an examination of the medical records available to
him, including the maternity case record from the hospital,
he
concluded that the damage to the brain was caused by hypoxic ischemic
encephalopathy ("HIE") after excluding other
possible
causes as having been unlikely in the circumstances. He concluded
furthermore that it was most probable that the HIE occurred
during
the course of her labour, that being sometime after 06H00 when the
plaintiff, on her own version, went into labour and the
time of
delivery at approximately 15H00. This much, judging from the joint
minute which was also put up as an exhibit and signed
by both this
witness and the defendant’s expert in this regard, Prof.
Christensen, was agreed between them.
[5]
Dr. Kara went further to say that the indications were such that the
insult or injury
would have occurred to the brain of the foetus
during the latter stages of labour, that is, in all probability
during the period
of time whilst she was in the care of the
defendant's medical staff after having been admitted at 11AM. This
was so, so he testified,
for a number of reasons. Firstly, Simamkele
suffers from what is referred to as a mixed cerebral palsy being a
mixture of spastic
quadriplegic cerebral palsy and diskynetic
cerebral palsy. Had the cerebral palsy been solely of the spastic
quadriplegic variety,
there was a slightly less chance of it having
occurred later during labour. On the other hand, where the cerebral
palsy is of the
diskynetic type, studies have shown that it is 80%
more likely to have occurred later during labour. Secondly, the
radiological
report of Dr. Mnguni indicates that the damage to the
brain "
is in keeping with a partial prolonged hypoxic
encephalopathy in a term brain
". Whilst, in his view, there
are some indications that indeed there was an acute profound insult,
one would have expected,
if there had been such a partial prolonged
encephalopathy which commenced in the early stages of labour whilst
the plaintiff was
still at home or her way to hospital, that upon her
admission examination the foetal heart rate ("FHR") would
have reflected
as being abnormal. According to the hospital records,
the foetal heart rate at that stage was at that stage perfectly
normal. If
indeed it had been an acute profound insult, this is
always more probable than not to have occurred during the latter
stages of
labour when there are increased contractions and thus a
heightened likelihood of compromise or obstruction in the blood flow
and
oxygen to the brain of the foetus.
[6]
Under cross-examination it was put to him that, although the
plaintiff had indicated
to him that she had not had any form of
herbal or traditional medicine prior to her labour, such medicine
could have increased
the pace of the labour in that it would increase
the number of contractions. He was unable to comment on this as, in
his view,
such medicines generally are marketed on the basis that
they might increase the number of contractions but whether they
indeed
would have that result would depend entirely upon what the
ingredients of such medicine were, and that cannot be determined. He
did however concede that, because this was the plaintiff's first
experience of labour, the labour did advance far quicker than
expected. Once again, under cross-examination he was asked a number
of aspects which fell within the province of an obstetrician
and he
indicated that he did not feel comfortable in dealing therewith.
[7]
Dr. Hulley, an obstetrician and gynaecologist, testified that he had
examined the
medical records together with the opinion of Dr. Kara
and had also interviewed the plaintiff herself. His evidence was to
the effect
that when the plaintiff was admitted to the hospital at
approximately 11H00, the foetus presented with a normal foetal heart
rate
and all the other indicators as recorded in the medical notes,
particularly on the partogram, appeared to be normal. However, it
is
common cause that when the baby was born by caesarean section at
approximately 15H10 that very same afternoon, the baby was
compromised and suffered from HIE. Having examined the medical
documents, he was of the opinion that because of the fact that all
the indicators, such as foetal heart rate, lack of meconium,
spontaneous rupturing of the membranes etc. appeared to be normal
during the first two hours or so of her admission, the foetus must
have suffered from foetal distress during the course of the
last two
hours prior to his delivery by caesarean section. This foetal
distress clearly led to the HIE and the compromised baby
(as
reflected, inter alia, on the low Apgar scores) at birth.
[8]
In his opinion, there was a clear lack of proper monitoring of the
plaintiff during
the last few hours of labour and this is evidenced
by the medical records and in particular the partogram as contained
in the maternity
case record. A minimal amount of monitoring took
place during that period according to the partogram and that which
did take place
prior to the vital period of time when the baby
clearly became compromised. This must be so because when the foetus
was monitored
earlier in the labour and after admission, there was no
indication that indeed there was any form of foetal distress. Had,
indeed,
the medical staff correctly and properly monitored the
plaintiff and the foetus in accordance with,
inter alia
, the
relevant nursing guidelines, and particularly during the course of
the crucial period as I have mentioned, the foetal distress
would
have been noticed.
[9]
In turn, had the foetal distress been noticed, in his view
alternative measures could
have been taken such as, possibly, a
forceps delivery. In this regard he was challenged by Mr. Gqamane for
the defence as the doctor’s
note at 13H40 reflected that there
was "CPS" which apparently refers to a possible contracted
pelvis. It was put that
the presence of CPS would negate the
possibility of a forceps delivery. Mr. Hulley's view was, however,
that the doctor concerned
was very inexperienced and because the
baby's head was already within the pelvic area, it is most unlikely
that there would have
been CPS in existence.
[10]
Apart from forceps delivery, the possibility of which was not
mentioned anywhere in the medical
records, there ought to have been
proper management of the plaintiff whilst awaiting the caesarean
section. This would have included
laying her on her left lateral side
so as to take the pressure off the uterus and in turn the aorta so as
to increase the blood
flow to the uterus. She should also have
received an intravenous line with ringers lactate; administered a
drug to reduce the uterine
contractions and administered oxygen to
increase the amount of oxygen in the plaintiff's bloodstream which
would have in turn assisted
in providing more oxygen to the foetus.
Dr. Hulley could not find any suggestion in the medical records that
indeed any of these
management procedures were undertaken as, it
appears, the foetal distress was simply not diagnosed due to lack of
monitoring.
[11]
It was further put to him by Mr. Gqamane that the defence expert, Dr.
Koranteng, would testify
that the plaintiff had indicated to him that
she had taken certain herbal or traditional medicines. In Dr.
Koranteng's view this
would have caused her to have preterm
contractions which was the cause of the HIE. Dr. Hulley did not agree
at all. Apart from
indicating that there is little literature on the
effect of such herbal medicines, he testified that the fact that all
the indications
in the medical records were to the effect that the
foetus had not been compromised at this stage of admission and had
not gone
into any form of foetal distress, ruled out conclusively the
possibility of the herbal medicines having had any effect prior to
admission.
[12]
It was at this stage of the trial that the parties agreed to an
adjournment based on the fact
that Mr. Rowan was taken by surprise by
the various allegations relating to the traditional medicines, as
foreshadowed in an amended
plea filed the previous day. At this
stage, Doctor Hulley was still in the witness box facing a
re-examination.
[13]
On recommencement of the trial, on 4 March 2019, re-examination of
Dr. Hulley was completed during
the course of which, by agreement,
the content of a recent report from Dr. Wright was put to him. This
report was filed on behalf
of the defendant shortly before the trial
recommenced. Apart from one or two minor matters, Dr. Hulley agreed
with this report.
[14]
That was the plaintiff’s case.
[15]
The defendant led one witness, that being the obstetrician and
gynaecologist, Doctor Wright.
In essence, Doctor Wright agreed
entirely with the evidence of Doctor Hulley to the effect that the
HIE must have, in all probability,
occurred during the last two hours
of labour, whilst the plaintiff was in active labour. His report
continues as follows in this
regard:
“
During
the period from 11H15 to 13H15 the FHR (fetal heart rate) was
recorded every half hour. This is in accordance with the Guidelines.
The FHR then rises to above 160 and no action is taken. At this stage
monitoring should have become more regular. This is substandard
care.
Then there is a period of about two hours when there is no monitoring
at all and this is also substandard care. Given the
fact that the
baby was born in an obviously asphyxiated state, it is probable that
the prolonged partial hypoxia happened at least
during the period
after 13H15. She was never seen by a Doctor during all of this time
because the doctor was busy in theatre.
This
suggests again a dereliction of duty by the MEC for Health in terms
of not providing adequate staff. The partogram clearly
indicates the
descent of the fetal head. Therefore, had the FHR abnormalities been
detected, it would have been possible to expedite
delivery with
either an episiotomy, vacuum extraction or forceps delivery.…”
[16]
And then again later:
“
During
the delay in getting the caesarean section done, there is some
mention regarding the administration of oxygen, turn on side
etc. But
there is no mention of the most basic measure viz. the administration
of an agent to stop uterine activity. This is probably
because the
management of the patient was left solely in the hands of the Nursing
staff who would not be empowered to order such
drugs.
All
the above is indicative of substandard care and this poor care is
probably resultant of the final outcome where the brain scan
shows
prolonged, partial hypoxia which has probably resulted in the
eventual neurodevelopmental changes in this child.”
[17]
With regard to the question of traditional medicines, Doctor Wright
excluded this as being a
cause of the minor child’s cerebral
palsy because there were no complications present during the
antenatal period. In addition,
the brain scan shows damage to a term
brain and had any of such medications been causative of such damage,
one would have expected
the damage to have commenced a long time
prior to term.
[18]
That then was the defence case.
[19]
There is no dispute that the plaintiff bears the
onus
in this regard. This would be discharged were the plaintiff to
establish, on a balance of probability, that a reasonable medical
practitioner in the circumstances in which the nurses and/or doctors
at the hospital found themselves would have foreseen the likelihood
of harm occurring (in this matter the likelihood of harm occurring to
Simamkele) and would have taken steps to have guarded against
its
occurrence, and the practitioner concerned failed to take such
steps.
[1]
In the case of an
expert, such as a surgeon, the standard is higher than that of the
ordinary layperson and the Court must consider
the general level of
skill and diligence possessed and exercised at the time by the
members of the branch of the profession to
which the practitioner
belongs.
[2]
[20]
Furthermore, where the plaintiff has presented evidence which of
itself raises, at the very least,
a
prima facie
case of
negligence on the part of the defendant’s servants, an
obligation in the form of an evidential
onus
passes to the
defendant to rebut such
prima facie
case and to explain how
the injury came about.
[21]
The only evidence which I have before me is the evidence of the three
esteemed medical practitioners.
From their evidence it emerges as a
high degree of probability that the HIE occurred during the last two
hours of labour and that,
during this period, there was no monitoring
of the fetal heart rate and other vital signs. As I have indicated
previously, both
the plaintiff’s and the defendant’s
gynaecologists are
ad idem
that this amounts to substandard
care. There is no doubt that this failure on the part of the
employees of the defendant was the
direct cause of Simamkele’s
asphyxia, and consequent cerebral palsy. The failure on the part of
such employees to foresee
such harm and their consequent failure to
take any steps to guard against its occurrence, amount, in my view,
to negligence on
the part of such employees.
[22]
In the circumstances, I find that the plaintiff has established that
the defendant is liable
for any damages flowing herefrom, and grant
an order in terms of a draft order handed up.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
: Mr
P A C
Rowan Sc
INSTRUCTED
BY
: Manitshana,
Tshozi Attorneys
COUNSEL
FOR DEFENDANT : Mr
N Gqamane Sc
: with
Mr Mhambi
INSTRUCTED
BY
: The
State Attorney
HEARD
ON
: 04
MARCH
2019
DELIVERED
ON : 05
MARCH 2019
[1]
Kruger v Coetzee
1966 (2) SA 428
(A) at 430; Mukheiber v Raath &
Another.
1999 (3) SA 1065
(SCA)
[2]
Mukheiber op cit at paragraph 32