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[2019] ZAECMHC 60
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LT obo ST v Member of the Executive Council for Health, Eastern Province Cape (21/2015) [2019] ZAECMHC 60 (15 October 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. : 21/2015
Date of hearing: 01
November 2018
Date
delivered: 15 October 2019
In
the matter between:
L[…]
T[…] obo S[…] T[….]
Plaintiff
And
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN PROVINCE CAPE
Defendant
JUDGMENT
MAJIKI
J:
[1]
The plaintiff instituted a claim based on vicarious liability against
the defendant for a sum of 32
million rands. The claim is
for damages she contends are attributable to the negligent conduct of
the defendant’s employees.
She sues both in her personal
and representative capacity as the mother and natural guardian of her
male minor child, S[…].
She contends that, as a result
of the plaintiff’s prolonged and obstructed labour, S[…]
was born with hypoxic encephalopathy
of the partial prolonged variety
giving rise to cerebral palsy. The action is defended by the
defendant.
[2]
The plaintiff in her particulars of claim alleged various grounds of
negligence by
the defendant’s medical staff, including,
failure to recognise the plaintiff as a high risk patient; failure to
properly
examine and monitor the plaintiff and the condition of her
foetus and administer proper medical care to prevent development of
fetal distress and or cerebral damage when they should have done so.
[3]
The defendant denied that S[…] was born with hypoxic ischaemic
encephalopathy
or that the defendant’s employees were negligent
in any way in their care, treating and managing of the plaintiff and
S[….].
The defendant pleaded that if minor omissions
happened to be found in relation to the compliance with prescribed
procedures,
regarding the care and monitoring of the two, such had no
adverse effect on the birth process of S[…] and had no causal
connection to S[…]’s medical condition.
[4]
During the hearing, it was not in dispute between the parties that
the magnetic resonance
imaging (MRI) scan showed that S[…] has
cerebral palsy due to suffering of a global insult to the brain due
to hypoxic ischemic
injury of a partial prolonged nature with
features compatible with super imposed hypoglycaemia at term.
[5]
The issue is whether S[…] sustained a hypoxic ischemic
encephalopathy (HIE)
or injury,
intra partum
. If he did,
whether the injury is causally connected to any of the proven
negligence due to the defendant’s employees,
within the course
and scope of their employment with the defendant.
EVIDENCE
[6]
The plaintiff testified that she was a primigravida of 18 years,
having been
born on 02 July 1994. She felt labour pains,
she proceeded to Siphetu hospital (Siphetu) where she arrived after
midnight.
She initially said she was admitted on 29 November
2012 but the medical records reveal that she was admitted on 30
November 2012.
She was admitted and assessed just after
00h50. She was in early labour, with 2 centimetres
dilation. At 14h00
on 1 December 2012 she was in active labour
with 4 centimetres dilation. At 17h00, she was again examined,
vaginally.
S[…]’s fetal heart rate was
not checked. After realisation that she had obstructed labour, she
was then transferred
to Madzikane Kazulu Memorial hospital
(Madzikane) for a caesarean section.
[7]
On 2 December 2012 at 08:00 she was given an anaesthetic which
rendered her to be
unconscious. Dr. Ximbi performed a caesarean
section and delivered Sifundo. She later woke up at a
recovery ward,
she was not fully conscious. She observed that
S[…] had swollen head. He was spanked and he gave a soft
cry.
She went back to sleep.
[8]
She saw S[…] again at 12h00. His neck was pulling
towards one side.
He winked with one eye, one hand was
clenched, and another had a wound at the back. He was pink.
She stayed with S[…]
from then henceforth until their
discharge to Siphetu the next day. Sifundo could not
breastfeed, he did not suckle.
Her breast too, could not
produce milk. She fed Sifundo her own juice by using the lid of
a bottle. The nurses
did not give her formula milk. S[…]
cried hard when she stopped feeding him.
[9]
The doctor would come, look at S[…], and would not say
there was anything
wrong with him.
[10]
Upon their discharge they went back to Siphetu. Her breast
could still not produce milk.
A nurse gave her a bottle
and said if she expressed the breast, the milk would eventually
come out. S[…] could
not sustain a sleep for more than
30 minutes, he cried a lot. His neck was no longer twisting.
S[…]’s
eye was no longer winking and his fist was
no longer clenched. S[…] could only breastfeed
after three (3) days
of birth, at Siphetu and he was able to suckle.
She conceded that, whilst kept in hospital, it was her who was being
treated.
[11]
She said they were discharged on 8 December 2012, the discharge
summary indicated that the date
of discharge was 7 December 2012.
She stayed with S[…] for a month and handed him to his
paternal grandmother after
that. She said she was saddened by
S[…]’s condition.
[12]
She disputed that at 16h00 on 03 December 2012 S[…] was
sucking and breastfeeding well
as recorded in the medical records.
She disputed that she ever told the experts she consulted that S[….]
was fed nasogastrically,
when he was unable to suckle. Grace
Hughes, and Dr Hulley referred to this in their reports and said they
got that information
from her. She also denied that she told
Grace Hughes that S[…]’s neck was wrapped with umbilical
chord.
She denied that she ever mentioned to Dr Reddy,
the paediatrician anything about hearing that Sifundo had a seizure.
S[….] never experienced a seizure. She further denied
that she had said she only saw S[…] a day after birth.
She further denied that she delivered S.[…] at
06h00, as Dr Reddy had recorded. She said she told Dr.
Reddy S[…] gave a cry at birth and not an audible cry as
Dr Reddy had noted.
[13]
Her evidence in cross examination changed in various respects.
That included the following
aspects, she said she did not see
everything at the recovery ward. She also introduced the fact
that upon their discharge
from Siphetu, at home and until she gave
the child to his grandmother, his one fist was still clenched, and
the neck was twisting
towards one side. She however, conceded
that she did not inform the medical staff that Sifundo was not well.
She still
said she had forgotten to testify about the fact that
she had told the nurses, upon their discharge that Sifundo, was not
well,
his eye was winking, his neck was twisting and he was not
breastfeeding. With regard to S[…] not
breastfeeding,
a nurse told her that she should wait, the breast
might still produce milk. She said she had forgotten some of
the things
she testified about in her evidence in chief, the previous
day, in particular that she had said the neck was no longer twisting
and the hand was not clinched. She said she also forgot some of
the things that had happened at home. She could not
provide an
answer as to why she told Dr Reddy said she had caesar at 06h00.
She conceded that she told Dr Reddy she arrived
at Madzikane hospital
on 29 December 2012. She said she was confused about the
dates. She also said she had forgotten
to testify about what
she had told Dr Hulley that she was put on a drip. She
said at theatre the nurses kept her awake
despite having testified
earlier that she was unconscious once sedated. When it was
suggested to her that her version kept
on changing because she was
not telling the truth she said she had no answer to that.
[14]
Even though she said S[…] had problems, she could not dispute
what was recorded in the
medical records about Sifundo’s
condition. The medical records indicated amongst others,
that S[…] was
born with Apgar scores of
9/10,
10/10 and 10/10 at 1, 5 and 10 minutes respectively, he was
suckling and sucking well.
[15]
The next witness, a paediatric neurologist, Professor van Toorn,
testified that he examined S[…]
in 2016, when he was four (4)
years old. He had severe developmental delay. He did not
walk, see or hear properly.
He had mild degree of cerebral
palsy. He confirmed that S[…] had caput at birth.
The labour was prolonged to
about five (5) hours instead of the
expected twenty (20) minutes to two (2) hours after the cervix had
fully dilated. In
the summary of labour in the medical
records the part that indicates fetal distress is circled.
The fetal heart was
not monitored in accordance with the Guidelines
for Maternity Care in South Africa (the guidelines). The
fetal heart
should have been monitored every half an hour before,
during and after a contraction for low risk babies. If
fetal
distress was picked up early, interventions like, giving mother
oxygen, lying her on the side, suppression of contractions or quick
delivery could be done. He said based on the MRI and
literature, there was support that S[…] had HIE which occurred
intra partum
which culminated into cerebral palsy. MRI
revealed damage of white matter at the back. That indicated
lack of oxygen
and blood sugar. He said the stiffness,
indicated by pulling of the neck and clenched fist suggested
compromise but there
was no indication of compromise after birth.
[16]
Under cross examination Professor van Toorn made some concessions
relating to whether it could
be concluded that HIE in S[…]
could be said to have occurred
intra partum
. Firstly,
that there had to be abnormalities in the brain on neurological
examination within the first few days of life,
in the first week,
before injury could be said to have occurred
intra partum
.
The classical signs of the abnormalities would include, abnormal
breathing, comatose, eye fiction, low muscle tone, seizures,
reflexes, no cry or lots of cry, posturing, non-feeding and etc.
Secondly, he said he agreed with well accepted Volpe’s
theory on the aspect that three features had to be present in order
to indicate the probability that the injury occurred
intra
partum
. Fetal distress is a risk factor, depending on when
it was diagnosed. The other two features are depression at
birth
and overt neonatal neurological syndrome. The depression
at birth entails absence of a loud cry, low Apgar scores and neonate
requiring resuscitation and being taken away from the mother.
With regard to suction, he agreed that suction was not resuscitation.
[17]
It was suggested to him by Mr Zilwa, counsel for the defendant that
according to the medical
records the Apgar scores were good.
Further, according to the facts based on parts of the plaintiff’s
version and the
medical notes, they indicate that S[….] was
not depressed at birth. He agreed that no seizure was
recorded and
the plaintiff denied telling Dr Reddy about seizure.
He also agreed that a baby with seizure would not be left with the
mother
to be fed juice. He said the pulling of the neck to one
side together with other medical findings, would be indicative of
depression. Brain stem was not shown to be damaged in the scan,
therefore no swallowing problems would be expected on S[…].
If what the plaintiff testified to, including being left with S[…],
S[…] having cried loud, and fed juice together
with clinical
notes, were true, that meant that not all of Volpe requirements were
met, two were not, that is, the depression and
overt neurological
syndrome.
[18]
In the light of that, Professor van Toorn conceded that only the
fetal distress requirement was
met. Therefore, it could not be
said that the injury was
intra partum
. He said his views
that appeared on page 100, second and third paragraphs of his report
took a wide picture in totality,
where he outlined factors favouring
and those against intra partum hypoxic ischemic injury. He
stated that he was not
able to believe the plaintiff and the accuracy
of medical notes. However, he agreed that the discharge of S[…]
on
the second day supported the contention that S[…] was in
good clinical state.
[19]
The paternal grandmother of S[…] testified. Her evidence
mainly, was in respect
of S[…]’s condition on
their alleged first meeting and when she took him over from the
plaintiff.
She said she lived with Sifundo from when he
was one month old. She said she saw S[…] two days after
he was discharged
from Siphetu. He cried a lot, he had a
clenched fist and his neck was twisted on one side. He
had a small bleeding
wound at the back of head. Later, she also
said she only saw S[…] for the first time when he was a month
old.
This is in line with what the experts she consulted in the
matter recorded. She also confirmed that she told them so.
[20]
She said when S[…] grew up, he developed challenges and could
not speak, crawl or sit
still at the age other children normally do.
Later, he developed fits and by then walked with a limp.
[21]
She denied that she had told the occupational therapist and the
physiotherapist that the plaintiff
had told her that Sifundo was born
with the umbilical chord wrapped around his neck. She said the
plaintiff had told her
that Sifundo only managed to breastfeed at
home, after their discharge at Siphetu, not after three (3) days as
the plaintiff testified.
She was also unable to give a clear
answer of what the real position was, in relation to the twisting of
Sifundo’s neck.
When she was told that the plaintiff had
said it had stopped whilst still in hospital, she stated that she was
the one who stayed
with Sifundo. Furthermore, she said, even
though she could not dispute what the plaintiff had said, as the
person who stayed
with S[…], she maintained that his neck was
still twisting. She said maybe it had started twisting again.
[22]
Dr Hulley testified. He had prepared two medical reports in the
matter. One
report he prepared before he had sight of
hospital medical records and another after that. He
corroborated the plaintiff’s
evidence about admission and the
first two assessments. He said at 14h00 the level of head above
pelvic brim was 4/5.
That according to him was an indication of
likelihood of pelvic disproportion. It was not diagnosed for a
period of up to
31 hours. The head had still not dropped after
13 hours. There were adequate contractions
exceeding 20
seconds in 10 minutes. The plaintiff’s
labour progress was poor and prolonged. The fetal heart was not
monitored
in compliance with the guidelines, from 02h00 to
06h30. Her blood pressure went up to 164/93. That should
have
been a reason to refer her to a higher level hospital, sooner.
[23]
He also complained about deletions and or alterations in the medical
records, he said it was
difficult to make out what was written.
He said he did not accept that the Apgar scores recorded in the
medical records were
correct. He said he did not believe the
veracity of medical records.
[24]
In his evidence in chief he was of the view that there was no
explanation for the injury other
than substandard management at the
hospital. He said if S[…] had been delivered in 6 to 8
hours earlier than 08h02
when S[…] was delivered, with proper
management, cerebral palsy would have been avoided.
[25]
Dr Hulley made a number of concessions during cross examination which
he agreed had an effect
of compromising his report. These
included the conclusions he made, based on the information he said he
was told by the plaintiff.
The plaintiff had said she had no
knowledge of most of those, in her testimony in court. The
plaintiff was his only source
for saying S[…] had poor
reflexes after birth, if she testified differently in court his
conclusions in that regard could
not stand. He reversed his
conclusion that referred to nasogastric feeding, in the light of the
plaintiff’s testimony
that S[…] was with her in
hospital. He said he had assumed that S[…] was at the
nursery. He said all
his assumptions in the first report were
based on wrong facts, those conclusions ought to be thrown away.
He also said he
could not have made correct conclusions about S[…]’s
seizure at three (3) months old. S[…] was not with
the
plaintiff, from whom he obtained the said information. He was
with his grandmother. The grandmother had told
court that
S[…] seizures started at one (1) year.
[26]
The plaintiff’s neonatologist expert, a professor at Tyberburg
hospital, Prof Smith, testified
that the plaintiff was given
substandard care at the defendants’ hospitals. Prof Smith
was of the view that HIE occurred
intra partum
. The
twisting of the neck and the blinking of the eye were signs of
encephalopathy. There was a delay in the transfer of
the plaintiff
for purposes of performing a caesarean birth. The nursing staff
ought to have realised much earlier that the
plaintiff’s
progress of labour was poor. They failed to monitor and examine
the plaintiff, two hourly, as recommended
in the guidelines.
[27]
During cross examination Prof Smith appeared to be dismissive of the
recorded Apgar scores.
In his report he had indicated that he
omitted to include the 10 minute Apgar score, because he did not
believe that it was true.
It later transpired that he had
recorded that score and therefore there was no basis for him to place
evidence supporting that
he had ignored the said score. Despite
the inconsistencies in the plaintiff’s evidence, Prof Smith
sought to put his
reliance on her evidence than the medical records.
He said his opinion depended on the history. In his view, there
were no
factual records, however, he acknowledged that the present
records depict a picture of a well baby.
[28]
He said if the plaintiff’s evidence was not to be believed, and
there was no neonatal encephalopathy,
there was no basis for
inferring that HIE occurred
intra partum
. If the baby
cried loudly hours after birth, such was not consistent with a
depressed baby. He conceded that his criticism
about S[…]’s
vital signs that were recorded after birth, was not justified, in the
light of the maternity case record
in exhibit C. He conceded
that when considering the entire picture it could not be established
that HIE occurred
intra
partum
.
[29]
Professor Andronikou, the paediatric radiologist testified. He
had prepared a report in
the matter. He had also provided
electronic images that spoke to the basis of his report. He and
the defendant’s
radiologist expert, Professor Lotz had prepared
a joint minute. They agreed in all respects of radiological
aspects in the
matter. The summary of their agreed findings are
as follows:
·
The distribution of cortical and subcortical volume loss and signal
abnormality
in watershed regions of the brain (predominantly
posterior) and sparing the deep nuclei (except for the thalamic
pulvinars)
is in keeping with partial prolonged type hypoxic ischemic
injury that occurred in a term neonate.
·
The changes in a thalamic pulvinas, posterior limbs of the internal
capsules
and occipital lobes are also in keeping with super added
hypoglycaemia.
[30]
He explained that on probabilities, most hypoxic injuries that happen
at term are supposed to
be perinatal. This meant, immediately
before, during or after delivery. He said according to
the literature,
there is no mention of ulegyria beyond neonatal
period. He went on to say, like all science, there is an upper
limit and
lower limit, therefore there could be no cut off period per
se’. He said he could not give a date of when the injury
occurred. However, the distribution which is the watershed
indicated that the brain was mature. Sifundo’s injury
therefore most likely happened within the first couple of months of
life.
[31]
Before delving on the evidence that relates to quantum, the judgment
will first deal with the
defendant’s case on the merits.
The defendant’s first witness was Dr Korateng, a specialist
obstetrician and
gynaecologist. He had prepared two reports,
the first report was based on the interview he had with the plaintiff
and the
information contained in the road to health chart. He
prepared the next report after he had received the maternity case
record.
His evidence dealt with treatment of the plaintiff
during the progress of labour and ante-natal care.
[32]
He testified that upon the plaintiff’s admission at Siphetu on
1 December 2012 at 00:15
she was examined. She had mild
contractions of one contraction per 10 minutes, in less than 20
seconds. The fetal heart
rate was normal at 142 beats per
minute, which was within the normal range, that of between 110 beats
to 160 beats per minute.
Her blood pressure was 145/85, she was
given 500ml of aldomet. In Dr Korateng’s view that was
not so necessary, her
hypertension was very mild. The cervix
was 2 centimetres dilated. If a patient is in latent phase,
that is, has dilated
up to 4cm, she could even be sent home,
the progress of labour could even take up to a week.
[33]
The next examination was at 14h00 on 1 December 2012, the blood
pressure was normal at 130/80;
the fetal heart rate was 138 beats per
minute; the pulse was normal at 77 beats per minute; the presenting
part was 4/5 above pelvic
brim and there was no caput or moulding.
The contractions lasted more than 20 seconds at one contraction
per 10 minutes.
They were now moderately strong and the cervix
was 4cm dilated. The plaintiff was in active phase of labour.
Her assessment
should have been 2 hourly from then onwards. The
next examination was at 20h00. The cervix was 7 centimetres
dilated.
The presenting part had descended to 3/5 above the
pelvic brim. The fetal heart rate was 140 beats per minute.
The
2 hour monitoring instruction was given. Despite the poor
monitoring, the assessment showed no cause for concern. The
next assessment was on 2 December 2012 at 02h00. Her cervix was
9cm dilated. The fetal heart rate was 136 beat
per
minute, her membranes had raptured. There was no caput,
moulding or level of presenting part indicated.
[34]
At 04h00 the cervix had fully dilated. The fetal heart rate was
135 beats per minute.
Her blood pressure was 145/94, it gave no
reason to worry. She was given dextrose (water with sugar).
An arrangement
was made by the doctor to transfer the plaintiff to
Madzikane. There was a cephalopelvic disproportion (CPD)
problem with
her. Liquor was clean, there was + + caput,
and + + moulding. She was given 20ml of nifedipine to slow down the
contractions.
CPD can be accurately diagnosed in the later
stages of labour. + + + caput with severe + + + moulding could
be indicative
of CPD, especially if the head is not descending as it
should. In his view, there was no delay in the transfer of the
plaintiff
to Madzikane. It is acceptable to allow two hours of
labour after full dilation if there are no fetal compromises.
If the fetal heart rate is normal, there is no meconium stained
liquor and maternal the pelvic is adequate. The plaintiff
was
referred as soon as she was fully dilated, the doctor did not wait
for two hours.
[35]
According to Dr Korateng after the plaintiff entered the second stage
labour, and could not deliver
the baby in two hours, caesarean
section ought to have been performed. However, the plaintiff
took about two hours to travel
to Madzikane and found the doctor busy
with another caesar at 06h30.
[36]
He said he did not agree with Dr Hulley’s opinion that the
plaintiff should have been referred
earlier for caesarean section
because of her small structure. The shoe size and maternal
height have been found not to be
predictors of CPD. For that
contention he relied on the British Medical Journal clinic research
of August 1988. On
1 December 2012 at 08h00 when the cervix was
7cm dilated, the assessment indicated that the head had descended
from 4/5 to 3/5.
The head had descended throughout with
no caput or moulding, but suddenly the baby’s head did not come
out. According
to Dr Korateng that to him was more indicative
of failure of the baby’s head to rotate so that it presented
the right diameters
to the mother’s pelvis, than CPD.
[37]
He said there was abnormality of + + + caput in the first neonatal
examination. The ticks
in other sections of the examination
check list of the neonate indicated that S[…] was not
compromised upon delivery.
S[…]’s colour was pink,
he had nasal flaring that was nursed in an oxygen tent. He
could not explain why there
was still circling for fetal distress.
At 22h00 S[…] was sucking well. On 3 December 2013 he
had normal reflexes,
sucking well, breastfeeding and eliminating
well. His condition was like that until his discharge.
[38]
In the final analysis, Dr Korateng was of the view that, according to
the records, the progress
of the plaintiff’s labour was not
delayed. There was substandard care in as far as her monitoring
was concerned.
However, the records of the neonate did not
support the occurrence of neonatal and encephalopathy which could
give rise to S[…]’s
cerebral palsy. The MR1
scan did not indicate the onset of the hypoxic insult. When the
scan indicates that the
insult occurred at term, that covers a
broadband of period of between 37 and 41 weeks of pregnancy. He
found no
intra partum
cause for the development of cerebral
palsy in Sifundo.
[39]
Under cross-examination he conceded the guidelines were not complied
with. When the plaintiff
had entered the active phase of
labour, the maternal condition had to be monitored, the mother had to
be examined, four hourly
and the fetal heart rate two hourly, during
latent stage, that was not done. The blood pressure was not
taken hourly, the
temperature four hourly, urine volume and test, two
hourly and foetal heart rate
1/
2
hourly
before, during and after contraction. He explained what was
recorded in the medical records as “from three o’clock,
draining clear liquor, cervix fully dilated, head at minus two
stations”. He said it meant that the biparietal diameter
of the head, not the head, was two centimetres. He preferred
the reference to 3/5, 4/5 descent because not everyone could
tell at
what station was the head through vaginal examination. Such
meant that the head was high but not very high.
[40]
He agreed that the entries relating to the descent of the head at
Siphetu recorded as 4/5 and
3/5 at 21h00 were different to those done
later at Madzikane by Dr Ximbi, who recorded 4/5. Also, at
Siphetu they did not
plot the findings in the portogram. Around
twenty hours the portogram had 2/5 and 1/5 above brim. He said
that did
point out to poor monitoring.
[41]
He conceded further that according to the guidelines, the period
from 00:55 is prolonged.
He clarified that, despite the
fact that the guidelines state that the latent phase of labour is
prolonged, when it exceeds eight
hours, they as medical officers did
not just proceed and perform a caesarean section. They
considered every factor first,
the fetal condition, the presence of
meconium, etc. and only then would they make a decision.
Furthermore, a guideline is
a guideline and in his view the
guidelines required review, for example, they did not differentiate
the patients, a primigravida
is never viewed in the same way as
multigravida.
[42]
According to him, the defendant’s staff did the right thing by
waiting on the natural process
of labour, during the latent stage of
labour in the plaintiff’s circumstances. It may not
always be necessary to interfere
with the natural process.
Non-interference did not necessarily lead to death or result in
children with cerebral palsy.
Where the patient had not been
sent home but remained in hospital, the medical staff had to monitor
the patient and the foetus,
so as to see whether she was going into
the active phase of labour and also to exclude fetal non-reassuring
condition. He
had no reason to say the progress of labour was
not good at 20h00 on 1 December 2012 because dilation had progressed
from 4 centimetres
at 14h00 to 7 centimetres.
[43]
He conceded that according to the guidelines, which he reiterated, he
had reservations with,
the poor progress in active phase of labour
started at 20h00 on 1 December 2012. Even though he
agreed that by 21h00
action ought to have been taken, he qualified
that by saying action meant a lot of things in obstetrics.
[44]
Furthermore, the fact that S[…] had nasal flare and was put on
oxygen tent could have
been due to a number of reasons which affected
his breathing. It might have been due to neonatal hypothermia
or hyaline membrane.
Hypothermia is the dropping of the baby’s
temperature due to exposure to low temperature. Also, a baby
had to be given
oxygen if the throat had been cleared and it reacted
normally. Oxygen ensures that the baby is kept warm.
Presence
of the said conditions did not necessary imply that a baby
could not have pink colour and normal muscle tone.
[45]
He said, considering that, the Apgar scores were 9/10; 10/10; the
reflexes were normal; the neonate
was not lethargic, he was breathing
normally and sucking, those did not indicate a baby who suffered from
neonatal encephalopathy.
He conceded to the suggestion that,
because the record of the examination at birth had ticks that also
referred to S[…]
as a female, that could be indicative
of the fact that the examination was not done properly, but that the
nurse ticked the
parts of the medical notes routinely. He
however, said when one considered the recordings in their totality,
he was able
to conclude still, that S[…] was normal after
birth.
[46]
Mr Wessels, counsel for the plaintiff took him through medical
records. On the raised
issues, he summarily stated that,
the blood stained urine in the catheter could have been as a result
of trauma caused when the
catheter passed uterine passage, amongst
others. After diagnosis of non-reassuring fetal condition,
caesar ought to have
been performed in an hour, with conditions
permitting, for example if there was more than one theatre in the
facility; it would
be used when another one was still in use.
At Madzikane there was no need to administer oxygen when the
plaintiff awaited
caesar. She was given a nefedipine at Siphetu
before her transfer. She was transferred for CPD, there was no
fetal
distress. What was written as, “HTC repeated,
nonreactive”, according to him, could only refer to CTG.
The statement meant that it was not showing acceleration or
deceleration, maybe the baby was sleeping or sucking its thumb.
The circling of fetal distress upon the examination of the neonate
was inconsistent with the rest of clinical notes in the records,
including the Apgar scores. Abnormal fetal heart alone, could
not be indicative of foetal distress. Other parameters
had to
be checked, like, the presence of academia, meconium stained liquor,
lethargic baby etc. There were no signs for fetal
distress.
There are many CPD’s without foetal distress. So as there
are 90% of cerebral palsy cases that
are not due to
intrapartum
events.
[47]
The next defendant’s witness was Dr Kara, a paediatrician.
He has been in private
practice at St Augustine hospital in Durban
since 1997. Before he prepared his final report he said
he consulted with
S[…]’s grandmother, examined S[…],
considered maternity case records and experts Dr Hulley and Ms
Brainbridges’
reports. His final report is part of the
record.
[48]
He testified that the summary of labour reflected that S[…]’s
delivery was uneventful.
There were three versions of Apgar
scores but, all indicate that the baby Apgar scores were good.
The only problem that was
noted in the first examination of the
neonate was + + + caput. There was no resuscitation done,
the condition of the
plaintiff and the baby were satisfactory.
The clearance of the airways by suction of the lungs was a
matter of routine
which would, usually not signify the existence of a
problem. The presence of fetal distress was a risk factor the
medical
staff should have been alerted to, and look for signs of
neonatal encephalopathy. According to him, if the infant’s
colour was pink, the medical staff might not have even needed
oxygen. There was limited information furnished in that
regard.
The nasal flaring indicated transient respiratory
distress, which in itself did not necessitate administration of
oxygen.
If the hospital had facilities, they would have needed
to check oxygen saturations with a monitor. If the saturation
was
low, only then would oxygen be administered to the infant.
It was common after delivery for babies to have fast breathing
because during births with caesarean section, their chests did not
get squeezed to expel fluids. The respiration would improve
in
less than 24 hours, on its own. Sifundo was with the mother around
12h00, that was indicative of the fact that Sifundo’s
being on
oxygen was transient. Noteworthy, S[…] was given
two vaccines on 2 December 2012. Vaccines are not
administered on
unwell babies. Before vaccination, one had to be
satisfied with the baby’s condition.
[49]
The fact that at 16h00 on 3 December 2013 S[…] was sucking,
swallowing and had normal
reflexes, indicated that S[…] was
well. He was referred to Siphetu on 4 December 2013. At
Siphetu the indicators
in the reports depicted that S[….] was
well until his final discharge with the plaintiff.
[50]
S[…] had convulsions after a year. On 19 December 2013,
he had fever and flaring
nostrils. S[…]’s
grandmother said it was his first fit. Even though S[…]’s
road to health
chart was not the best of them, it still mentioned no
abnormal developmental concerns to him.
[51]
It was at the three day hospitalisation for fever related fits that
it was noticed that S[…]
was developmentally delayed. He
said Si[…]’s grandmother’s history was not
reliable. She said she
first saw S[…] at one month and
later said at two months. She had said S[….] was fed
with a bottle, a cup and
a spoon. He was sucking well.
[52]
According to Dr Kara in S[…]s case, there is no evidence of
neonatal encephalopathy.
For the injury to be said it occurred
intra partum
presence of encephalopathy is an essential
factor. It is not manifested by just an abnormal cry or slight
movement or head
nodding, it is an overt syndrome. There must
be a moderately severe encephalopathy lasting several days.
Volpe’s
features were not satisfied, which must all be present
simultaneously in order to say the injury occurred
intrapartum.
[53]
In cross examination he said he agreed with Dr Campbell’s
report which suggested moderate,
severe septic cerebral palsy.
He however, said Dr Campbell was generous on life expectancy.
He said he missed
the part about severe spastic quadriplegic
cerebral palsy, if it was the case S[…] would not have been
ambulant. He
said he probably signed the joint minute which was
drawn by Dr Campbell without noticing the reference to severe spastic
quadriplegic
cerebral palsy. What Dr. Kara said in this regard
has to be viewed mindful of the plaintiff’s paediatric
neurologist’s
evidence that Sifundo had mild degree of cerebral
palsy.
[54]
He said no one could tell when the injury occurred. The timing
of the injury could only
be based on probabilities. If there was no
moderate severe encephalopathy, lasting several days, everything fell
away, there was
no link of injury
intra partum
.
[55]
About the recording of the examination at birth, he said he would not
rely on the ticks only.
He would worry if Professors van
Toorn and Smith would base their view that, there was no thorough
examination, on the incorrect
tick of genetalia only. Dr Kara
said he would consider all relevant factors in order to make
conclusions about S[…]’s
condition. He
disagreed with Professors Van Toorn and Smith opinions,
according to him S[…] was well at
birth. He specifically
explained that if injury had occurred during labour or after delivery
S[…] would have been
severely compromised and required
intensive support. Regarding the abrasion in S[…]’s
neck he said it was common
in caesarean births for babies to be cut
in the process.
[56]
Dr Ximbi testified, he said he was a senior medical officer and was
the plaintiff’s
receiving doctor at Madzikane hospital.
He delivered S[…] by caesarean section. He wrote the
clinical notes
about the plaintiff’s delivery. He
delivered S[…] without delay or difficulty. The delivery
took 10 minutes.
He scored the Apgars of 9/10; 10/10. The
first two scores were done at one and five minutes at theatre.
The first one
was done after he had taken out the baby and had
palpated it. The second one is usually done without
touching the baby.
The last score was done after the baby would
have been taken to the nursery. It might have taken
longer than 10 minutes
to do the last score. He first finished
everything before he went to the nursery. The receiving sister
also scored
the Apgars at one minute of their receiving of the baby.
Sifundo did not need resuscitation. Both the plaintiff and
S[…]’s conditions were satisfactory. He did not
complete the summary of labour indicating the time of delivery
as
08:28. He also did not complete the section referring to first
examination of the neonate.
[57]
Regarding the note “bleeding to both” he explained that
the plaintiff bled, mothers
bleed vaginally after giving birth.
That could have referred to S[…] as having been bleeding as
well, he could
not be certain. However, it made sense
that the second bleeding still referred to the plaintiff, that
she also bled
where she was sutured, if not sutured properly.
[58]
His view was that the plaintiff was probably mistaken in believing
that S[…] was sick
at birth. He would not have referred
a sick baby to neonatal department. Furthermore, he would not
have sent S[…]
back to Siphetu. He was well and stable.
If he manifested neurological problems, that was definitely not the
case at
birth. S[…] came out live with all reflexes,
crying, with good colour and skin tone. At that stage, nothing
suggested neonatal encephalopathy.
[59]
Under cross examination he said he did not complete the note which
recorded the delivery time
as 08h04. That was the note of the
nurse at theatre. However, he had delivered within three to four
minutes several times
before. He conceded that there were no
notes in obstetric and anaesthetic portions of the record.
Nonetheless, elsewhere
in the records it appeared that the plaintiff
was given 2millilitres marcain under spinal. That paralysis
lasts about six
to eight hours. He said + + + caput did not
necessarily indicate fetal neurological compromise.
[60]
Furthermore, he said all babies that come out had to undergo
suction to clear the airway.
He was asked to explain how he
scored Apgars and it was suggested that his scoring was inaccurate.
He explained that the
scoring is subjective according to the
discretion of the scoring clinician. However, overall there is
conversion as to whether
the scoring depicts normal or abnormal
picture. As for recording everything including, whether
meconium was stained or not,
HCT, fetal distress etc. he said it was
important to record in full. Where the Apgar scores are good,
it may not be so necessary
to state the fetal distress.
[61]
Ms Thuleka Ranana also testified . She said on 1 December 2012
at 19h00 she reported for
duty, at 19h00. She worked as a
professional nurse and midwife at Siphetu. She recorded the
notes in the maternity
case record on 01 December 2012 at 20h00.
She took over from sister Mpisane. Sister Mpisane subsequently
testified
during trial. In assessment 2 she recorded :
·
The plaintiff’s BP was good at
128/
70
;
temperature was normal at 36.4;
pulse
was normal at 76 urine had no abnormalities detected; the fetal heart
was normal at 140 beats per minute; dilation was 7centemetres;
the
fetal head was 3/5 above pelvic brim.
She
also noted that the plaintiff and the fetal observation was to be
done 2 hourly.
[62]
Her second assessment was at 02h00. She had altered the date
and time of assessment.
She said she made a mistake because she
was working hard and it was late. There were two midwives in
the shift, assisted
by two assistant nurses. She wrote the time
where she ought to have written the date. The plaintiff was 9
centimetres
dilated. She had moderate to strong contractions.
The membranes had raptured spontaneously and drawing clear liquor.
The fetal heart rate was 136 beats per minute.
[63]
She conceded that the plaintiff was not assessed in accordance with
the guidelines. She
said she could only do her own first
assessment at 20h00 as it took her an hour from 19h00 to take
reports. She was also
busy with another patient, she could not
do her 2 hourly assessments on the plaintiff, she only assessed her
at 02h00. After
that she did the next assessment after 2hours,
at 04h00. She also conceded the latent stage was prolonged when
it exceeded
8 hours. When she said progress of labour was good
at 20h00, she had looked at the fetal heart, it was good. She
did
not comment on the suggestion that the progress labour was not
good between 14h00 and 20h00. The plaintiff had dilated from
4
centimetres to 7 centimetres. Nevertheless, the court had heard
from Dr Korateng that there was no cause for concern at
that time.
Mrs Ranana conceded that at 02h00 the progress of 2 centimetres was
poor. At 04h00 the plaintiff was fully
dilated, she called
for the medical officer to assess.
[64]
Noncedo Mpisane testified that she was a midwife at Siphetu
hospital, She was on duty on
1 December 2012. She did not
record the progress of labour because the plaintiff was in active
phase. She assessed
the plaintiff at 14h00 and completed
assessment 1. Fetal heart was 138 beats per minute. There
was no caput or moulding.
The plaintiff was 4 centimetres
dilated. Contractions were less than 20 seconds in 10 minutes.
The fetal head was 4/5
above the pelvic brim. The plaintiff’s
BP was 130/88, the pulse was 77 and the urine had no abnormalities
detected.
According to her there was nothing alarming
with the plaintiff’s and the baby’s conditions.
She was
the person who started to plot the partogram .
[65]
She testified further that on 3 December 2012 the plaintiff returned
to Siphetu. She recorded
the notes at 16h00. It was day
one after the operation on the plaintiff. The operation was
clean, with no visible blood.
Her feet were slightly swollen.
The catheter was drawing well. The plan was to continue her
with antibiotics. S[…]
was sucking and swallowing, the
reflexes were normal. Breastfeeding was to continue. She
denied that when the plaintiff
arrived, S[…] could not
breastfeed or there was no milk coming out, or he could not suckle
such that the plaintiff fed her
juice. She said the
plaintiff could not be able to source juice on her own because she
was not able to walk.
Her clothes would have been kept at the
kit room, she would not keep juice. She would have toiletries,
only, with her.
[66]
She said she made the notes stating that S[…] was
feeding and passed urine.
If a baby could not feed sufficiently
that baby would not urinate. The further record that S[…]’s
elimination
was good showed the medical staff’s continuation of
care. She stated that she was not satisfied with the further
records
in the partogram. She also could not read the
alterations made thereon.
[67]
Nombulelo Bonga also testified. She said that
in December 2012 she worked as a professional nurse and midwife at
Madzikane. She recorded the puerperium notes on 2 December
2012
at 22h00. Her observation showed that both the plaintiff’s
condition and that of S[…] was well. When
she took over
the duties, she had seen the Apgar scores and the doctor’s
notes. She explained her notes in detail,
she said she took
them as she was next to S[…]. If there was anything abnormal,
she would have noted it and referred the
matter to a medical officer
for immediate attention. She said she did not write the note
about S[…] being nursed in
oxygen tent. Even though it
was not indicated, which ought to have been recorded, as to when S[…]
was removed from
the oxygen tent, he could not have been in the
oxygen tent and at the same time still have the plaintiff at
puerperium. S[…]
was already with the plaintiff.
The guidelines allowed them to use oxygen tent, its measurement is
regulated according to
the weight of the baby. It is usually
given to boost the baby if the mother was in labour for a long time.
However,
S[…] was born normal, there would have been no need
to be much concerned.
[68]
Various other experts were called by the plaintiff. Mr Erving,
a forensic document examiner
testified. He examined the
original maternity case record of the plaintiff. He pointed out
various alterations, difference
in handwriting and adjustments on the
notes in the maternity case record. During the hearing he
conceded that he failed to
comment on spelling alterations. He
also conceded that some alternations were minor corrections that
indicated ordinary mistakes.
[69]
The alterations on the notes at Siphetu after the plaintiff was
re-admitted with S[…]
were later explained by the author, Mrs
Ranana in her testimony.
[70]
The speech therapist Ms Singh testified. She has been in
private practice since 2007.
She said she did an additional
course on swallowing. According to Ms Singh, S[….] has
dysphagia which was not capable
of improving but which required
lifelong management. According to her when Sifundo was
asleep there was saliva that
went to his chest and could cause
chocking. His lips could not close properly and the saliva
drooled. She said she
did not cover the aspect of
breastfeeding and the fact that S[….] could suckle from day
three of birth. She
said she was not aware of S[…]’s
brain and swallowing abilities after birth. S[…] was not
underweight but had
difficulty in eating and drinking with
consistency.
[71]
Mr Gregory Shapiro, an industrial psychologist testified. He
had an interview with the
plaintiff and had had regard to medical
reports and various other experts’ reports. He also
signed the joint minute
with the defendant’s industrial
psychologist, Ms Bobat. Their conclusions differed in the
following aspects;
·
Ms Bobat did not include tertiary qualification scenario. S[…]
had a paternal sibling who has a diploma.
[72]
They both looked at S[…]’s career path with and without
injury. S[…]
would have passed grade 12, if he was not
injured. They agreed that S[…] would have retired at the
age of 65 years.
They agreed to use Kogh’s salary survey,
2017. S[…] would never enter labour market.
Under cross
examination he said the family background was given small
consideration when assessing how the injured would have faired.
It was not a strong predator for him. Their focus was on
available infrastructure to determine the academic progression of
a
minor child.
[73]
Grace Hughes a physiotherapist testified that she examined S[…]
at the age of 3
1/
2
years. She also
consulted with the plaintiff and S[…]’s grandmother.
She also had regard to the road to
health chart. According to
her, S[…] will remain disabled and will require ongoing use of
positioning and sitting
aids, in order to improve his quality of
life. He presented muscle tone abnormalities. He had
diminished trunk strength
and endurance and had difficulties crossing
the midline. His gross motor development was equivalent to a
child of about two
years old. Under cross examination she
conceded that, due to the contradictory information the plaintiff and
the grandmother
gave to her and to court, her report would be
affected, however her assessment based on her observations would not
be altered.
[74]
Ms Mandy Reed, a dietician also testified. She said she based
his report on her assessment
and the report he got from the
plaintiff. She was under the impression that she was S[…]’s
caregiver.
She also saw other reports of some of the
plaintiff's experts. She opined that S[…]’s
drooling would make it
difficult for him to feed on solid foods.
He would not be able to feed with consistency and take in the quality
of the food.
During their consultation he did not feed or see
S[…] feeding. She expressed doubts as to the credibility
of what
the plaintiff told court that S[….] could eat solid
foods. She said the recommendations of the defendant’s
dietician
co-incided with his. Ms Read just
added one blood test per year and a daily mineral supplement.
[75]
Mr Dione Rodemeyer a mobility consultant testified. He said his
report was meant to quantify
Sifundo’s present and future
external mobility requirements which would provide a reasonable
quality of life. It was
based on reports of medical experts,
physiotherapist, occupational therapist and nursing professionals.
He did not personally
assess S[…]. S[…] would
always require a vehicular transport and had to be accompanied.
[76]
He recommended that S[…] needed a dedicated run about car.
According to him S[….]’s
private transport would compare
equitably with public or hired transport. Public transport
would always have to cater for
costs of the person to accompany
S[….]. It could be more than double the normal costs,
considering the additional
costs of the refreshments of the person to
accompany S[…].
[77]
He conceded that in his report he did not include that public
transport arrangement could be
made for S[….]’s
travels. He said he based his calculations on previous
calculations he had done. He said
his calculations tended to be
on point regarding S[…]’s reality of the distances he
would travel and frequency of
the need to travel. He, however,
conceded that he did not know the proximity of S[….]’s
home to the main road.
[78]
Ms Sue Anderson, a paediatric general ICU nurse’s report
was admitted by consent
between the parties. She gave an
estimation of costs of equipment S[…] would need for his
disability, its maintenance,
personnel to attend to the equipment and
costs for his therapy sessions. Her estimations were taken into
account in the actuarial
calculations.
[79]
Mr Rob Campbell the physical rehabilitation expert had prepared a
report on S[….].
He consulted with the plaintiff and
S[…]’s grandmother in 2016. He also examined
S[…]. He also
went through Prof Andonikou, Ms
Brainbridge and Dr Hulleys’ reports. In their joint
minute with Dr Kara they recorded
that Sifundo’s clinical
features is associated with a reduction in his life expectancy.
His life expectancy is 73 –
75% of that of his population peers
or an additional 47 years from his then 4 years of age. There
were certain considerations
that he said he had made based on the
history that was narrated by S[…]’s grandmother which
turned out to be different
to what she said in court and to other
experts, like Grace Hughes. For example, he had said Sifundo
was unable to speak even
a single word and that he walked with a limp
and could stand independently. It was established that in
actual fact S[…]
could say a few words and was able to walk
and run but required support to improve his stability. With
regard to S[…]’s
medical costs, some fell by the
wayside, those that remained were taken into account in the actuarial
calculations.
[80]
Ms Jane Brainbridge an occupational therapist testified that she
assessed S[…] at 2 years
of age. She opined about S[…]’s
physical and cognitive abilities. Furthermore, she testified
about the
effect the disabilities might have on his functional
performance of activities of daily living. She then submitted
costs
of what S[…]’s future treatment would entail.
When she observed S[…] she found him to be motorically reliant
on assistance for dressing. His cognitive, speech and physical
delays could not be accommodated in a mainstream school.
Better options for remedial schools for him would be in East London
and Durban. He had not received therapy before.
He was on
level IV on the eating and drinking ability classification
scale. He was on level IV on the manual ability
classification
scale. He needed a care giver for 24 hours. He would need
transport to his therapy sessions. Ms
Brainbridge’s
evidence and her joint minute with Ms Mzila was included in the
actuarial calculations.
[81]
The plaintiff’s actuarial calculations were admitted. The
defendant asked for higher
contingencies of up to 50% because the
plaintiff must have overstated S[…]’s condition and
stated that he is septic
quadriplegic.
[82]
In order to establish a claim against the defendant, the plaintiff
must have proved that S[…]’s
injury occurred
intrapartum.
Further, that the injury must have been caused by
the negligence of the defendant’s employees. It is trite
that this
involves a factual enquiry as to whether the negligent act
or omission caused the harm that is the basis of the claim. If
it did not the claim fails. If it did, whether the negligent
act or omission is sufficiently, closely or directly linked
to
the harm for legal liability to ensue. The submission on behalf
of the plaintiff in this regard was that, the court had
to evaluate
the evidence and decide whether as a matter of inference or
otherwise, on a balance of probabilities, indeed the defendant’s
employees were negligent and that negligence caused S[…]’s
injury.
[83]
With regard to the inference the court has to draw, in
AA
Onderlinge
Assuransie Associasie BPK v De Beer
1982 (2) SA
603
A at 614 h – 615 B it was held to be that of
discharging the onus to convince the court that the inference the
plaintiff
advocated is the most readily apparent and acceptable
inference from a number of inferences.
[84]
The plaintiff sought to rely on
Lee v Minister of Correctional
Services
2013 (2) SA 144
(CC) in its submission that defendant’s
employees caused S[…]’s injury. It was submitted
on behalf of
the plaintiff that because of the defendant’s
conceded failures to adequately monitor the plaintiff’s labour,
in accordance
with prescribed methods, including, the defective
record keeping mode, therefore the timing of the probable hypoxia of
the foetus
would not be able to be identified. In Lee’s
case,
supra
, the plaintiff had contracted tuberculosis (TB)
whilst in prison. The source of the infection could not be
identified.
The court had to determine whether the systemic
failure to take preventive and precautionary measures by the
department of correctional
services caused the plaintiff to be
infected with TB. The plaintiff had no TB infection upon
incarceration. He
was diagnosed with TB after three years
of his incarceration.
[85]
In my view, the facts in Lee’s case are distinguishable to the
present case. Therein,
the statement of agreed factual
findings indicated that the plaintiff did not have TB infection when
he was incarcerated;
the responsible authorities were, pertinently,
aware of the risk of inmates contracting TB; the congestion and
confinement of inmates
to close contact for as much as 23 hours every
day provided ideal conditions for transmission; and the responsible
authorities
relied on a system of inmates self-reporting
symptoms of TB, among others. It was established hypothetically
as to what the
prison authorities ought to have done to prevent the
TB infection. Even though it well could not have been total
elimination
of risk. An inference was therefore made that a non
negligent system reduced the risk of general contagion.
Therefore,
individual contagion with a non negligent system, would be
less likely than in a negligent system. I had not been pointed
to facts similar to those in the present case. It is known that S[…]
suffered acute profound hypoxic ischaemic injury of
a partial
prolonged nature with features compatible with super imposed
hypoglycaemia at term. It still requires to be established
that
the signs that S[….] had neonatal encephalopathy at birth were
present in order to determine that his injury occurred
intra
partum.
Furthermore, that had it not been for the
defendant’s employees poor monitoring, the risk would not have
ensued
or it would have been prevented to some extent.
Finally, in
AN v MEC for Health, Eastern Cape
[2019] (4) ALLSA
(1) (SCA) at paragraphs 7 – 8 the court stated that Lee’s
case seemed to embrace a flexible approach
to causation only where
the specific incident or source of infection cannot be identified.
The court then applied the traditional
but for test because the
source of harm was known, it was acute profound hypoxic ischaemic
insult caused by complete lack of oxygen
to the brain for a sustained
period.
[86]
It was submitted further on behalf of the plaintiff that even if the
court applied the
traditional “but for” test, the
plaintiff has proved that the damages causally flow from the
negligence of the defendant.
In order to determine this the
courts have repeatedly explained what that factual enquiry involves.
In
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA
680
A at 700 F-G Corbett CJ, explained the but for as follows:
“
In order to apply this test
one must make a hypothetical enquiry as to what probably would have
happened but for the wrongful conduct
of the defendant. This
enquiry may involve the mental elimination of the wrongful conduct
and the substitution of a hypothetical
course of lawful conduct and
the posing of the question as to whether upon such an hypothesis
[the] plaintiff’s loss would
have ensued or not. If it
would in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff’s
loss;
aliter,
if it would not
so have ensued. If the wrongful act is shown in this way not to
be a
causa sine qua non
of the loss suffered, then no legal
liability can arise …”
[87]
All the experts called on the merits by both parties agree that if
there were no clear signs
or neonatal syndrome, the brain injury
could not be attributed to
intra partum
asphyxia. The
neonatal neurological examination exhibited by the infant within the
few days of birth, for example, fits,
seizures, changes in muscle
tone, tendon reflexes, abnormal breathing, fisting etc.,
The question that requires an
answer in S[…]’s case
would therefore be whether, his condition after birth meets the
criteria and features
for an inference of an
intra partum
cause.
[88]
The available evidence on the condition of S[…] after birth
and few days thereafter, is
the following:
·
Evidence of the plaintiff;
·
Clinical notes on the medical record and the staff who attended the
plaintiff
and S[…];
·
Evidence of S[…]’s grandmother.
With regard to the clinical notes, it
has submitted on behalf of the plaintiff that, it has not
been shown that there
was no encephalopathy found, following, a
thorough and proper examination by a knowledgeable person.
Encephalopathy was present
after birth as testified to by the
plaintiff and S[…]’s grandmother but it was not
recorded by a competent trained
person after a thorough examination.
[89]
This submission presents a problem, there are specific clinical notes
that indicate the record
of the state of S[…] on the aspects
that relate to the presence or absence of encephalopathy. I
would have to reject
those recordings to find that encephalopathy was
not recorded. There is criticism against Apgars recorded
by Dr Ximbi,
However, the experts agreed that Apgars, alone, cannot
be used to assess presence or absence of HIE, Dr Ximbi
explained as
to when he took the Apgars. At theatre, he was
criticised that he could not have tested sucking and grasping
reflexes.
Furthermore, that would be so because those are
not part of the standard Apgar test. Even if I would accept
this, Dr
Ximbi gave further explanation about the condition of
S[…] after delivery. He even said, if he was not well,
he would have referred him. S[….] manifested no
neurological problems. There has not been a basis that has been
suggested which sought to cast doubt about Dr Ximbi’s
professional abilities in this regard.
[90]
There were notes about the examination of the neonate at Madzikane.
A criticism was directed
at the ticks on S[…] as having both
genitals. The author, sister Mzinyane was said to have retired
and that she could
not be traced. However, when I have regard
to other factors, as Dr Kara suggested in his testimony, such as
the detailed
record sister Mzinyane made, other notes recorded
in their totality, a day after birth, S[…] having been kept
with the plaintiff
in the ward, the notes by sister Bonga who
testified, that S[…] was pink, active, sucking well, retaining
with good elimination
and the fact that Dr Ximbi discharged S[…]
to Siphetu, I have no reason to doubt the notes made by sister
Mzinyane as well.
[91]
Furthermore, there were further notes upon readmission of the
plaintiff and S[…] at Siphetu.
The authors of the notes
testified. They were qualified midwives, with vast experience
in the caring of neonates. They
confirmed the records they
noted. I would not find basis to reject their evidence, in
particular with regard to S[…]’s
condition. Their
evidence was clear and not biased. Three days after birth S[…]
could suckle, he was breastfeeding,
he was swallowing with normal
reflexes and his elimination was good. That testimony related
to the observations at
Siphetu, another hospital which was not
the delivery hospital, Madzikane.
[92]
The evidence of the plaintiff on the other hand contradicts these
clinical notes with regard
to the condition of S[…].
That brings me to the need to examine the quality of her
evidence. She said
the fetal heart was not checked at Siphetu.
When I view her evidence in totality, I consider that as
probably having
been her failed attempt to mimic her experts, that
the monitoring was substandard. She testified to the pulling of
the neck,
the blinking eye, the clenched fist and inability to feed
from 12h00 on the date of birth, until after three days. She
said
S[…] was feeding on juice with a lid before day three.
After three days all those symptoms had subsided. S[…]
was crying a lot. She had no knowledge of the nasogastric
feeding, the seizure, the loud cry at birth, Dr. Reddy referred
to
and of S[…] having been at the nursery, as referred to by her
experts. She changed to say the neck and the fist
problems in
Sifundo were present in S[…] at home.
[93]
The plaintiff’s evidence on the symptoms of S[…] being
unwell after birth was very
inconsistent. Her own expert said
the infant could not feed on juice, otherwise he would have fallen
ill. The symptoms according
to her were manifested at 12h00, they
subsided and resurfaced at home after discharge, eight days after
birth. S[…]’s
grandmother’s evidence in this
regard was different with that of the plaintiff’s. She
said she saw the symptoms
two days after the plaintiff and S[…]
were discharged from Siphetu. However, she also said in court
and to some experts,
she saw S[…] when she was a month old.
She also said the plaintiff had said S[….] could only
breastfeed
at home not after three days, in hospital.
[94]
The plaintiff was clearly not able to stand by her evidence under
cross examination. She
would be dump and not be able to explain
the problems in her evidence. S[…]’s grandmother
fared better.
However, the essence of her evidence on S[…]’s
state after birth was destroyed by her having said she first saw S[…]
when he was one month old. The plaintiff and S[…]’s
grandmother’s evidence on this aspect did not
assist the
court. I find no reason why both hospitals would not record any
of what the said two witnesses said at all.
The nurse allegedly
gave the plaintiff a bottle to express milk. Why would she fail
to note that S[…] could not suckle
but was bottle fed, at her
instance.
[95]
I now turn to consider the evidence of Prof. van Toorn.
He said there was a
mild degree of cerebral palsy. Sifundo had normal
weight and head circumference. The pattern of the injury
suggested that
the brain was starved of oxygen and sugar. That
was caused by prolonged labour. Babies with that pattern
of injury
usually have complications during the birth process,
especially when there was prolonged labour. They were born
suppressed
with neonatal encephalopathy. Nasal flaring
suggested respiratory distress. The pulling and stiffness of
the neck were
abnormal signs which could even suggest a seizure,
those support that HIE occurred
intra partum
. He found
no basis for the contention that there was compromise or risk of
brain damage before onset of labour.
[96]
Even if I would accept that S[…] was unwell, it is not in
dispute that he was kept with
the plaintiff, throughout the
duration of his stay in both hospitals. Prof van Toorn
also said, that S[…]
had no classical signs of abnormalities
and no overt neurological syndrome, that implied that there was no
indication of compromise
after birth. I find it hard to believe
that if S[…] needed proper neurological examination, the
blinking eye, the
stiff neck, etc. which the plaintiff saw as a
layman, none of the medical staff was able to observe or respond to
her when she
reported those. Furthermore, all relevant experts
agreed that Volpe remains a renowned authority in this area and not
all
three authoritative features Volpe refers to were
satisfied. Eventhough, Prof van Toorn qualified this by stating
that
Volpe did not incorporate MRI scan findings. Having looked
at everything in totality, I am not persuaded that Prof van
Toorn put forward enough basis on evidence, to support the
probability of the injury having been
intrapartum
.
[97]
Prof Smith said the combination of S[…]’s nature
of injury was found in babies
who had lacked energy stores, glucose
sugar. That occurred during protracted exposure to hypoxic
ischemia in uterine over
hours and/or in the immediate period in the
first week after birth. The type of injury was sustained over
several hours.
That would be consistent with long poor progress
of labour. The Apgar score at 10 minutes could not
physiologically link
with the fact that S[…] was in
respiratory distress when he came back from theatre. He also
said that the nursing
of S[…] in an oxygen tent and his having
a nasal flaring suggested some form of respiratory distress. He
said there
was no record of the concentration of oxygen given.
According to the notes, S[…]’s breathing was scored at 1
at one minute of life. The breathing was said to be 2 at five
minutes. However, on the table he looked at, S[…]’s
breathing was still abnormal. He therefore could not attach any
value to the Apgar scores in the maternal notes. He
was of the
view that the manner in which S[…]’s breathing was said
to have recovered on its own, without putting a
bag mask, would be a
cause of concern in itself. It would have required a follow up
immediately.
[98]
In Prof Smith’s view, the ticks on both genitals on the
neonatal assessment; the
lack of record of pulse, breathing rates,
temperature, sugar levels and etc. suggested that there was no
evidence that S[…]
was properly assessed. He said
considering that, S[…] was later diagnosed with a smaller than
expected head; there
was prolonged latent and active stages of
labour; there was poor monitoring; there was lack of management of
fetal distress, there
was delayed adjusting of respiration and the
nature of his injury, those support
intrapartum
hypoxic
ischemia and hypoglycaemia. Had proper care been
administered the outcome of labour would probably have been
prevented
and there would have been no need to nurse S[…] on oxygen
tent. Furthermore, the features described by the
plaintiff to
him were consistent with encephalopathy.
[99]
Prof Smith put more reliance on the history he was given by plaintiff
than the medical records.
When advised of the plaintiff’s
testimony in court, he conceded that, if the plaintiff was not to be
believed, there would
have been no basis to suggest that S[…]
had neonatal encephalopathy. Consequently it could not be said
that the injury
occurred
intrapartum
. The medical
records depicted that S[…] was well. There was no
dispute in the fact that S[…] was
kept with the
plaintiff. The plaintiff herself said he was crying loud.
According to Prof. Smith if S[…]
had cried loudly after
birth, he could not have been depressed. He said
this picture did not suggest an injury
intra partum.
He
conceded that many babies who initially had breathing difficulties
which get resolved, end up without encephalopathy.
In my view,
Prof Smith’s analysis of the nature of the injury and the
poor monitoring would not be viewed as
sufficient to support an
intrapartum
injury, if S[…] had no encephalopathy, at
birth. As regards lack of proper examination, Dr Ximbi
positively testified
that S[…] manifested no neurological
problems at birth. Nasal flaring had been said to be indicative of
transient respiratory
distress which did not need oxygen. The
evidence showed that S[…] did not need to be cared for at
nursery.
[100]
Dr Hulley’s main complaint which he opined resulted in S[…]’s
condition was prolonged labour.
The head had not dropped in 13
hours. The plaintiff had adequate contractions. Her BP
was 164/93. She ought to
have been referred for delivery
sooner. Dr Hulley withdrew a number of his findings when
advised of the plaintiff’s
testimony about S[…]’s
condition after birth. He also said that despite the
substandard care, without neonatal
neurological syndrome the brain
injury could not be attributed to
intrapartum
events.
[101]
The only evidence led on behalf of the plaintiff which would
have assisted in the timing of the injury in
this matter would have
been that of the plaintiff, during her time at the defendant’s
hospitals. Her evidence would then
have to be contrasted with the
medical records and the testimony of the defendant’s medical
staff, during labour and after
the birth of S[…]. The
plaintiff consulted with various experts and gave them a version
which differed with her evidence
in chief and in cross examination.
There are aspects in her version as given to the experts that are
very concerning, for
example, that S[…] was fed
nasogastrically and that she only saw him the next day. I am
unable to accept the plaintiff’s
evidence in as far as it
differs with the defendant’s version. Her version to the
experts which turned out not to be
true affected the opinions of
those experts to a great extent. They had to concede that if
her version was not accepted Sifundo
injury could not be found to
have occurred
intrapartum
.
[102]
As for S[…]’s grandmother’s evidence, I accept it
in as far as it relates to the time S[…]
was one month old.
That was what she also confirmed she told the experts she consulted.
Her evidence that she saw S[…]
two days after his discharge
from Siphetu and her description of his condition is
self-contradictory. It also contradicts
the plaintiff’s
evidence in chief about S[…]’s condition after discharge
from Siphetu. It is also not
consistent with two versions she
gave to Dr Kara that she stayed with S[…] when he was one and
again two months old.
[103]
The defendant’s employees’ evidence did not have
contradictions. They would easily concede to
the substandard
care and monitoring of the plaintiff and S[…]. They also
conceded the problems with the partogram.
Even though they
could explain some of the contributory difficulties, such as being
short staffed but that was not in an attempt
to justify their
noncompliance with the regulations. Their evidence was
satisfactory in relation to the entries in the medical
records.
Their evidence in support of the medical notes, is accepted that S[…]
had no neurological syndrome and was
not depressed at birth.
[104]
The evidence established that the plaintiff was fully dilated only at
04h00. When the arrangement for her
transfer was made, she was
given nifedine, there were no fetal compromise indications.
Dr Korateng had testified that
despite the failure to adhere to the
guidelines, regarding fetal heart monitoring, the assessment at 20h00
on 1 December showed
no cause of concern. He also said two
hours lapse after full dilation was acceptable. When CPD was
realised the
plaintiff was transferred immediately. The 1
1/
2
hours in Madzikane was because the operating doctor was busy at
theatre. The travelling to Madzikane took 2 hours.
Dr
Korateng said after diagnosis of non reasoning fetal heart condition
under normal circumstances, caesar had to be performed
in an hour.
There was no fetal distress upon transfer. Despite the fact
that Dr Ximbi level descent of the head was
not consistent with the
records at Siphetu, I accept that considering the results of the
assessments, that there was no caput or
moulding, there was clear
liquor, therefore there were no early obvious indications of CPD.
S[…] was given two vaccines
after birth which would not be
done when the neonate was unwell. According to Dr Kara abnormal
cry and nodding of the head
did not satisfy the requirement of
presence of encephalopathy after birth. S[…] never
required intensive support.
When Prof. Smith suggested that if
care had been administered the outcome would probably have been
prevented, he supported that
by saying that if S[…] was well
he would not have needed oxygen tent. However, he also said not
all babies with
breathing problems end up with
encephalopathy at birth. I accept what the defendants’
experts said, that considering
S[…]’s
condition in totality, there probably was no need
to even administer oxygen in him.
[105]
In conclusion, despite the defendant’s medical
personnel’s negligence in the care of the plaintiff
and S[…],
in the light of the insurmountable problems in the plaintiff’s
case, I am of the view that the plaintiff
has failed to establish
that S[…]’s injury had occurred
intrapartum
and
therefore is causally linked to the defendant’s personnel’s
omissions.
In
the result,
The
plaintiff’s action is hereby dismissed with costs.
___________________________________
B
MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff
:
Mr J J
Wessels SC
Instructed
by
:
Messrs
Nonxuba Incorporated
345 Rivonia Boulevard
Edenburg,
Rivonia
JOHANNESBURG
c/o Messrs Potelwa and Company
43 Wesley Street
MTHATHA
Counsel
for the defendant
:
Mr PHS
Zilwa SC with Mr SM Luzipo
Instructed
by
:
Office
of the State Attorney
Broadcast House
Sission Street
Fortgale
MTHATHA