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[2018] ZAGPJHC 540
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M T ofo M M v Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government (20454/2014) [2018] ZAGPJHC 540 (27 September 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case
Number:
20454/2014
In
the matter between:
M:
T Plaintiff
Obo
M M
And
THE
MEMBER OF THE EXECUTIVE
COUNCIL
Defendant
FOR HEALTH AND SOCIAL DEVELOPMENT
OF
THE GAUTENG PROVINCIAL GOVERNMENT
JUDGMENT
FISHER
J:
INTRODUCTION
[1]
The plaintiff claims damages on
behalf of her minor son M, whose
brain
was profoundly injured at birth by an occurrence known
an
intrapartum hypoxic event. As a result he suffers from cerebral
palsy.
The
plaintiff alleges that this
condition
was caused by the negligent conduct of the MEC for Health: Gauteng
and specifically of the staff members of the Maternity
Unit of the
Charlotte Maxeke Hospital in Johannesburg. The Defendant disputes
that her Department is liable for the damages claimed.
It is,
however, admitted that, to the extent that it is found that
such negligence caused the brain injury to M, the MEC
is vicariously
liable for the loss sustained. The question of liability is
conveniently dealt with as a separate issue and has
been separated.
This judgment is in respect of the merits.
[2]
Cases such
as these are all too common in our courts. The MEC faces claims which
presently run into the billions of Rands and most
relate to children
who have suffered cerebral palsy at birth. It is, however, recognized
the world over that the birth process
is fraught with dangers which
may be unavoidable even with the best will, expertise, and
resources.
Lord
Denning MR observed in
Hucks
v Cole1968]
118 New LJ 469
([1993]
4 Med
LR 393)
‘
with
the best will in the world things sometimes went amiss in surgical
operations or medical treatment. A doctor was not
to be held
negligent simply because something went wrong.’
[3]
The plaintiff argues that she
does not seek to hold the MEC liable merely because of the injury.
She argues the Defendant, her Department
and/ or persons employed by
the Hospital were negligent. This negligence, she pleads, lies in a
failure to:
·
employ
medical and nursing staff to manage the Plaintiff and perform the
Caesarean section timeously, and ensure the Hospital
was
properly equipped to enable the timeous performance of caesareans if
and when required;
·
ensure
the proper and timeous assessment, monitoring and management of
patients and implement measures to prevent of deal with
complications; and
·
to
take appropriate care of the Plaintiff and in particular to timeously
perform a Caesarean section.
FACTS
[4]
The plaintiff is a Zimbabwean
citizen who lives in Zimbabwe.
She
discovered she was pregnant with M in late 2009. During her
pregnancy, the plaintiff had come to live in Johannesburg.
She
says she was looking for a job. This was her second pregnancy. Her
first child was born at Mpilo Hospital in Bulawayo, Zimbabwe,
and is
healthy. She has, since the birth of M, given birth to another
healthy child in Zimbabwe.
[5]
The plaintiff attended an
antenatal clinic in central Johannesburg. She presented herself for
antenatal care when she was already
6 months pregnant. This is
generally regarded as late to seek antenatal care. It appears,
however, that the pregnancy was progressing
normally. On 20 August
2010 the plaintiff arrived at the clinic for an antenatal check-up,
only to find it closed. She returned
a week later, on 27 August 2010,
to find it, once again, closed.
[6]
That afternoon, at around
15h00, the plaintiff started to feel lower abdominal pains which were
the early stages of labour. She
had been told by staff at the clinic
that she should attend the Hillbrow Hospital when her labour started.
She went to the Hillbrow
Hospital on the evening of 27 August 2010
and again found it closed. Early the next morning, the
plaintiff again attended
at the Hillbrow Hospital, but it was still
closed. She was told that there was a strike on.
[7]
The plaintiff then took a taxi
to the Maternity Section of the Charlotte Maxeke Hospital. She
arrived at approximately 13h00.
On admission she was found to
be 4cm dilated and her waters broke shortly after admission. She was
admitted to the labour ward,
and cardiotocographic (CTG) monitoring
was started. There was no problem noted and her labour was allowed to
progress.
[8]
It is common cause that the
plaintiff’s labour progressed normally until an abnormal CTG
reading, indicating foetal distress,
was noted at 15:45. All the
experts in the matter are agreed that an emergency Caesarean
section was thus indicated. The
decision that a Caesarean section be
performed was duly made at 16:00. The Plaintiff’s Caesarean
section was, however, delayed
until 18:15. All the experts
agree that the baby was in distress for significantly longer than is
regarded as acceptable.
It was agreed by the experts that the
outside limit would be an hour but that ,once the need for a
Caesarean section was
apprehended, the case had to be treated as one
of emergency and the surgical intervention brought to bear without
delay.
[9]
In this case it took
approximately 2½ hours (155 minutes) until the Caesarean
section commenced. There is no dispute
that the start of the
procedure was delayed because the theatre was being used for other
patients who required Caesarean sections.
[10]
There is significant agreement
between the parties’ experts in relation to the possible causes
of the cerebral palsy. It is
agreed by the expert neurologists,
Professors van Toorn and Kakaza that M has a mixed type of cerebral
palsy (being spastic dystonic
quadriplegia). They also agree that a
possible cause of a mixed type of cerebral palsy is birth asphyxia in
the peri-partum period.
The MRI report revealed a profound
hypoxic ischaemic injury pattern. There was no sentinel event ( i.e.
an event which points directly
to the cause) which could have led
acutely to the asphyxia. It was thus agreed that there was a subacute
cause of the injury.
[11]
The baby was found, at birth,
to be severely acidotic. Professor Smith, the expert Neonatologist
who testified for the plaintiff
explained the process leading to
acidosis as one which occurs when the tissues are deprived of oxygen
which leads to the cells
generating excess acid which, if allowed to
accumulate, leads to a drop in the pH of the blood. This, in turn,
can lead to an ischaemic
injury.
[12]
In essence then it is the
opinion of Prof Smith that the cause of the brain injury was the lack
of oxygen to the baby’s brain
caused by the contractions which
affected the blood flow to the baby and specifically the brain of the
baby, and which eventually
overwhelmed him. Dr Murray (nee Vollmer as
per the reports) the plaintiff’s expert obstetrician,
explained that, during
birth, a foetus will move along the
birth canal by virtue of the contractions that the maternal uterine
muscle effect on the foetus.
These contractions will occur
periodically through the labour and with greater frequency and
intensity as the baby comes to be
born. During this process the
placenta and the umbilical cord are compressed and the oxygen flow to
the foetus is temporarily
occluded. As the contraction ends,
the compression on the placenta and umbilical cord is relieved, and
the oxygen flows freely
to the baby. This is the natural birth
process.
[13]
Dr Murray explained further
that, in the time that the foetus is constricted by the contractions
of the uterine muscles, the occlusions
to the cord and placenta
affect free flow of oxygen to the foetus. This may eventually exhaust
the foetus’ reserves and ability
to cope, and he will then
succumb to the hypoxia and suffer brain injury. Dr Murray
compared this to a person in a tub of
water who is forced under water
for a time and allowed up to catch their breath periodically. This
process can be performed for
a relatively long period, but, at a
certain point, the person’s energy reserves will deplete and
that person will not be
able to catch his breath.
[14]
The defendant’s expert
paediatrician Prof Bolton agreed that the injury could have been
caused by the fact that the distress
of the baby was not alleviated
before the child succumbed to the injury. He was however of the
opinion that there could have been
other possible reasons which
rendered the baby compromised and thus unable to cope with the rigour
of the birth process in the
first place. The experts agreed
that inadequate antenatal care, as a result of late booking for
antenatal care can increase
the chances of a poor outcome The
Plaintiff had also slightly exceeded her due date when she went into
labour which is also
agreed to be a risk factor for intrapartum
hypoxia. The amniotic fluid of the plaintiff contained meconium
(which is the content
of the bowel of a foetus). The ingestion and
aspiration of meconium can lead to meconium aspiration syndrome (MAS)
which could
have contributed to the injury. Prof Bolton posited that
the cause of the cerebral palsy may have been an intra-amniotic
infection known as chorioamnionitis, which is a bacterial infection
with attendant inflammation of the foetal membranes. This condition
is associated with prolonged labour. The fact that antibiotics were
prescribed to the baby and the mother and the fact that the
plaintiff’s wound became infected some days later were
suggested to support this proposition. It was however conceded that
these aspects were inconclusive as to the cause.
[15]
Prof Bolton stated further that
such underlying problems may not have been apparent by reason of the
lack of proper ante -natal
care or at least the record of care. It is
not in dispute that the plaintiff did not seek antenatal support
until the pregnancy
was advanced and that this state of affairs was
not optimal. The defendant sought an apportionment of the damages
which was
claimed on the basis that the plaintiff’s
failure to seek adequate or timeous antenatal care could have been a
contributing
factor to the loss. This was not persisted with. In any
event, this case was not made out on the facts. There was also the
added
technical difficulty that the plaintiff was not joined to the
cause in her personal capacity.
[16]
One set of records provided by
the defendant proved pivotal to an understanding of what happened on
the day in question. This is
a record termed the “Operation
Register” which was filled in by the
attending clinicians as a contemporaneous
record of the surgeries
conducted. It records the identity and age of each patient, the date
of their admission to the surgical
ward, the attending clinicians (
i.e. surgeons, anaesthetists, and others assisting) in respect of
each patient, the type of anaesthesia
used, the type of operation
performed, the time that they were taken into theatre, the time spent
in theatre, and remarks as to
condition of the mother and baby in
each instance.
[17]
It is not in dispute that, when
the plaintiff’s emergency arose at 16h00 the theatre was
occupied as a result of another emergency.
[18]
The Operation Register read
with the related records in relation to patients treated on the day
reveals that things started to go
awry in the unit very early that
morning. At 03h35 Mrs C Munchenzi was admitted. She was to have
twins and one of the babies
was breach. There was thus no question
that she required a Caesarean section. The records show that she was
duly scheduled to have
her Caesarean section at approximately 05h00 –
the previous surgery having come to an end at 04h35. The doctor’s
notes,
however, record that the Ms Munchenzi’s surgery was
cancelled. The reason for the cancellation is recorded as being “due
to no autoclaved theatre gowns”. The Operation Register reveals
at this time that the theatre was not in use from 04h35 to
06h05 –
i.e. surgeries appear to have been held up for approximately 1 ½
hours because the unit ran out of sterilized
theatre gowns. It was
concede by Dr Chauke that this was due to mismanagement.
[19]
At 06h05 a patient was put into
theatre for a Caesarean section due to foetal distress. One must thus
assume that, by this stage,
the shortage of gowns had been resolved.
The operation lasted for an hour – i.e. until 07h05.
Thereafter, inexplicably, the
theatre was not put into use for nearly
2 ½. At 9h30 the next patient was taken into theatre,
also because of foetal
distress. This operation lasted until 10h10.
At 10h35 the theatre was put to use for another foetal distress case
which procedure
lasted until 11h40. The theatre then lay fallow
for a period of 2 ½ hours, until Mrs Munchenzi was, at last,
taken
into theatre at 14h15 to be delivered of her twins. The
delivery of the twins took until 15h20. She had been waiting to be
delivered
since the early hours of the morning.
[20]
At 15h30 another case of foetal
distress was dealt with. This was Ms D Maluleka. The admission of Ms
Maluleka to theatre at this
stage is important to this case. The
reason is that, whilst her Caesarean section was in progress the
plaintiffs emergency arose
as did that of Ms X Gumbe. The problem
with Ms Gumbe was that she had in the past had two CSs and could not
be allowed to give
birth naturally as this could lead to the rupture
of her placenta and possible death.
[21]
The doctors were thus put to
the unenviable task of having to make a choice between the well-being
of the distressed baby M and
that of Mrs Gumbe and her baby. This
process is known as “triage” in medical parlance. It
involves the assessment and
assignment of degrees of urgency in order
to decide the order of treatment. They chose Mrs Gumbe over M.
It is not suggested
by the plaintiff that they were negligent in
making this election.
DISCUSSION
[22]
A compelling case is made for
the plaintiff’s that the brain injury to the baby was sustained
due to the inordinate length
of time spent in distress. The Caesarean
section, which is agreed to be the treatment for the
alleviation distress, was not
performed for 2 ½ hours after
the distress was noted. There is no dispute that the Caesarean
section should have been performed
earlier. The fact that baby M was
compromised in the birth process is also not in dispute. The
suggestions that there were causes
other than the fact that a
Caesarean section was not performed in time to avoid the injury to
M’s brain are speculative.
This was readily conceded by Prof
Bolton.
[23]
There is but one cause proved:
the baby M was in distress for an inordinately long time. Prof Smith
is of the view that the brain
injury occurred within the last hour of
distress. This was not challenged in any real manner.
[24]
The SCA in
Minister of Safety and
Security v Van Duivenboden
[2002]
ZASCA 79
;
2002 (6) SA 431
(SCA) at [ 25] observed:
“
A
plaintiff is not required to establish the causal link with certainty
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.”
[25]
And in
Minister
of Finance and Others v Gore NO
[2006] ZASCA 98
;
2007 (1)
SA 111
(SCA) at [ 33] the SCA
held:
“
Application
of the ‘but-for’ test is not based on
mathematics, pure science or philosophy. It is a matter
of
common sense, based on the practical way in which the ordinary
person’s mind works against the background of everyday
life
experiences.”
[26]
To my mind, on a
conspectus of the expert testimony, the plaintiff has established
that it was the delay in performing the Caesarean
section which
caused M to sustain the injury which resulted in the cerebral palsy
from which he suffers.
[27]
The defendant argues
that, even accepting that the delay was the cause, the doctors
and staff cannot be faulted for
choosing to attend to Ms Gumbe
first as her condition was the more serious in relation to the
possible risks ( ie the death of
the mother and possibly also the
baby). This is not disputed by the plaintiff.
[28]
The plaintiff counters
however that there should have been a fall-back resource provided.
There was only one operational theatre
and one theatre team
available. The plaintiff suggests that there should have been two.
There is another theatre structure available,
but the indications are
that it was not in use at the time. She suggests also that the
obstetricians on call could and should
have been mobilised and other
theatre facilities sourced. The plaintiff raised whether the
hospital’s decision to operate
only one theatre at the time was
reasonable.
[29]
The defendant called Dr
Chauke to testify in relation to the running of the gynaecology and
obstetrics unit at the hospital. He
is the current clinical head of
the department. He testified as to the numbers of patients undergoing
Caesarean sections at the
hospital during 2010. It was his
opinion that two theatres were not justified because of the cost of
employing additional
professional staff to operate a second theatre.
[30]
Dr Chauke went on to
testify, that at present, although two theatres are now operational
in the unit during normal operating hours,
after 16h00 on weekdays
and on the weekends only one theatre is operational. Thus if
two emergencies now arose simultaneously
, he and his staff would
still have make a judgment call as to which patient should be
prioritised, and the second theatre would
not be opened as there
would still be no team available to run a second theatre in the case
of such emergencies. The extra staff,
he testified, were not
budgeted for.
He
testified further as to the severe challenges which are experienced
in the South African hospital system. It is not disputed
that there
is a severe lack of resources and attendant budgetary constraints. I
heard tell of the fact that our hospitals must
be available to many
who are not citizens of South Africa and even of a practice of some
to travel from neighbouring countries
to South Africa for the express
purpose of giving birth in what are regarded as preferable
conditions.
[31]
On the evidence at hand,
I am unable to make a determination as to whether the allocation of
resources was a proper one in relation
to the department in issue.
The task of budgetary prioritisation is indeed a complex political
and social issue. It involves the
implementation of utilitarian
political and social theories and reference to distributive justice.
[32]
This dilemma is
highlighted in the case of
Soobramoney
v Minister of Health (Kwazulu
-
Natal)
(CCT32/97)
[1997] ZACC 17
;
1998 (1) SA 765
(CC);
1997 (12) BCLR 1696
(27 November 1997) where the Constitutional Court was faced with
deciding the proper allocation of resources in a case where
potentially
lifesaving dialysis treatment had been denied Mr
Soobramoney who was suffering from acute renal failure, on the basis
of a lack
of resources. In construing sections 26 and 27 of the
Constitution
[1]
Chaskalson P held as follows at [11]:
“
What
is apparent from these provisions is that the obligations imposed on
the state by sections 26 and 27 in regard to access to
housing,
health care, food, water and social security are dependent upon the
resources available for such purposes, and that the
corresponding
rights themselves are limited by reason of the lack of resources.
Given this lack of resources and the significant
demands on them that
have already been referred to, an unqualified obligation to meet
these needs would not presently be capable
of being fulfilled.
This is the context within which section 27(3) must be construed.
”
The
learned Judge went further and stated the following:
“
The
provincial administration which is responsible for health services in
KwaZulu-Natal has to make decisions about the funding
that should be
made available for health care and how such funds should be spent.
These choices involve difficult decisions
to be taken at the
political level in fixing the health budget, and at the functional
level
in deciding
upon the
priorities
to be met. A court will be slow to interfere with rational
decisions taken in good faith by the political organs
and medical
authorities whose responsibility it is to deal with such matters.”
[33]
To my mind, the picture that
emerges from the records in this instance is not one of a
misallocation or lack of resources,
but rather of a mismanagement of
the available resources.
[34]
The treatment of Ms
Gumbe assumes importance in this regard. Ms Gumbe told the
attending clinicians that she had experience
lower abdominal pain
from 03h00 on the day in question. It is not clear from the records
when Ms Gumbe was admitted to the hospital
but it is recorded that
she was first examined at 09h50. At this time, it was already
clear that she needed a Caesarean
section. By 15h55 (some 6 hours
later) she was fully dilated and her membrane was bulging. She thus
needed emergency surgery. At
this time the plaintiff was also in need
of emergency surgery, but she had to wait for surgery to be performed
on Ms Gumbe who
was operated on from 16h45 to 17h55. All the while
baby M was suffering distress.
[35]
Thus, the argument that
the doctors and other staff of the hospital are not at fault as there
was proper triaging of the plaintiff
and Ms Gumbe, loses sight of the
manner in which the unit was managed on the day in question. Had the
theatre been put to use efficiently
on the day, the bottleneck
which led to the delay would not have occurred. In essence,
like that of Ms Munchenzi, the
labour of Ms Gumbe was
allowed to progress over many hours notwithstanding that there was no
question that her Caesarean
section had to be performed as soon as
possible and notwithstanding that the theatre was open for long
periods leading up to the
collision of the two dire emergencies.
[36]
The proper approach for
establishing the existence or otherwise of negligence was formulated
by Holmes JA in
Kruger
v Coetzee
1966 (2) SA
428
(A)
Holmes
JA stated as follows at 430 E-G:
“
For
the purposes of liability culpa arises if—
(a)
a diligens paterfamilias in the position of the defendant—
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
.
. .
Whether
a diligens paterfamilias in the position of the person
concerned would take any guarding steps at all and, if
so, what steps
would be reasonable, must always depend upon the particular
circumstances of each case. No hard and fast basis
can be laid
down
.”
[37]
In
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and
Another
[1999]
ZASCA 87
;
2000 (1) SA 827
at [19], the Court stated:
“
It
should
not be overlooked that in the ultimate analysis the true criterion
for determining negligence is whether in the particular
circumstances
the conduct complained of falls short of the standard of the
reasonable person. Dividing the inquiry into various
stages, however
useful, is no more than an aid or guideline for resolving this issue.
. . . It is probably so that there
can be no universally
applicable formula which will prove to be appropriate in every case.
. . . [I]t has been recognised
that while the precise or exact
manner in which the harm occurs need not be foreseeable, the general
manner of its occurrence must
indeed be reasonably foreseeable.”
[38]
In
Pitzer v Eskom
[2012]
ZASCA 44
; JOL [2012] 29007 (SCA) at [ 24] the Court stated:
“
What
is or is not reasonably foreseeable in any particular case is a
fact bound enquiry. . . Where questions that fall
to be
answered are fact bound there is seldom any assistance to be had from
other cases that do not share all the same facts.”
[39]
The defendant argued
that, in order for the Plaintiff successfully to rely on the
non-usage of the theatre at the times indicated,
she would have to
prove that a reasonable doctor managing the unit would have foreseen,
at the times of the non-use, that later
in the day (at 16:00) she
would decide that a Caesarean section should be performed on the
Plaintiff.
[40]
I disagree. The inquiry
in this matter is less specific. When one is dealing with a facility
that is set up for the purposes of
attending to emergency cases and
there is one working theatre, one would expect that cases which are
not pressing would be attended
to so as to free up the theatre for
possible dire emergencies. This seems an elementary feature of
triage. The fact that
available facilities were compromised by strike
action is something that should have made the staff even more alert
to the need
to clear backlogs and attend to available cases as
efficiently as possible so as to free up the resources for possible
incoming
emergencies.
[41]
Liability for wastage of
resources cannot always be connected causally to the injury suffered.
It this case one can, however, see
a direct link between failure to
treat patients efficiently throughout the day in question and the
injury that occurred.
It was indeed foreseeable that if the
theatre facility was not used optimally, it may not be available to
the most urgent cases
which may arise or come in. The possibility of
such cases arising was not remote. Indeed the nature of the unit was
such that it
held itself to be primed and ready for such
eventualities. The staff were aware that there were two cases already
admitted where
labour was being allowed to progress under
circumstances where this was clearly not indicated treatment in
that they could
not be allowed to give birth naturally.
CONCLUSION
[42]
The staff of the unit
neglected to treat Ms Gumbe timeously thus contributing to the dire
emergency which arose as a result
of her labour being allowed
to progress over the day to a point where she was in grave
danger and had to be preferred over
other emergency patients.
This poor management led directly to the delay in attending to the
plaintiff with the resultant
injury to baby M.
[43]
I
thus find that those responsible for managing and staffing the
Maternity Unit were negligent in not seeing to it that the facility
was not managed in a manner which would have rendered the theatre
available to the plaintiff sooner than occurred. It is not in
dispute
that the defendant is vicariously liable for their conduct.
ORDER
[44]
I
thus make the following order:
i)
The
defendant is liable for any damages that are proved or agreed to be
due to the plaintiff in her capacity as parent and natural
guardian
of M.
ii)
The
costs of the determination of this issue are to be borne by the
defendant.
______________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG
DIVISION, JOHANNESBURG
Date
of Hearing:
17
August 2018.
Judgment
Delivered:
27
September 2018.
APPEARANCES:
For
the Plaintiff
:
Adv W Munro.
Instructed
by
:
Wim Krynauw Attorneys.
For
the Defendant
:
Adv Vas Soni SC.
Instructed
by
:
The State Attorney.
[1]
“26. Housing
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of this right.
(3) . . . .
27. Health care,
food, water and social security
(1) Everyone has the right to have access to–
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
(3) No one may be refused emergency medical treatment.”