IK obo KK v MEC for Health, Gauteng Province (28516/16) [2018] ZAGPJHC 580 (8 October 2018)

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[2018] ZAGPJHC 580
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IK obo KK v MEC for Health, Gauteng Province (28516/16) [2018] ZAGPJHC 580 (8 October 2018)

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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
28516/16
In the matter
between:
I
K obo K
K
Plaintiff
and
THE
MEC FOR HEALTH, GAUTENG
PROVINCE
Defendant
J U D G M E N T
VAN
DER LINDE, J
:
Introduction
[1]
This is an action in which
a mother sues the defendant on behalf of her firstborn son, K, for
him (and her) having suffered damages
as a result of his having been
born with cerebral palsy. After some initial uncertainty, the parties
agreed and I ordered in terms
of rule 33(4) that all issues arising
between them on the pleadings, except causative negligence, be
stayed.
[2]
When the case was opened,
the parties handed bundles that were subject to proof. They agreed
that only the medical records contained
in items 4, 5, 6, 7, 9 and 10
of exhibit “E” (pages 7 – 81; 83 – 161) are
what they purport to be, but
not that their contents were true. For
the rest, there was no agreement as to the status of the bundles
although, as will appear
shortly, at the end of the plaintiff’s
case this was resolved.
[3]
It was also agreed between
the parties that only documents referred to in the
viva
voce
evidence would
form part of the record before the court. This is not unimportant
since the documents that were ultimately by agreement
placed before
the court were substantially more voluminous than those to which
reference was made in the
viva
voce
evidence.
[4]
The plaintiff’s case
was built on the
viva
voce
evidence of
herself, Dr Kara, a paediatrician, Ms Fletcher, an expert in advanced
midwifery, and Dr Ebrahim, an obstetrician and
gynaecologist.
[5]
At the end of the
plaintiff’s case Mr McKelvey, who acted for her, recorded
without objection that the parties had agreed
exhibit “A2”,
a document headed “Admissions” and containing three
admissions; that the reports at exhibit
“B item 4” (Ms
Fletcher), “B item 5” (Dr Kara) and “B item 7”
(Dr Ebrahim) were to be considered
properly proved; that they had
further agreed exhibit “B item 1”; exhibit “D item
2” (joint minute of gynaecologists)
and “D item 3”
(joint minute of paediatricians); and that the following pages in
exhibit “E” were accepted
as being true (thus further
than they had previously agreed in respect of this exhibit):
10, 11, 12, 17, 41, 46, 66 to 69,
91 to 110. During the course of the
plaintiff’s evidence extracts from the textbook of Prof Volpe
were received as exhibit
B1, pages 1 to 10.
[6]
The defendant’s case
comprised of Dr Modise who is the clinical manager at the Jubilee
Hospital where the plaintiff’s
baby was born and who was called
as a factual witness; Sister Beauty Ntjana, an advanced midwife who
has diplomas in Nursing and
Midwifery, and who was the sister that
delivered the plaintiff’s baby; Sister Kalibbala, also an
advanced midwife and who
came on duty on the morning of 8 January
2013 at 07:00 after the baby was born at 04:50 on that morning; Dr
Koll, a specialist
obstetrician and gynaecologist; Professor Cooper,
a paediatrician with neonatology as a sub-speciality; and finally Dr
Zikalala,
a paediatrician who attended on baby K upon his readmission
to the Jubilee Hospital on the afternoon of 10 January 2013.
[7]
Finally, by way still of
introduction, the broad factual outline and the issues that arise in
this case may be recorded.  On
7 January 2017 the plaintiff went
to a clinic because she was experiencing pains consistent with
approaching labour, and her water
had broken.  Her blood
pressure was recorded as being high and so she was referred to the
Jubilee Hospital for the birth.
She was admitted to the Jubilee
Hospital later that evening where her blood pressure was recorded as
still being high.
[8]
She was taken into a ward
where her vital signs and those of her foetus were monitored. Her
baby was born the next morning, 8 January
2013 at 04:50.
[9]
The focal point of the
evidence of the plaintiff was the lack of proper monitoring of the
foetal heart rate (“FHR”).
Her case was that between
02:30 and 04:40 on 8 January 2013 the FHR was not monitored and
recorded every half an hour as it should
have been.
[10]
The hospital records
concerning the condition of the baby upon birth reflect that he was
normal.  His so-called Apgar scores
(an acronym for appearance,
pulse, grimace, activity and respiration, a generally accepted
measure of the physical condition of
a newborn infant, in which a
score of ten is the highest) were 8/10 after one minute and 10/10
after five minutes.
[11]
Also, the assessment of
the baby at a more comprehensive level in the document headed “First
examination of neonate”
(exhibit E page 28) showed that all his
responses were normal.  According to the hospital records he was
put on breastfeeding
at 09:30 on his first day of life, and was
feeding well. It seemed accepted all round among the experts that
these records, if
true, were inconsistent with a pre-delivery insult
of the kind that would have led to the cerebral palsy that had
occurred here.
[12]
The plaintiff and baby K
stayed in the hospital for the rest of 8 January 2013 and also on the
next day, 9 January 2013, until the
afternoon after 14:30 when the
plaintiff and the baby were discharged.  The baby spent the
evening of 9 January 2013 with
the plaintiff and her mother and
shared their bed that night.
[13]
The next day, 10 January
2013, at around 13:00 the baby presented with what the plaintiff
called “
bubbling
”
at the mouth and making strange, cycling movements with his arms.
This was interpreted by the experts for the plaintiff
as representing
convulsions.  Whatever it was, the plaintiff and her mother
arranged to be taken back to the hospital where
in the course of the
late afternoon or early evening the baby was readmitted.
[14]
Upon readmission his
temperature was recorded as being 45°C, a level which the experts
described as being incompatible with
life, and a pulse rate of 229
bpm.  Dr Zikalala recorded too that the baby was fitting and
said that she treated that condition.
[15]
Some preliminary
assessments were made concerning his condition, including that he had
meningitis; but in later days he was diagnosed
with having suffered
an acute profound hypoxic ischaemic encephalopathy (“HIE”).
This diagnosis is common cause,
and also that this has led to the
cerebral palsy.
[16]
The parties are therefore
agreed that the baby suffered an acute profound HIE and consequently
cerebral palsy. The issue between
them is whether the insult that
caused this had occurred before the birth, as the plaintiff
contended, or whether this had occurred
after the birth, as the
defendant contended.  The defendant contended also that even if
the HIE had occurred before birth,
there is no sufficient evidence,
if any, to show that the resultant cerebral palsy could have been
avoided.
[17]
I now deal with the
evidence of the witnesses to whom I have referred, in so far as it is
relevant to the issues to which I have
referred.
The
plaintiff
[18]
The plaintiff is 25 years
old not employed, and a level 4 scholar with ABET.  She fell
pregnant in 2012 while still at school
and attended the new Eersterus
Clinic. It was her first pregnancy. When at the end of her term she
was about to give birth she
went to the Refentse Clinic. She started
experiencing birth pains at about 16:00 on 7 January 2013 and at
around 18:00 her water
broke. She then went to the clinic at about
21:00 with her mother and her aunt.
[19]
Her blood pressure was
taken and was found to be high.  She was told she could not give
birth at the clinic given her high
blood pressure and had to go to
the Jubilee Hospital.  She was given a yellow pill but she did
not know what it was for.
I interpose to point out that Dr Koll
later said in cross-examination that it appeared that she was given
medication for high blood
pressure at the clinic and that any further
medication for high blood pressure at Jubilee Hospital before the
delivery of her boy
was contra-indicated.
[20]
She arrived at the Jubilee
Hospital at about 23:30 and was taken to the labour ward.  She
was checked in and her blood pressure
again taken and other
examinations relating to the progress of the birth process were
done.  She was asked to lie on her left-hand
side and a belt was
put around her stomach which she understood would be used to check
the FHR.
[21]
She says that she was
checked from time to time by the nurse who would check the readings
of the belt that had been put around her,
her blood pressure, and
would perform vaginal testing. At around 03:00 on 8 January 2013 the
belt around her was removed –
implying that it was not
re-attached - and she was told to go to the next room; she says she
walked there.  In that room she
waited for a while and a sister
came who did vaginal tests and who called another sister. Together
they started telling her to
push.
[22]
One of them pushed her
stomach and the other one was at her feet supervising the birth
process.  The baby was then born at
04:50. She saw him; he did
not open his eyes nor did he cry.  He was taken away; she does
not know where.  She was then
stitched up and at around 07:00 a
doctor and a student nurse visited her. They checked her and told her
to go to the toilet to
urinate.  She came back, and says that
she fainted.
[23]
She was then taken to the
maternity ward.  The baby was only brought to her later that day
at 14:00.  She said he was
a quiet baby. She fed him.  He
suckled “
a little
bit”
(her
description) and fell asleep.  She fed him later on the same day
and again he suckled “
a
little bit
” and
fell asleep.  She said she could not say how much he suckled. He
woke up at night and again he suckled and fell
asleep again.
[24]
She said he started
“
giving problems”
the next morning before 08:00 when he woke up; he started crying and
did not want to be breastfed.  She thought she noticed
a small
wound under his tongue and asked a student nurse about it and about
him crying nonstop.  The student nurse sent her
to a qualified
nurse who looked at the baby and said there was no problem with him.
They were discharged later that day at
14:30 and left at 15:00.
She said the baby was then crying nonstop and did not want to feed.
[25]
When she got home the baby
would cry, then be quiet, then cry again, and this went on through
the night.  She said she wanted
to feed him but he would not
suckle.  At about 13:00 the next day he was making “
bubbles
”
around his mouth and strange movements with his arms.
[26]
The plaintiff and their
mother arranged transport and at around 16:30 on 10 January 2013 the
baby was readmitted to the Jubilee
Hospital.  There he stayed
until 23 January 2013.  There was initial uncertainty about the
diagnosis; she was told that
he had meningitis but another doctor
said that he had birth asphyxia.
[27]
The baby is now 5½
years old, but cannot talk nor walk.  His head appears loose on
his shoulders and he cannot feed
himself.
[28]
Cross-examined, she said
that the nursing staff treated her well at the clinic and on arrival
at the Jubilee Hospital her blood
pressure as checked. She accepted
that she could not give birth with the belt on her body and so it was
removed prior to birth.
It was put to her that Sister Ntjana
says the belt was removed at 04:40 and she disputed this saying it
was removed at 03:00.
It was put to her that in his report Dr
Kara said that the baby sucked well and that he could only have
obtained this information
from the plaintiff; but she insisted that
the baby only suckled “
a
little bit
”.
[29]
Later in her
cross-examination when paragraph 2.3 at exhibit “B” page
28 of Dr Kara’s report was put to her, where
he said that in
the afternoon the baby looked well and “
sucked
well
”, she
agreed with the proposition that he sucked well but said that this
was only for a short space of time.  She said
that when she
arrived home with the baby after discharge from the hospital in the
afternoon of 9 January 2013 the baby did not
then make the strange
movements with his arms.
[30]
As to when she first
breastfed the baby, which according to the hospital records was 09:30
on the 8
th
,
she persisted that this was untrue, and that she only did this at
about 14:00 on that day.  She also said that at birth there
were
two sisters and not only one assisting her.
[31]
In conclusion, regarding
the plaintiff’s evidence, I should record that generally she
made a favourable impression. I got
the distinct impression that she
was completely honest, and trying to be as accurate as she could.
Having said that, I am not persuaded
that she gave reliable evidence
as to the extent to which her baby cried. When she brought the crying
to the nurse’s attention,
she was apparently assured that the
crying was not out of the ordinary. This was her first baby, and she
would likely have been
over-anxious about him; the nurse would have
seen many.
Dr
Yetish Kara
[32]
The witness has been
practicing as a paediatrician for 22 years. He confirmed his expert
report (exhibit B, item 5). In preparation
for his report, he had
studied the medical records, the plaintiff’s health card, the
maternity case records (but not the
neonatal records); and had
interviewed the plaintiff and examined baby K. He received the
neonatal records only on 10 August 2018,
but these did not change his
opinion. He engaged also with Prof Cooper for the defendant; he
thought he may have seen Prof Cooper’s
initial report, but was
certain that he saw his addendum report.
[33]
It was common cause that
baby K suffered from cerebral palsy. He explained that cerebral palsy
is an insult to the developing brain,
leading to a non-progressive
injury. It leads to impairment of the motor function and varies from
gross to fine. Speech and cognitive
function may also be impaired but
not necessarily intellectual function.
[34]
Baby K presented with
dyskinetic cerebral palsy, meaning abnormal movements. He was stiff,
with brisk reflexes. He also presented
with microcephaly, meaning
although his head was normal sized at birth, it was now small.
[35]
In his view the cause of
the cerebral palsy was HIE, and this was confirmed by the objective
evidence presented later by the MRI
scan. The medical narrative of 10
January 2013 is consistent with HIE. His temperature is there
recorded as being 45°C, so
high that it is inconsistent with
life. No measures were taken to reduce it.
[36]
Yet the baby presented
with blue legs, and that is inconsistent with a baby who is feverish.
In his view the temperature of 45°C
is thus an inaccurate
recordal. The recordal at exhibit E page 110 that the baby was
lethargic, groaning and foaming is consistent
with encephalopathy.
[37]
The initial assessment was
either broncho-pneumonia, meningitis, or sepsis. This was reasonable.
But tellingly the plan did not
include lowering the temperature of
the baby. The recordal at 21:30 on exhibit E page 109 of “cycling
movements” reflect
a subtle convulsion. When the laboratory
results came, these reflected that he was dehydrated, and also a
significant kidney injury.
But they did not reflect an overwhelming
infection, and the spinal puncture confirmed no evidence of
meningitis.
[38]
The search for the cause
of the injury thus went back to earlier in time. There was no
evidence up to 7 January 2018 to support
the injury. The baby’s
condition was good then. So it was common cause that there was no
insult before labour on 7 January
2013, and yet by 10 January 2013
the injury had occurred. In the witness’ opinion the injury
occurred before delivery, and
not only after delivery, at home, as
Prof Cooper contended.
[39]
There was only evidence of
hypertension and grade I meconium. This could occur if the foetus is
compromised, but it could also be
normal. The plaintiff’s blood
pressure at 21:00 on 7 January 2013 (exhibit E page 41) was high –
172/98 and 190/100
at 21:30. This was not mild. But an obstetrician,
not a paediatrician such as he was, should opine on this.
[40]
As to delivery of the
baby: there was no record of the monitoring of the FHR after 03:00 on
7 January 2013. It should have been
done every 30 minutes. The last
record was 02:30. The dyskinetic cerebral palsy suggests that the
injury occurred during labour.
[41]
The witness said that if
the FHR reflected distress in the last 30 minutes before birth, there
was little that could be done then.
Contractions of the mother
usually means no oxygen to the baby. The longer the contractions, the
longer the baby is without oxygen.
In the normal course this is no
problem as the baby recovers completely. But it is the total cut off
of blood to the baby that
causes the injury.
[42]
As labour progresses, the
contractions are longer, the oxygen deprivation is longer, and the
foetal recovery less each time. Birth
then relieves the deprivation.
Sub-acute hypoxia is detected by monitoring the FHR. If the heart
fails, it cannot pump blood to
the brain. The lack of circulation
(ischemia) at that time is actually more important than the lack of
oxygen.
[43]
In this case, there was no
singular, sentinel event. There was a slow building up of a deficit
and then a sudden acute profound
injury to the foetus. But it is not
possible to say when the final injury actually occurred. The baby’s
Apgar scores at birth
were good, militating against an injury having
occurred by then. But Apgar scores are subjective (exhibit E page
29). And the baby
was given oxygen at birth, a point of concern. That
places a question over the validity of the Apgar scores. The bloods
done on
10 January 2013 support the conclusion of renal injury.
[44]
In the witness’
view, an injured baby would have needed oxygen, would have an
abnormal muscle tone, would not cry, and would
have convulsions. He
would have expected a floppy baby. He therefore is critical of the
Apgar scores. An injured baby can be treated
within six hours of
birth, and this could minimise on-going damage.
[45]
Convulsions would normally
exhibit within the first six hours. But if the injury is HIE, then it
usually presents within the first
three days. Convulsions are not
always visible, because they may be occurring in the brain. A jittery
baby may not necessarily
be having convulsions.
[46]
The Apgar scores here do
not point to an intrapartum event. The first examination of the
neonate appears normal, suggesting nothing
happened intrapartum. And
the witness accepted that if the first examination of the neonate as
reflected at exhibit E page 28 (“First
examination of neonate”)
is correct, then his opinion is wrong.
[47]
The witness relied on Prof
Joseph J Volpe, Professor Emeritus of Harvard Medical School and
editor in chief of Volpe’s Neurology
of the Newborn, sixth
edition (there are six editors), an acknowledged doyen in this field,
for the proposition that to conclude
that an acute profound HIE had
occurred, one needs evidence of foetal compromise, an overt
neurological event, within the first
24 hours of life.  In the
previous edition of his book, he apparently said “days”,
not 24 hours.
[48]
An extract of this text
book was received as exhibit B1 pages 1 – 10. This was
comprised of the cover page of the text book,
and pages 283 –
292, and pages 512 – 514. At page 514 the authors write:
“
With regard to the most
severe form of neonatal encephalopathy, occurring in 20% of HIE, a
clear evolution has been documented.
Although the temporal evolution
of the neurological syndrome is more complex in the infant undergoing
therapeutic hypothermia because
of sedation and response to
hypothermia, the principles remain unchanged.
In the first six hours after the
insult, signs of presumed bilateral cerebral hemispheral disturbance
predominate. The severely
affected infant is either deeply stuporous
or in coma (i.e. not arousable and minimal or no response to sensory
input). Periodic
breathing, or respiratory irregularity akin to this
pattern, is prominent…
Clinical seizure-like activity
often occurs by 6 to 12 hours after birth in approximately 50% to 60%
of the infants who ultimately
have seizures. A major challenge occurs
in the correct clinical recognition of seizures.”
[49]
There was no monitoring
here of the baby in the first 24 hours of life; but the baby not
crying and sucking poorly are evidence
of such overt events,
signifying the presence of a neurological event having occurred.
There is no evidence of an injury having
occurred after birth; there
is no evidence of an injury having occurred before labour; and
therefore inferentially the highest
risk period during which the
injury occurred, was in labour.
[50]
There was no assessment of
the crying of which the mother complained. The witnesses had recorded
in his report that the baby’s
sucking was reported by the
mother to have been good, ostensibly in conflict with his evidence
that one would expect the baby’s
sucking to have been poor if a
HIE event had occurred before birth. But the witness explained that
it is possible that the sucking
was good initially and thereafter
became poor – that does not exclude his thesis of an
intrapartum insult.
[51]
The witness could not say
whether it was appropriate to have discharged the mother and baby
when they were discharged. The mother
said that the baby cried a lot
on 9 January 2013, and that there was a sore under his tongue.
[52]
The witness said that the
signs of bubbling that the mother reported, and the cycling
movements, were signs of HIE worsening after
24 hours of life. On
readmission on 10 January 2013, the signs of HIE were clear.
[53]
As to whether baby K’s
injury could have occurred after birth, the witness said such events
are inclined to occur with premature
babies, not term babies, as baby
K. There would have to have been some catastrophic event, so
catastrophic that the baby would
have required resuscitation. Such
events are prevalent in babies with respiratory or cardiac problems.
[54]
Had such an event occurred
and had no-one been present to assist the baby, the baby would have
died; he would not have been able
to right himself. Yet even by 10
January 2013, there was no record of resuscitation, and so the injury
must have occurred before
delivery.
[55]
On exhibit E page 42 there
was a recordal in the medical records of 3+ caput and a call to a
doctor to assess it; but no record
of any assessment having been
done. And yet the partogram says there is no caput, reflecting poorly
on the accuracy of the partogram.
There is also record of the baby
being fed, but that could have been a reference to a feed being
given, and not a breast feed,
said the witness.
[56]
The fact that HIE was only
diagnosed three days later is no problem for the diagnosis of that
condition. The MRI scan does not time
the occurrence of the injury.
Generally when one refers to an HIE injury, the default position is
that it occurred intrapartum.
The investigations at exhibit E pages
103, 104 are perfectly reasonable, but there is no suggestion that
the injury had occurred
after birth. There is reference to a “flat”
baby, and this is inconsistent with a high Apgar score. At exhibit E
page
103 the records of 16 January 2013 create the impression of HIE;
at exhibit E page 102 there is reference to HIE stage II. See also

exhibit E pages 101 and 93.
[57]
The diagnosis of “birth
asphyxia” means the injury had occurred during labour. Prof
Cooper initially said that the injury
had occurred on 15 January
2013. The witness (Dr Kara) accepted that he could not say precisely
when the injury had occurred, but
opined that it was likely after
02:30 on the morning of 7 January 2013. The Apgar score is
inconsistent with the mother’s
evidence and with the doctor’s
observations a few days after birth, i.e. that of a “flat”
baby. The witness said
that in his view there is an 80% probability
that the injury was caused by foetal distress.
[58]
Cross-examined, he said
that if the recordal of the FHR up to 02:30 was correct, then the
injury occurred between 02:30 and 04:50
(when the baby was born). To
assess foetal distress, one needs to know what the FHR is. Although
the nurse recorded “absence
of foetal distress” she had
no record of the FHR during those hours. But he agreed that the
records show that the FHR was
present and was not distressed. He
agreed too that if the nurse was correct, that would undermine his
opinion.
[59]
He accepted that
dyskinetic cerebral palsy could occur after delivery. A damaged
placenta too could contribute to an acute profound
injury, and here
no placenta histology was done. Nor could he say whether one should
have been done. An injury could have occurred
in a drowning incident.
In a child, the brain is more resistant to injury from convulsions.
[60]
It was put to him that
Prof Cooper said that the injuries were caused by the convulsions,
but the witness could not say whether
this was so. He did not
consider the convulsions as a cause of the injury, because the MRI
scan reflected HIE. It does not reflect
a stroke, or a bleed, or an
infection. The issue is whether the convulsions were there before or
after the HIE. There is no evidence
of what caused the convulsions.
It must have been the HIE.
[61]
He thought the convulsions
exceptionally unlikely as a probable cause; Prof Cooper however
considered that they were the cause.
One could suggest a category of
time when the injury occurred. In his view, the injury occurred
during labour, because of the type
of cerebral palsy; the inaccurate
Apgar scores; and the MRI scan. He said Prof Cooper did not consider
these aspects.
[62]
He accepted that there was
no description of a “flat” baby immediately after birth.
This description only came later.
He considered that there was no
evidence of the foetal well-being between 02:30 and 04:50, and yet
the guidelines require that
the FHR is to be checked every 30
minutes. But he conceded that this topic was best discussed by an
obstetrician.
[63]
Even if exhibit E page 24
is accepted as correct – that there was no foetal distress –
his views would not change, because
the nurse did not record the FHR
during the critical time.
[64]
It was put to the witness
that the usual features of an injury before birth are a low Apgar
score; resuscitation to initiate breathing;
inability to suck; an
incubated baby; a recordal that the baby was not well; and delayed
immunisation of the baby.  He agreed
but said that immunisation
is delayed till discharge. He accepted that it was improbable that
the baby would have been discharged
the following day, as he was, if
he was injured.
[65]
The witness said that the
six hour period after birth was a window during which one could
influence the consequences caused by HIE.
Also, if the injury
occurred during the two hours before birth, the consequences of the
injury could be reversed. The witness accepted
that this baby did not
present the usual picture of injury before delivery, and that there
were inconsistencies.
[66]
It was put to him that
Prof Cooper would say that oxygen could be administered to a baby
with cyanosis, and he accepted it. But
he said this is done to
resuscitate a baby. He accepted that a good Apgar score militates
against his conclusion, as did the evidence
that he baby sucked well.
He persisted in saying that the administering of oxygen is unusual if
everything is normal, irrespective
of the colour of the baby.
[67]
He queried the Apgar
scores because the mother said that the baby did not cry but gave a
grimaced response. That is inconsistent
with a healthy cry. He
accepted that he was told by the mother that the baby sucked well,
and that he did not query that.
Ms
Fletcher
[68]
The plaintiff’s next
witness was Ms Fletcher, an expert midwife. In her view the care and
management of the mother and baby
were suboptimal. This applied to
the foetal condition during labour. There was no monitoring after
03:00; the monitoring of labour
was substandard.
[69]
The plaintiff’s
treatment at the clinic before her hospitalisation was appropriate.
She had hypertension and extremely high
blood pressure. That is why
she was referred to the hospital for delivery of the baby. At that
stage the FHR was normal at 128.
High blood pressure of the mother
can lead to seizures and placenta rupture, which could result in
diminished blood flow to the
baby. If that occurs, oxygen supply is
compromised, causing foetal distress.
[70]
The FHR at exhibit E page
42 was recorded as 158 bpm. This was still within normal bounds. When
the mother contracts, the FHR goes
up or down; but it should remain
more or less within the same baseline. Also present were meconium
stains, higher grade I; this
can be a sign of distress. The nurse
must therefore monitor the FHR diligently.
[71]
The reference to “3+
caput” is a reference to fluid which is formed at the top of
the baby’s head when the head
is pressed down into the cervix.
There is then pressure on the baby’s head and the “3+”
means it was quite noticeable.
The measurement can be subjective.
[72]
She said that when one is
concerned about oxygen supply to the foetus, one might ask the mother
to lie on her left hand side. It
is believed that blood flow to the
uterus is thereby improved. It is done as an intra-uterine
resuscitation. The remark “for
doctor to assess” was very
appropriate, given the high blood pressure of the plaintiff. She was
not given any medication
for her blood pressure.
[73]
The plaintiff was already
in active labour at the clinic, at 4cm dilation. At the hospital it
was 6cm. There are three stages of
labour. The first stage is divided
into a latent phase and an active phase. The latent phase commences
when there is a suspicion
of contractions, and the cervix starts to
dilate. This phase covers zero dilation to 4 cm dilation. The active
phase covers 4 cm
dilation to 10 cm dilation. Contractions are more
frequent in this period. During this, the active phase, the FHR must
be monitored
every 30 min.
[74]
The second stage of labour
is when the cervix is 10 cm dilated, and the mother feels the urge to
push. In the third stage of labour
the baby is delivered and so too
the placenta.
[75]
The plaintiff was
high-risk because of her high blood pressure. She should have had CTG
(cardiotechnograph) monitoring continuously.
Her uterine contractions
should also have been checked every 30 minutes.
[76]
The CTG monitoring is done
by placing a belt around the abdomen; it picks up the FHR. A second
belt is placed around the abdomen,
lower down, to monitor the
contractions. The FHR is monitored both before and after
contractions, so as to pick up the variability
and decelerations,
especially after contractions. If it drops more than 15 bpm and does
not recover quickly, then blood flow and
thus oxygen supply to the
foetus are reduced.
[77]
In this case the FHR was
measured not before but only after contractions. No decelerations are
recorded, and since there was no
monitoring before contractions, one
cannot see if there was variability. The liquor was unstained by
meconium. Her blood pressure
was high. If the liquor was meconium
stained, we would indicate this with “m”. If blood
stained, “B/S”
would be used; if blood and meconium,
“B/M”.
[78]
Meconium, evidence of the
baby having passed stool in the uterus, is a sign of distress. At
03:00 the plaintiff was only 9 cm dilated.
This crossed the alert
line, and the witness would have called the doctor. If the nurse was
an advanced midwife, she could herself
have done a vaginal
examination to see what the progress was; it would not have been
necessary under those circumstances to have
called the doctor. But
the crossing of the alert line is concerning.
[79]
The witness regarded the
blood pressure as being very high. It was recorded hourly and at
03:00 it was 200/100. But the recordal
stops at 03:00. As to the
plaintiff’s evidence that she was moved: it could be that she
was in ante-room and then moved to
the labour room. But even if she
was, she should have been monitored there on the same basis as
before.
[80]
The reasons why the
witness considered that the monitoring was substandard were the
absence of a CTG record, and no record of the
FHR monitoring after
03:00.
[81]
She did not understand the
reference to resuscitation at exhibit E page 24, and would want to
know why the Apgar scores do not indicate
the need for this. The
placenta was recorded as normal. The perineum was not intact, and had
to be sutured.
[82]
Cross-examined, she said
that the failure to record the FHR was the problem as she saw it. She
agreed that not recording something
did not mean that it was not in
fact done. But in her profession, what has not been recorded has not
been done. She accepted that
non-recordal occurs especially in
over-crowded public hospitals.
[83]
It was put to her that
Sister Ntjana who completed the partogram was in charge; she was an
advanced midwife and was assisted by
other midwives. She was using a
CTG to monitor the FHR. It did not have tracking paper, but she
observed the FHR on the screen.
It was put to her that if, given the
number of patients one had to monitor, a nurse in Sister Ntjana’s
position had to choose
between recording the FHR and attending to
other patients who needed attention, she would choose the latter
duty; and Ms Fletcher
agreed.
[84]
It was put to her that
Sister Ntjana would say that in fact she checked the FHR and was
satisfied that it was normal. But she did
not record it because there
were too many other things she had to attend to. It was put to her
that if at 03:30 the FHR was normal
at 128 bpm (within the baseline
range of 110 – 160 bpm), then if at say 04:00 there were no
contractions, the FHR would likely
be within the same range. Her
response was that the FHR would change, even if not dramatically. But
one could not predict what
it would be.
[85]
She was asked whether a
dramatic change in FHR was triggered by contractions, but she said
not by any large degree. She confirmed
that at 02:30 the FHR was 128
bpm (exhibit B p19, 2.7.45). It was put to her with reference to
exhibit B p19, 2.7.49 that at 04:00
there were no decelerations and
no FHR recorded, and that all was fine at that time; and she agreed.
[86]
She was asked whether it
was still necessary to call the doctor for the plaintiff’s high
blood pressure if the foetal condition
at 04:00 was normal. Ms
Fletcher responded by saying that the doctor may have resolved to
accelerate the labour, because as soon
as the baby is borne, the
blood pressure drops.
[87]
With reference to the
foetal condition at 04:40 as reflected on exhibit E page 24, she
confirmed that one could not say that there
was no foetal distress
without checking the FHR.  It was put to her that the FHR could
be checked with a CTG or with a stethoscope,
and she agreed that that
was a reasonable proposition.
[88]
With reference to the
witness’ contention (see partogram at exhibit E page 48) that
meconium indicated that the baby was stressed,
it was put to her that
Sister Ntjana says that she did in fact not observe any meconium. She
responded that once meconium is present,
it does not go away. She
accepted that meconium is not necessarily a sign of foetal distress.
She accepted that oxygen after birth
could be used to address
cyanosis. She accepted that an advanced midwife was sufficiently
trained to cut open the perineum.
[89]
The hospital records of 8
January 2013 at exhibit E page 25, were put to her, indicating that
breast feeding was initiated at 09:30;
and that exhibit E page 24
confirmed this. She accepted it.
[90]
The witness said that the
FHR was required to be monitored before, during and after every
contraction; and that after 03:00 the
FHR had to be monitored every
30 minutes. It was put to her that exhibit E page 24 reflected that
when the plaintiff was already
in the second stage of labour the FHR
was present and showed no distress. She accepted that it was so
indicated.
[91]
She insisted though that
although a FHR of say 158 bpm was within the ostensibly acceptable
range, the baseline in this case may
have been 140 bpm; and in that
event 158 bpm indicated a problem. She was taken to exhibit B 19,
2.7.33 and 2.7.41, reflecting
that the FHR remained the same despite
contractions; and she accepted that it could remain the same. She
accepted that a midwife
could check the FHR and contractions at the
same time.
[92]
With reference to exhibit
E page 48 and the entry at 01:00 reflecting B/N, it was put to her
that the “N” did not reflect
the presence of meconium.
She was referred to exhibit B page 65 for the proposition that Dr
Ebrahim also read the “N”
as not reflecting the presence
of meconium. It was put to her that there was no indication that the
baby was not breathing at birth;
if he did not breathe then, this
would have necessitated resuscitation; and she accepted this.
[93]
The witness said that
usually the mother would be lying on her back at birth; the baby
would be shown to the mother immediately;
and she will hear the baby
cry when the baby has been delivered. The hospital record at exhibit
E pages 24, 25 was put to her,
which indicated that the baby was fed
at 09:30, yet the mother denied that she fed the baby then. The
witness said that usually
the baby is put with the mother immediately
for 5 – 10 minutes. It is not normal for a baby to be fed only
after 24 hours
of birth. The baby needs energy, blood glucose.
[94]
With reference to exhibit
B page 22, 2.14.9 she said that the post-natal advice included
immunisation in the future. She confirmed
that the plaintiff was put
on a drip at the clinic for the high blood pressure, and also later
at the hospital. She expected that
the drip would have remained in
situ at birth. There was no record of when it was removed. It was put
to her that the plaintiff
in fact remained on the drip; the witness
agreed, but said that it was not for the high blood pressure. It was
various ingredients
including lactate.
[95]
It was put to her that
when the baby was readmitted there was no recordal of a history of
convulsions having occurred at home; but
the witness said that she
did not have access to the notes concerning the baby on readmission.
She confirmed with reference to
exhibit E page 48 that the FHR must
be checked every 30 minutes in the active phase of labour, when the
mother is dilated 4 cm
and greater.
[96]
She accepted that the FHR
was checked at 02:30. It was put to her that it was again recorded at
03:00 though not recorded. She accepted
that since according to
exhibit E page 24 the FHR was present at 04:40, it must have been
checked then.
[97]
It was put to her that
Sister Ntjana then concluded that there was no foetal distress, and
the witness accepted it. It was put to
her that it followed that even
if Sister Ntjana missed checking the FHR between 03:00 and 04:40 that
would accordingly be an irrelevance.
The witness did not accept the
proposition. It depended on the baseline. But the witness accepted
that Sister Ntjana could justifiably
breathe a sigh of relief if the
FHR was 128bpm.
[98]
In re-examination she said
that the reference at exhibit B page 19, 2.7.45 to the FHR as being
128 was an error.
Dr
Ebrahim
[99]
The plaintiff’s next
witness was Dr Ebrahim, an obstetrician and gynaecologist, also in
private practice at St Augustine’s
Hospital in Durban, as Dr
Kara. He had consulted with the plaintiff and had studied the
clinical obstetrics records. In his opinion
the ante-natal care of
the plaintiff was no cause for concern. He agreed a joint minute with
Dr Koll.
[100]
He explained that high
blood pressure was a risk factor, because it indicated constricted
blood vessels and thus reduced oxygen
supply to the foetus. In the
normal course one would not see FHR aberrations as a result of
uterine contractions. But in his view
the high blood pressure and the
presence of meconium made this a high risk case. Healthy foetuses
would cope with it though. It
was a matter of degree: first
compromise, then hypoxia, and only thereafter followed distress. In
his opinion, the plaintiff’s
pre-eclampsia caused the foetal
hypoxia.
[101]
Pre-eclampsia occurred in
5 – 10% of pregnancies and was not a common occurrence. It
requires appropriate management and monitoring.
Protein in the urine
– such as the plaintiff had – exacerbates the
pre-eclampsia. But it also depends on how high the
blood pressure is.
Pre-eclampsia occurs as a result of dysfunction in the placenta.
Generally a young healthy girl carrying her
first baby will not have
high blood pressure. The high blood pressure thus raises a suspicion
of pre-eclampsia. Pre-eclampsia is
treated by delivery of the
placenta.
[102]
If this baby was born in
nature, the probability of cerebral palsy was higher than in the case
where pre-eclampsia was not present.
The baby’s growth was
normal at birth. A CTG records the FHR on paper. Because of limited
resources, a CTG can be moved from
patient to patient. A hand-held
device is also available which amplifies the FHR, known as a doptone.
Meconium staining of the
liquor (“MSL”) presents as a
greenish discolouration as distinct from the usual rice waterish
colour. The presence
of MSL and pre-eclampsia warranted greater
attention to this foetus. It was a high-risk pregnancy, requiring
monitoring by means
of a CTG, not a stethoscope.
[103]
There are in fact no clear
guidelines on the monitoring frequency of FHR. But in situations
other than normal, continuous monitoring
is required. In a low-risk
pregnancy, it can be done every hour with the CTG, and with a
stethoscope in-between. The witness recorded
in his report that
monitoring occurred here until 03:00, but said that this was
obviously incorrect, and should have been 02:30.
[104]
The end of the first stage
of labour was 04:40, and the end of the second stage at 04:50. That
means there was no monitoring for
the last two hours or so. The way
the monitoring is done, is to listen to the FHR for about one minute
before and after a contraction.
That is the only way one knows
whether the contractions were well-tolerated by the foetus. In fact,
the partogram prompts it.
[105]
The normal FHR is 15 beats
over a 15 second period. The record of the FHR that presents in this
case, does not tell one whether
the baby was healthy or not. The FHR
was also not correctly plotted here. The decelerations are plotted
every hour, yet the FHR
is taken every 30 minutes.
[106]
As to the proposition that
the absence of recordal of the FHR was justified by the fact that it
was within the accepted range, the
witness opined that if the FHR was
monitored correctly, the range can be relied upon. But that is not a
valid approach if the monitoring
was not done correctly. In this case
there was no monitoring before and after the contractions.
[107]
As to the proposition that
a CTG was used but that there was no paper for it, the witness said
that a labour ward should have paper
for the CTG. If this is not
available, the mother and child are left to the mercy of
inappropriate monitoring. The nurse should
then record the FHR as she
observes it on the CTG.
[108]
The FHR changes during
labour, as it is a dynamic process. The form at exhibit E page 50 can
only be completed with CTG paper if
the nurse sits with the mother
and measures and records what she observes. The last hours of labour
is when the stress sets in
if the sources are depleted. The pushing
down of the head also puts pressure on the oxygen supply to the
foetus. The conclusion
in bold at exhibit B page 68, is that the FHR
monitoring was sub-standard.
[109]
In the witness’ view
foetal distress occurred as a matter of probability. The witness
relies on the diagnosis of Dr Kara that
HIE had occurred because of a
lack of oxygen to the brain. According to exhibit E page 49 the blood
pressure went up to 200/100;
in the witness’ view this was
extremely high, and the plaintiff had fairly significant,
moderate-severe eclampsia. He disagreed
with Dr Koll’s
assessment of “mild”. In his view a blood pressure of
140/100 is in the upper region of mild.
And this was much higher.
[110]
The plaintiff’s
problem with protein in the urine was also significant. And no
treatment was given to lower the blood pressure.
She was put on a
drip to make sure she did not become dehydrated. The drip also likely
contained painkillers and sedation. She
was given HCTZ on 10 January
2013 for her blood pressure, as also Adalat and Lasix. None of this
was given to her prior to birth.
Further, at exhibit E page 41 she is
recorded as being prescribed Methyldopa, medication to reduce high
blood pressure.
[111]
In her drip before birth
was lactate, salts and potassium. This medication kicks in over hours
rather than minutes. Lowering blood
pressure too quickly is not good
for the foetus. In the witness’ view, this was a reasonable
measure to deal with her high
blood pressure.
[112]
Concerning the Apgar
scores referenced at exhibit B page 68, the witness deferred to Dr
Kara. But he said that one would not expect
oxygen to be given to a
baby with good Apgar scores. Oxygen could be given in the first
minute if respiration hasn’t started.
[113]
In this case the plaintiff
said the baby was crying all the time the next day (second day of
life, 9 January 2013), and it continued
at home. A new-born crying
all the time, is atypical. But the witness said that he did not
believe there was any misjudgement on
the part of the nurse. His
science is to say if the monitoring could have missed something. So
he starts by accepting what the
paediatricians have found and then
works backwards. Here there was no sentinel event. His opinion is
captured at exhibit B page
70 in italics, and over the page, pages
71, 72.
[114]
Cross-examined, he said
that he was present during part of Dr Kara’s evidence. They
work together at the same hospital, see
each other often, and are
social friends. They discussed this case.
[115]
He accepted that according
to exhibit B page 66 it was recorded that the baby was able to suck
at 09:30. He accepted that according
to exhibit E page 25, the second
entry, the hospital staff were happy with the condition of the baby.
He accepted that a compromised
baby does not suck normally. He
accepted that oxygen could be given for cyanosis, a blue-ish baby.
It is also given for resuscitation.
[116]
With reference to his
opinion at exhibit B page 70, it was put to him that this was
dependent on there having been foetal distress
in the last two hours.
He said that it was partly so. The absence of monitoring does not
cause HIE; HIE is the diagnosis of Dr
Kara which he accepted. He
understood Dr Kara to be saying that there must have been foetal
distress in the last two hours before
birth. His own opinion can only
assist if in fact there was foetal distress then.
[117]
With reference to the
joint paediatricians’ minute at exhibit D item 3 page 11 and
the recordal that here was no FHR recorded
for two hours and twenty
minutes between 02:30 and 04:50, he said that one could not say there
was no foetal distress unless one
will have monitored the FHR. It was
put to him that the way in which the top block on exhibit E page 24
was completed, signified
that the author must have observed the
absence of foetal distress. He disputed this conclusion, saying that
one could not check
the FHR once and then conclude that there was no
foetal distress. Foetal distress was not a moment in time.
[118]
With reference to exhibit
N page 8 Recommendation 8, he opined that the partogram should be
completed contemporaneously. It was
put to him that at crowded public
hospitals nurses function under pressure and that they are not also
able to record everything
that they in fact perform. He explained
that King Edward the Fifth Hospital, there was one nurse for every
two patients in the
labour ward; in a private hospital, there was one
nurse for every one patient.
[119]
It was put to him that
Sister Ntjana had almost ten patients on the shift in question. It
would be her evidence that failure to
record did not equate to
failure to perform. He said in a private hospital, every patient was
monitored with a CTG from beginning
to end. With reference to exhibit
B page 67, he said that he was satisfied that the plaintiff was in
fact monitored with a CTG.
[120]
This was the plaintiff’s
last witness. Before her case was closed, the agreements regarding
the exhibits to which reference
is made at the outset of this
judgment, were recorded.
The
defendant’s case
[121]
The defendant’s
handed up legible copies of Prof Cooper’s report at exhibit C,
pages 12 – 18. Its first witness
was Dr Olebogeng Modise,
called as a factual witness.
Dr
Olebogeng Modise
[122]
He is the clinical manager
at the Jubilee Hospital. He qualified as a doctor at Medunsa in 1999.
He explained that exhibit N was
a manual for clinics, community
health centres, and district hospitals. He explained that the Jubilee
Hospital was a full blown
hospital, with a 24/7 maternity cum
obstetric ward. He read exhibit N page 36. He explained that the
shifts at Jubilee Hospital
were 12 hours, and that there was one
midwife for every eight to ten patients.
[123]
He explained that they
encourage staff members to adhere to requirements for recording
observations. But it is not practical to
adhere to them all,
especially a requirement such as one that reads: “enter all
observations”. So the staff would concentrate
on monitoring,
and not necessarily on recording. The focus is on the well-being of
the baby. Inevitably there is information that
is missing.
[124]
He is familiar with the
adage that what is not written down has not been done. But he said
that in the public sector the ratio of
health care professionals to
patients makes it impractical. There the professionals concentrate on
monitoring rather than on recording.
The latter is not always
practical.
[125]
He ascribes the
over-population at Jubilee Hospital to the fact that it is located on
the border of four provinces. It services
district hospitals, and 32
clinics. Of these clinics, two function on a 24/7 basis, but still
they have no doctor.
[126]
Cross-examined, he said
they did not have student nurses. The maternity patients are seen to
by midwives and advanced midwives.
Jubilee Hospital has 551 beds and
units other than the maternity unit. A nurse may record maternal
vital signs, but one needs training
and experience to record a foetal
condition. The witness did not know the ratio of nurses to patients.
[127]
He said that this nurse
(Sister Ntjana) delivered five babies in a 12 hour shift on the day
in question. He accepted that the recordal
of observations was
important, particularly when things go wrong. He accepted what was
put to him, namely that because of inadequate
recordal one does not
know what happened here, at least not completely.
Sister
Beauty Ntjana
[128]
This was the defendant’s
next witness, and she delivered the plaintiff’s baby. The
witness has a diploma in nursing
and a diploma in midwifery. She was
trained at Bophuthatswana Nursing College in 1988 and as an advanced
midwife in 2012 at George
Mokhari Hospital. She has since retired.
[129]
When baby K was born on 8
January 2013 she was employed at the maternity ward of Jubilee
Hospital. She completed the information
at exhibit E page 42, under
“Clinical nores”. The FHR was 158 bpm and the plaintiff’s
blood pressure 190/100.
The plaintiff was Gravida 1, meaning she was
coming in for her first delivery.
[130]
A CTG or foetal scope was
used. She was asked to lie on her back. The CTG straps were put
around where the baby’s heart beat
was most prominent. The CTG
records the FHR and gives a reading. The scope is used by placing the
one end against one’s ear
to hear the FHR. No-one else attended
on the plaintiff.
[131]
The witness did not know
who had recorded E41. It was put to her that the nurse at the clinic
had recorded MSL grade 1 and she accepted
it. With reference to
exhibit E page 42 she was asked whether she observed MSL at 23:40,
but said she did not observe it. She recognised
exhibit E page 48.
She explained that it was filled in at 21:00 before the plaintiff
arrived.
[132]
The witness recorded only
at 23:00 when she checked on the plaintiff. She found blood stains in
the liquor and recorded that as
BS. She did not record MSL because
she did not observe this. She entered BN at 01:00 but could not
explain what the “N”
signified. She thought it was a
mistake. Exhibit E page 24 reflected the summary of the labour. It is
her handwriting and she completed
it until the 3
rd
stage of labour. The person who completed the 4
th
stage of labour was Sister Kalibbala who is still employed at Jubilee
Hospital.
[133]
The information recorded
at 04:40 was actually completed at 04:40. Her signature appears next
to “delivered by”. This
was completed at the time of
delivery. She had written “foetal heart rate present”
when the baby was delivered. She
had also entered, “Foetal
distress: No” after the child was delivered. It is a summary of
the labour process. She did
not observe foetal stress during
delivery. That is why she entered “No”. She was referred
to the partogram at exhibit
E page 48 and confirmed that it reflected
the active and latent phase of labour.
[134]
She confirmed that the
guidelines cover the intervals during which the FHR was to be
checked, and confirmed that it had to be done
“after 30
minutes”. When she received the patient at 23:40 she was
already in the active phase of labour. She was taken
to where she had
plotted the FHR on the partogram, and confirmed having done so at
23:30, 00:00, 01:00, 01:30, 02:00, and 02:30.
She said that she also
checked the FHR after 03:00 but said that she did not get time to
record it.
[135]
She explained that there
was a patient delivering twins at 01:15. At 02:20 she was delivering
the second twin, in what she called
“a bridge presentation.”
This is when the baby’s buttocks come out first. Her
involvement with this mother is
why she did not record the FHR after
03:30.
[136]
She could not say how many
patients were allocated to her on that shift, but she delivered five
woman and six babies (one with twins)
on that shift, baby K included.
She was asked what the Maternal Guidelines require of her, and she
said they require of her to
check whether the patient has pain; her
vital signs; whether she was emptying her bladder; and how far the
mouth of her uterus
was open. She was asked to read from exhibit N
page 36 down to “foetal condition”. She said the
guidelines require
of her to record the FHR on the partogram, exhibit
E page 48. She said she did not plot the FHR but she checked it.
[137]
She said she completed
“time of delivery” on exhibit E page 24. It was 04:50.
With reference to exhibit E page 48 she
said that she last recorded
the FHR at 02:00. (This appears to be a mistake, because it is
recorded at 02:30). She explained that
her name is recorded at the
4
th
stage of delivery at exhibit E page 24, because before the plaintiff
delivered, she opened the way with scissors. And later stitched
her
up again.
[138]
The reference to “breast
feeding initiated” at exhibit E page 25 was recorded by Sister
Kalibbala. The witness was then
already off duty. Exhibit E page 25
was completed on 8 January 2013. The baby was recorded as being pink,
and that satisfied the
professions. With reference to exhibit E page
42 she confirmed that the plaintiff was on a drip, which was still on
at 04:50. She
confirmed that this patient had the CTG on her, and
this is what she used when she checked the FHR.
[139]
The CTG had no tracing
paper and thus reflected only the figures. She regretted the absence
of the tracing paper because now will
agree that in fact she did
check the FHR.
[140]
She was taken to the Apgar
scores on exhibit E page 29. She confirmed that she had provided the
information. Oxygen was administered
because when the baby was
delivered, he was extremely blue. Oxygen is then given to boost the
colour of his skin. There were three
sisters who were doing
deliveries on that shift. Each had her own patients. She was not
helped with baby K.
[141]
Cross-examined, she
confirmed that she did not know the plaintiff; she was just another
patient. She said she must have delivered
“a million”
babies since then. She accepted that she had no independent
recollection of the events and relied on the
records provided to her
by Dr Modise. She also consulted a book at the hospital the day
before she testified, and it reflected
how many babies she delivered
that night.
[142]
She came on duty at 19:00
on 7 January 2013. Baby K was delivered in ten minutes. There were
three midwives and one nurse assistant
on duty. She examined the
plaintiff at 23:40 for the first time, as reflected on exhibit E page
42. She recorded the blood pressure
as 190/100 and the caput as 3+.
She recorded that the doctor was to assess this. It was put to her
that it was not recorded that
in fact a doctor had assessed the
situation. She accepted that the plaintiff was in fact not assessed.
[143]
She agreed that the
plaintiff was told to lie on her side. This was to increase blood
flow to the baby. It was put to her that that
procedure is called
intrauterine resuscitation. She responded that every patient is asked
to lie on her side so that the baby’s
heart can beat properly.
She agreed that there was no record of a CTG having been used. It was
used only to monitor the FHR. It
had no tracing paper.
[144]
She completed the
partogram at exhibit E page 48, and agreed that the last recorded
assessment of labour appear at 03:00. She insisted
that the liquor
was blood stained, but that there was no meconium. She did not
observe meconium. She agreed that if there was meconium
at 01:00 it
would have been a concern.
[145]
With reference to exhibit
E page 42 and the 3+ caput entry, and the entries at 11:00, 01:30 and
03:00 reflecting caput at nil, could
not remember why those entries
were made. She accepted that the caput could not disappear. She said
that they were required to
see more patients than they could manage.
Later she said that the “nil” at 01:00 was correct -
there was no caput.
The initial three crosses indicating a material
caput was entered by the clinic, not by anyone at the Jubilee
Hospital.
[146]
She was asked about the
crosses and circles in recording the FHR on the partogram and
explained that the latter signifies before
pain and the former after
pain. Pain referred to contraction. It was put to her that the FHR
after contractions were then not known.
She accepted that she could
not say what the FHR was during the period 02:30 and 04:40.
[147]
With reference to exhibit
E page 24 she was taken to the absence of an entry after “assisted
by...”. She said that no-one
assisted her and she does not know
why the plaintiff said that there was a person who pressed down on
her abdomen. She said this
was not done.
[148]
She insisted that the FHR
was present, and that she observed no foetal distress. She did not
see distress on the CTG machine. She
said that before one delivers a
baby, one would again listen to the FHR. Exhibit E page 47 was not
completed because the information
there required is the same as the
information already on the partogram. And there is no time to
complete it. She said that they
worked “not with paper but with
lives”.
[149]
She agreed that the CTG
was removed by around 03:00, if the patient was taken from one bed to
another. She agreed that she also
monitored stage three of labour,
which commences when the baby is delivered and ends when the placenta
is delivered. She agreed
that she administered oxytocin at 04:54. The
method of delivery of the placenta was “active”. This is
described at
exhibit N page 41. She agreed with it. It lasts for ten
minutes, and then the fourth stage begins. She examined the vagina
for
further tears and then repaired the episiotomy.
[150]
With reference to exhibit
E page 24 she was asked how she monitored the foetal condition in the
second stage. She explained that
when one checks the patient to see
if she is fully dilated, one also checks the FHR before the mother
delivers. This is done with
the CTG machine. If the FHR goes below
100 bpm, that indicates foetal distress. If it beats above 110 bpm,
there is no distress.
She last checked the FHR before the baby was
delivered. She did not take the CTG off. She accepts that it could
have happened when
the patient was moved to another room.
[151]
The CTG has a sound
which warns when the baby is in distress. Its normal position is that
it makes a sound reflecting the
FHR in normal mode. It also sounds
differently when it is above 160 bpm or too low. She said that she
heard the sound of the FHR
all the time, also when the plaintiff went
to the delivery room. But while she was delivering the twins, she
could not leave them
and go monitor the FHR of baby K. She denied
that anyone assisted her when she delivered baby K. Had there been
anyone, this would
have been entered under “Summary of labour”.
[152]
She insisted that the baby
cried at birth, despite it being put that the plaintiff said he did
not. She said she would not have
shown him to the mother if he did
not cry, because then the baby is not fine; and under those
conditions she would not have shown
him to the mother. She accepted
that the record does not show for how long he was given oxygen. But
if a baby’s legs and
arms are blue, he is given oxygen with a
mask. If a baby does not cry at birth, he is wiped, he gets
stimulated, and then gives
a cry. Oxygen is not given to have the
baby cry. She would not have given oxygen if the baby did not cry.
[153]
She agreed that blue
arms and legs are not uncommon, but if a baby cries, there is no need
for oxygen. But she gave the baby
oxygen because of the Apgar score:
the response to stimulation was 1. Thus the cry was not such as to
make the baby pink in the
first minute of life. It was put to her
that there was a contradiction in the Apgar scores, because he scored
2 for a good cry,
and yet only 1 for stimulation? She explained that
when a child is born and gives a normal cry, and finishes crying, and
then keeps
quiet; then after wiping and stimulating the child, the
child would cry normally.
[154]
She explained that one
assesses the child in the first minute of life to see how he
responds. Then one writes down the Apgar scores.
Then one sees after
5 minutes how the child has scored and one enters that. The child is
with one at the bed where the mother will
have delivered the baby.
The baby is then taken away, wiped, injected, given vit K, and put in
an incubator until one is done with
the mother. It was put to her
that at 04:54 she was injecting the mother with oxytocin and
delivering the placenta, and so could
not have been busy with the
child. But she said the nursing sisters would take the child away.
[155]
In re-examination she was
taken to E28, and the entry at “first examination of neonate”,
under “cry”, reflecting
“normal.” She
insisted that the child came out normal, and that she did not observe
any foetal distress. She left the
child with the mother, who
breast-fed him. If the child was not fine, he would not have sucked.
If the FHR goes out of bounds,
there is an alarm on the CTG and a
flashing heart.
Sister
Kalibbala
[156]
She was the defendant’s
next witness. She qualified as a midwife in 1975 and was registered
as such in 1979. She qualified
as an advanced midwife in 2012. She is
employed at Jubilee Hospital. Exhibit E page 25, the second
paragraph, is her handwriting.
She came on duty at 07:00 that
morning. She completed the second paragraph. The information was
given to her by the patient while
talking to her. She directed the
patient what to do. She also completed exhibit E page 24, the fourth
stage.
[157]
After 09:30 she
post-checked the plaintiff, and told her to breast-feed the baby. She
thereafter took the baby away. She took the
plaintiff’s blood
pressure, and asked her to go to the bathroom to see if she could
pass urine.
[158]
Cross-examined, she
explained that the fourth stage of labour commences after delivery of
the placenta, for an hour, as reflected
on exhibit N page 41. She
agreed. With reference to exhibit E page 24, she said that she made
the fourth stage entry at 09:30,
4,5 hours after delivery of the
placenta. It was pointed out to her that she had entered, “perineum
intact”, and she
conceded that it was an error. Asked why she
did not pick up the error, she said that she had, which is why she
entered that Sister
Ntjana attended the perineum.
[159]
She was asked how she
arrived at the blood loss having been 350ml. She said it was an
estimate, based on the pads the plaintiff
had used. She was in the
labour ward where the plaintiff had delivered the baby. When she came
back from the toilet she went back
to her bed. One makes sure she is
fine, and thereafter she is transferred to the post-natal ward. That
is reflected on the last
entry on exhibit E page 25. It was put to
her that the plaintiff said that she had fainted, but she said that
she did not see that
happen. Had she observed such an event, she
would have put her on the bed to see what had caused it.
[160]
She did not accept that
the baby was only brought to the plaintiff at 14:00. She said that
the plaintiff was no longer in the labour
ward then; and that if the
baby is not sick, he is not taken away from the mother. She insisted
that the baby was with the mother.
Dr
Koll
[161]
Peter Charles Kool, a
specialist obstetrician and gynaecologist, was the defendant’s
next witness. He practices at Sandton
Medi-Clinic. He proved his
report at exhibit C page 63. He did not have sight of Dr Ebrahim’s
report at that time; only later.
He said a partogram is a visual
recordal of the birth. With reference to exhibit E page 48 at 01:00,
he could not interpret the
“B/N” and took it to be “B/S”.
He was taken to exhibit C pages 69, 70, and 71. He said that the FHR
is
very seldom recorded during the second stage of labour. But the
professional staff must listen to it, and this is drummed into them

in their training.
[162]
He explained that the FHR
could be monitored with a dopler in one’s hand and then not be
recorded, because one is wearing
sterile gloves. Then it is seldom if
ever recorded. With reference to exhibit N page 36 he agreed that in
those circumstances the
FHR still has to be recorded, but he insisted
that it is not practical to do so, and it never is. He gave his
opinion and comment
with reference to exhibit C page 74.
[163]
He agreed with the first
part of the last paragraph on exhibit B page 68. But he was not
present when the plaintiff testified, and
there was no record of a
change in condition of the baby the next morning. He explained that
there was a small overlap in the field
of science of the
paediatrician and obstetrician. The baby’s condition the next
morning is in the field of the neonatologist.
Exhibit C page 16 of
Prof Cooper was put to him, but he said it was not his field of
expertise. It was put to him that Dr Kara
had accepted the conclusion
at the foot of exhibit C page 16; he said the “early neonatal
period” probably refers to
the first 24 hours, but said it was
not his field of expertise.
[164]
With reference to exhibit
D item 2, the joint minute, page 3 paragraph 11, he said that if the
midwife is under pressure then to
follow the guidelines, recording
must yield to monitoring.
[165]
Cross-examined, he said
that exhibit E page 41 was the assessment at the clinic before
admission to the hospital. She had hypertension,
and was
pre-eclampsic. He regarded her as being a moderate risk. Anything
could go wrong. A primigravate is allowed to deliver
at a clinic;
that is not a risk factor.
[166]
FHR should be listened to
before, during and after contractions. It is not adequate to listen
to it only before contractions. The
most important time is to listen
to it after contractions, and alone it is sufficient. The late
decelerations that one worries
about are those after contractions. It
is a worry if it decelerates down to 80 bpm. Within the band of
120/160 bpm is acceptable.
One needs an electric monitor to monitor
variability. It cannot be done with intermittent auscultation. If the
FHR is below 110
bpm or above 160 bpm, an electronic monitor is
required.
[167]
A single reading within
the normal range with a low risk patient is fine. Even with a
high-risk patient, intermittent monitoring
remains the mainstay of
monitoring. He did not accept that a single reading is meaningless in
a high-risk patient. With reference
to exhibit E page 42, he said
that caput on its own without a delayed progress is not an issue.
There is an intra-observer variation
in caput values. But caput
cannot disappear (exhibit E page 48). He agreed that a doctor should
have assessed this. It would surprise
one if no assessment was done.
[168]
The usual reason for
requiring the patient to lie on her left-hand side is if there is
some concern about the FHR. It forms part
of intrauterine
resuscitation. “B/M” could signify meconium. “B/S”
liquor is very common. Even meconium
is; in 30% plus of all labours.
It could be ominous is it was associated with other indicators.
[169]
He accepted that since
there was no recording after 02:30 the condition of the foetus then
was unknown. With reference to exhibit
C page 69 at the end of the
second paragraph: he accepted that the recordal was not in accordance
with the guidelines. In his report
he was initially focused on
outcomes, and the baby was a healthy baby. If he ignored the outcome,
he would have said that the recordal
was substandard care.
[170]
If the plaintiff was not
monitored at all after 03:00, that would be massively substandard
care. With reference to exhibit E page
48, he explained that labour
must progress at one cm dilation an hour. The first line is the alert
line. The second line is the
action line. If the labour crosses the
alert line, it is not of significance. She would have stayed below
the alert line during
that period until delivery.
[171]
He accepted that the
nurses needed to be more vigilant since the FHR was not recorded. If
labour slows down, that is not necessarily
evidence of a problem, but
one has to be alert. If the dilation stuck at nine cm, that would
have been an issue. Not otherwise.
Exhibit E page 49 reflects
that the blood pressure remained moderately high. But treatment is
contra-indicated provided the diastolic
remained at around 100 (the
lower of the two values in a blood pressure measure). He accepted
that both recordkeeping and clinical
assessment are needed. He agreed
that in retrospect Sister Ntjana should have made a note afterwards
of the FHR during the period
she could not do contemporaneous
recording.
[172]
He did not accept that in
South Africa the most common ground for foetal brain injury is lack
of monitoring. He said that monitoring
has only been done in the past
ten years. The reason for monitoring is for the early intervention to
prevent brain injury. Brain
injury could also be caused by
misinterpretation of CTGs. With reference to exhibit E page 24, he
said that many babies have blue
extremities. He said oxygen is almost
universally given; old habits die hard. It is routine to improve
extremities.
[173]
He accepted that the baby
was sucking after birth. He did not want to say whether with HIE
sucking would be impaired as it was outside
of his filed.
[174]
Re-examined, he accepted
that the guidelines do not make provision for recording afterwards,
but said it should have been done.
He also said that he has never
seen recording of FHR during the second stage of labour. He could not
say when they will have started
non-recording, but it would have been
with the onset of the second stage of labour and full-on dilation;
when the second stage
was imminent.
[175]
Cross-examined further, he
said with reference to exhibit E page 24 that the mother was not
fully dilated at 04:40.  He said
monitoring is upped before full
dilation. The second phase can last for two hours. It can take that
long for the head to descend.
On exhibit E page 48 there is no space
to monitor after every contraction. The last recording here was at
03:00, when she was still
at nine cm.
[176]
With reference to exhibit
E page 24 it was not recorded when she was prepared for delivery.
Delivery is when monitoring is increased,
not recording. The nurses
cannot record at that stage, because they are scrubbed and gowned.
Prof
Cooper
[177]
He was the defendant’s
next witness. He is a retired paediatrician, with neonatology as a
sub-speciality. He practised for
35 years. He explained that if
between 10 – 45 minutes before delivery a foetus experiences a
complete lack of oxygen, this
can result in complete brain damage.
There is a cooling period of about six hours after birth; if a baby
was asphyxiated and the
baby is then cooled in the first six hours,
it may have a positive effect. Here the baby was not cooled. And in
any event, cooling
was only introduced at around the period when this
baby was born.
[178]
But in any event, cooling
would only be considered if there were obvious signs of damage, such
that the baby would have to be resuscitated:
the baby does not feed,
there are convulsions, such-like obvious clinical presentations. With
reference to exhibit E page 29, the
witness said that the Apgar
scores were not in keeping with a hypoxic event during birth or
thereafter. Exhibit E page 28 reflects
that everything about the baby
was normal. Cooling was not indicated.
[179]
The witness proved his
report at exhibit C page 12, dated 13 February 2018. His opinion is
at p16. The baby’s birth weight
was right up at the mean.
Oxygen was indicated, because the baby had blue limbs. This is a
function of the absence of oxygen in
the red cells.
[180]
Importantly, the witness
stressed (exhibit C page 16, 17): “
It
is almost universally accepted that a neonatal neurological syndrome,
usually referred to as neonatal encephalopathy, must be
present in
the early neonatal period if an intrapartum insult is to be linked to
later neurological handicap. In his textbook Neurology
of the
Newborn, Volpe, who is widely regarded as the world expert on
neonatal neurology, states: ‘The occurrence of neonatal

neurological syndrome, indeed, is a sine qua non for attributing
subsequent brain injury to intrapartum insult.’”
[181]
He described the “
early
neonatal period”
as being within six hours of birth. He said that Dr Kara accepted
this. The witness stressed his conclusion at exhibit C page 18.
The
witness initially considered that a convulsion had occurred at around
15 January 2013, but when he wrote his opinion he had
not seen the
readmission records.
[182]
He has since seen those,
and they changed his opinion: clearly, the baby’s neurological
status was already abnormal on 10
January 2013. He now concludes that
the insult must have occurred on 10 January 2013, as reflected in his
addendum report dated
9 August 2018, exhibit C1, pages 1 to 3. He
proved the joint minutes with Dr Kara, at exhibit D page 5, dated 23
February 2013.
The points of agreement are 1 – 8. He explained
that the MRI scan can suggest an injury having occurred at any time
from
around birth to a month afterwards.
[183]
The witness opined that in
his view it was virtually impossible for the injury to have occurred
during labour and delivery. If the
insult occurred during the 10 –
40 minutes before delivery, during labour, it could not have gone
unnoticed. It would have
reflected in the child after birth. The
checklist at exhibit E page 28 is against this. The baby was well ten
hours after birth.
[184]
The signs of such an
insult are not subtle; they are obvious even to a lay person.
Breast-feeding, sucking and swallowing are complex
manoeuvres; a baby
with hypoxic encephalopathy cannot perform these.
[185]
Cross-examined, he
accepted that an acute profound hypoxic ischaemic brain injury are
actually two injuries. It takes about ten
minutes for brain cells to
start dying. Before the injury gets to the part of the brain where
the cells start dying, the baby has
a shutting down mechanism. But
there is no such shutting down with an acute profound injury. A
complete lack of sucking reflex
is related to the extent of such an
injury.
[186]
It was put to the witness
that the plaintiff said that the baby sucked for a while and then
stopped. He did not suck that afternoon
nor that evening, and that
the baby did not want to feed the next day. The witness said it would
be of concern, but if there are
feeding problems the nursing staff
can detect very quickly if there is a problem with sucking and
swallowing.
[187]
It was put to the witness
that the baby was crying incessantly the next morning. He said that
it was difficult to comment; and that
the nursing staff would know
whether it was out of the ordinary.  But in his view the normal
Apgar sores and the normal feeding
exclude a preceding event. It was
put to him that Dr Kara said that a baby could appear normal
initially, and then develop signs
of injury. The witness said that
that applied to milder forms of injury; not as in the present case
where the injury is an acute
profound one. In this case the signs of
injury would be present.
[188]
With reference to exhibit
B1 pages 1 – 10 (the extract of Volpe’s textbook), the
witness referred to B10, and said that
this was a more severe case of
insult. He confirmed that he had examined the child.  He
accepted that some of the information
reflected on the ticked form
exhibit E page 28 required an active assessment, such as the
reflexes. With reference to exhibit E
page 29, he saw no
contradiction between the good crying record and the poor response to
stimulation. He said that if the mother’s
pre-eclampsia had
been going on for some time, one might have seen some growth
restriction. If hypertension only manifests as labour
starts, that
would be too late to affect the placenta.
[189]
He agreed that
pre-eclampsia was an accepted risk factor, but it depended on whether
hypertension was detected before labour. Here
it was not, and so it
was not a risk factor. He agreed that Apgar scores are subjective.
[190]
He said that the early
neonatal period is particularly the first six hours of life. If the
injury manifests only after twelve hours,
then the problem is
probably caused by something else. If it was caused in labour or
delivery, there is a 95% chance that it would
have manifested within
the first six hours, and a 99% chance that it would have manifested
within the first twelve hours. Neonatal
encephalopathy which is mild
does not result in cerebral palsy, if the insult is not already
evident as within that time frame.
[191]
The witness accepted that
on readmission on 10 January 2013 the neurological condition of the
baby was abnormal. At exhibit E page
110 a number of issues were
raised and excluded. According to exhibit E page 109, at 21:30 the
baby had a fit, and the fits then
continued. The baby subsequently
recovered. With reference to exhibit E page 93, where the diagnosis
on readmission was birth asphyxia,
the witness said that he did not
know on what that was based.
[192]
The temperature of 45°C
at exhibit E page 110 is inconsistent with life. There is no other
explanation but that the baby was
overheated. That results in apnia
(stopping of breathing) for an extended period of time. It is not at
all due to birth asphyxia.
There is no explicit action plan to treat
the high temperature or the high pulse (229 bpm), but the witness
assumes these were
treated, because the temperature came down.
[193]
In his opinion that insult
occurred on 10 January 2013 before the child was admitted to
hospital. It was put to the witness that
the plaintiff said that the
baby cried incessantly on the day of discharge; thereafter the whole
time at home, intermittently;
and on 10 January at 13:00 formed
bubbles around the mouth and made cycling movements with the arms.
The witness said that these
signs may have indicated convulsions. The
foaming at the mouth may have indicated problems with swallowing.
[194]
It was put to him that the
baby was making strange sounds when he was taken back to hospital,
but the witness found it difficult
to comment on this. He said though
that convulsions were probably indicated. From what was put to him,
he said the baby sounded
extremely ill, and neurologically
dysfunctional.
[195]
He accepted that if these
signs were evident by 13:00 on the day of admission (10 January
2013), their cause must have existed before
13:00. He was asked to
ignore exhibit E pages 28, 29 and to suggest a cause. He said that
the baby was well enough to be immunised
and discharged and that HIE
– even if moderate – could not be missed. He considered
that something must have happened
early on 10 January 2013.
[196]
He was asked what his
opinion would be if he were to assume that HIE was in fact missed. He
said that he still remained unpersuaded
that his opinion was wrong,
and that the signs of injury still manifested too late to signify an
injury which occurred during labour
or at birth. The hypoxia and
ischemia would have had to have occurred on 10 January 2013 to have
caused the signs; also the apnia.
Hypoxia results in depression of
the heart function, causing ischemia. This could have been caused by
an obstruction to the breathing
of the baby.
[197]
It was put to him that Dr
Kara opined that for a post-delivery insult to have caused this
injury, one needed a catastrophic collapse
of the baby; and the
witness agreed. He agreed too with Dr Kara that in such event,
without resuscitation, the baby would have
died.
Dr
Nonthlanthla Zikalala
[198]
The defendant’s
final witness was Dr Zikalala, a paediatrician who qualified in 2007
and was employed at the George Makesi
Hospital in Garankua. At the
time she was working at the Jubilee Hospital. She attended the
plaintiff on 10 January 2013 on readmission.
She completed exhibit E
page 110 and recorded that the baby had difficulty in breathing and
sever (check) for one day. She recorded
that he was foaming.
[199]
It was put to her that the
plaintiff said that the baby had convulsions at 13:00, but the
witness said no such history was given
to her. She said that nasal
flaring and convulsions were two different things. With reference to
exhibit E page 109 she explained
that she was called because the baby
was fitting. She stopped the convulsions then. An initial diagnosis
was meningitis. Fitting
could be a sign of this.
[200]
She said the high
creatinine levels were because the baby was not feeding enough. The
information on exhibit E page 110 that the
baby had difficulty
breathing was obtained from the mother. Exhibit E page 91 was
completed by the sister working in casuals. The
history of a two day
old baby is taken down from the mother.
[201]
Cross-examined, the
witness said with reference to exhibit E page 91 that oxygen
saturation of 98% was normal. With reference to
exhibit E page 110
she confirmed that she admitted the baby. She was asked whether “CNS
– jittery” indicated
a sign of convulsion, but she said
they were two different things. When a baby is jittery the child’s
hand stops when one
touches it, and that it what happened here.
[202]
With reference to exhibit
E page 110 she did not recall whether it was she that got the history
from the mother or a sister. But
whoever got it, tries to record
exactly what the mother says. She started treating the baby for
meningitis. At exhibit E page 109
she indicated that a microscopy had
to be done in the morning. The high creatinine could be a function of
dehydration, but could
have been an abnormality at birth.
[203]
That was the defendant’s
case. The parties both provided helpful written heads of argument and
closing oral submissions, for
which I am grateful. I provide only the
briefest summary of their full submissions.
The
plaintiff’s submissions
[204]
Plaintiff’s counsel
confirmed that exhibits M 1.12, 1.18 and 1.19 formed part of the
record by agreement between the parties.
He submitted that the event
causing the baby’s injury is unlikely to have occurred from
14:00 on 8 January 2013 until discharge
at around 16:30 on 9 January
2013. He submitted that the experts agreed that if it was an event
post-delivery, it would have required
active resuscitation –
and that there was no evidence of this after birth.
[205]
He submitted that if it
happened at any time from birth to 14:00 on 8 January 2013, it is
unlikely that the baby would have been
taken to the mother. It
followed, according to the submission, that it must have happened
between 23:40 on 7 January 2013 and 04:50
on 8 January 2013.
[206]
He submitted that the
evidence of Sister Ntjana had to be rejected. The Apgar scores and
exhibit E page 28 could not be correct,
because she was busy with the
plaintiff and could not pay attention to the baby. In response to the
question whether the Apgar
scores and the exhibit E page 28 checklist
were then dishonestly completely, counsel’s response was that
he went no further
than to raise suspicion. He submitted that the
court had to find that Sister Ntjana did not in fact monitor the FHR
as she says
she did, and that that was pure reconstruction.
[207]
Counsel high-lighted the
difference between Dr Kara and Prof Cooper, the former saying that
the injury could have been obscured
whereas the latter said it must
have been evident, even to a lay person.
[208]
Counsel submitted in
conclusion:
“
The
substandard care and treatment of the attending hospital staff
resulted in probable foetal hypoxia (distress) not being detected.

The attending nursing staff, by their failure to properly monitoring
the Plaintiff and her unborn baby, incapacitated themselves
to
effectively and appropriately intervene to prevent the foetal hypoxia
and resultant brain damage. Their substandard care and
treatment
resulted in the neurological insult to the baby’s brain
(
hypoxic
ischemic brain injury)
that
led to the baby’s cerebral palsy.”
The defendant’s submissions
[209]
Counsel for the defendant
relied on Sister’s Ntjana’s evidence. He submitted that
she monitored the FHR both before
and after contractions. He
submitted that she said that there was no way in which one could
deliver a baby without knowing the
FHR.
[210]
He criticized the
plaintiff, submitting that she was dishonest. He submitted that she
was told to say that the CTG was taken off
her at 03:00 because that
version fits with what her experts would testify. She told them too
that the baby had breathing problems
on readmission, but she did not
testify to this effect.
[211]
Counsel submitted that
non-recordal of the FHR is excusable in over-crowded public
hospitals. Sister Ntjana sacrificed recording
but not monitoring. She
observed the child before completing the Apgar scores and the exhibit
E page 28 checklist.
[212]
Counsel submitted that in
any event no causative negligence has been shown. He submitted that
the last paragraph on exhibit C page
16 of Prof Cooper’s
opinion was accepted by Dr Kara; and that resulted in nothing being
left of the plaintiff’s case:
there were good Apgar scores; the
baby was not resuscitated; the baby was not incubated; and he sucked
well (he was breast-feeding
at 09:30 according to Sister Kalibbala on
exhibit E page 25). The plaintiff said the baby was only brought to
her for feeding at
14:00, but this is so improbable that it can be
rejected, according to the argument. The baby needed nourishment.
[213]
Counsel submitted that Dr
Kara’s opinion that the injury occurred in the last two hours
before birth, is inconsistent with
these records. Added to this must
be Prof Cooper’s opinion that if the baby was delivered with an
insult already having occurred,
then it is impossible that he would
have sucked well at 09:30.
[214]
Counsel was critical of
the collaboration between Dr Kara and Dr Ebrahim. They discussed the
case; the one needs the conclusion
of the other; and Dr Ebrahim was
present when Dr Kara testified. Dr Kara only looked at the
convulsions as a symptom. But the convulsions
could have caused the
injury, and counsel submitted that Dr Kara conceded that.
[215]
But he cottoned onto Dr
Ebrahim that here must have been sub-standard care in the last two
hours before birth. Prof Cooper considered
but excluded this on the
basis of how the baby presented after birth. Counsel submitted that
Prof Cooper was a more objective witness.
Dr Kara said initially
(exhibit E page 24) that breast feeding was initiated but later said
it was other feeding. But on exhibit
E page 25 breast feeding is
ticked.
[216]
Counsel submitted that the
injury could have been caused by convulsions at home.  Ultimately
counsel submitted that the event
of birth as the cause of the
cerebral palsy was excluded by Prof Cooper’s opinion and Dr
Kara’s acceptance of it, reliant
of Prof Volpe’s passage
in his work. It was also submitted that the high temperature could
have been a cause of the injury.
Discussion
[217]
It seems to me that there
are two critical issues in this case. The first is whether the event
that caused baby K’s injury
– whatever it was - ought to
have been observed by the defendant’ staff, and the second is
whether – had it been
observed by the defendant’s staff –
the defendant’s staff could have prevented the event resulting
in baby K’s
injury occurring.
[218]
Before
the discussion progresses, it is necessary for the correct
perspective to remind oneself that the mere fact that baby K is

burdened with an injury does not make the staff of the defendant’s
hospital causally negligent. A plaintiff is still burdened
with
having to prove on a balance of probabilities what actually happened;
that the staff should have picked it up; and that the
staff could
have prevented the consequences of the event.
[1]
[219]
As
to the yardstick by which the conduct of the defendant’s staff
is gauged, the law expects of them to act in accordance
with a
notional standard set by a reasonable professional with their
experience and qualification in their circumstances.
[2]
[220]
Something also needs to be
said about experts, particularly in a case such as this where the
result is likely to be dependent on
the acceptability or otherwise of
their opinions. Their function is to assist the court, not the
parties. In a sense, therefore,
they are not part of the accusatorial
paradigm of the legal representatives of the parties.
[221]
They have no duty to
advance the best case they can for their side, as do lawyers.
Instead, they have a duty to the court to provide
their opinions
honestly, objectively and reasoned; and to explain their reasons to
the court in clear and understandable language,
so as to enable the
court, as best it can, to decide whose reasons are the more
persuasive.
[222]
Experts
have, for instance, no place expressing views as to what is negligent
and what is not. That is the function of the court.
If expert express
their own views as to what is negligent and what not, they confuse
their own function and they obscure from the
court the legitimacy of
their own objective reasoning, making it all the more difficult for a
court to adopt their reasoning.
[3]
[223]
Similarly, experts
have no place expressing views on what is or is not a conclusion on a
balance of probabilities. That is
a legal concept that is used by
court to determine a factual result where there are factual
conflicts. It is a function the remit
of which is that of the court,
not that of the witness. The court’s ability to discharge that
function, and the lawyers’
duty to assist the court in that
regard, comes from years of training and a particular attitude to
judging witnesses’ evidence.
[224]
Specifically, it involves
assessing credibility, reliability and probability together, in a
particular way, a topic which has enjoyed
attention in many judgments
in courts of first instance and in appellate courts, and academic
theses. A medical specialist is not
qualified or called upon to
engage in that endeavour. Her/his function is as I have set out
above.
[225]
With these preliminary
remarks out of way, I can now turn to assessing the relevant evidence
and expert opinions, given the two
issues to which I have referred at
the outset of this section.
[226]
If the departure point is
that the baby has an injury, and since the evidence as to when and
how it occurred is if not neutral then
at least inconclusive,
therefore the mother must win, then the judicial system collapses.
More is required, in our system of civil
liability: s/he who alleges,
must prove.
[227]
In this matter the first
occasion during which this specific insult, an acute profound HIE,
could have occurred, was during the
window of two hours and ten
minutes - 02:30 to 04:40 - on the 7th: no-one suggests that any
earlier time has any prior claim. And
the plaintiff’s witnesses
do not suggest either that any FHR other that one outside of the band
of 110 – 160 bpm, or
other than one outside of a
post-contraction rate greater than 15 bpm than the pre-contraction
rate, had any potential of alerting
the defendant’s staff that
the foetus was being stressed.
[228]
As a matter of
probability, the first of these two scenarios (the FHR extending
beyond the baseline range) may be discounted: the
CTG has an alarm
that would have alerted Sister Ntjana to a potential problem, and as
a matter of probability, no matter how busy
she was, no matter
whether she was independently checking the FHR every half hour, it is
more likely than not that the alarm would
have alerted her.
[229]
What if the CTG was, as
the plaintiff testified, no longer strapped to the plaintiff during
those crucial two hours and ten minutes?
Then the question whether
the FHR was monitored at all during that period arises, and the
direct
viva voce
evidence of Sister Ntjana comes into play.
[230]
I have substantial doubt
as to whether the FHR was monitored at all during the period 02:30 to
04:40, for these reasons. First,
I prefer, generally, the plaintiff’s
evidence to that of Sister Ntjana on this issue. I have already
referred to the fact
that the plaintiff generally made a good
impression. There is the added fact that this was her first baby and,
as a matter of probability,
she the events are more likely to be
imprinted in her mind than in the mind of Sister Ntjana.
[231]
The plaintiff said that
the CTG was taken off her at around 03:00 and not again attached,
when she was asked to walk to a different
room. Sister Ntjana was
uncertain about whether the plaintiff was in fact asked to move from
one room to another. She insisted
though that the CTG would have went
with her. How she would have remembered that fact is not clear to me.
Her evidence was largely
if not exclusively based on contemporaneous
records, understandably so. And this fact, the moving of the
plaintiff and the de-attaching
and re-attaching of the CTG is nowhere
recorded, either directly or indirectly by implication.
[232]
Secondly, I have
difficulty believing anyway that Sister Ntjana would have
scrupulously, every 30 minutes, walked across to the
CTG attached to
the plaintiff and checked the FHR during the two hours plus at stake
here. She was clearly too busy to have done
that; and, in any event,
it appears too unnatural a procedure for her to have followed.
[233]
Thirdly, Sister Ntjana’s
recording on the partogram of the FHR, to the extent that she did,
was already inadequate. Experts
on both sides said that the FHR had
to be monitored and recorded before, during, and after the
contractions. This was necessary
to measure the decelerations. The
partogram (exhibit E page 48) provides only for the recordal before
and after contractions, respectively
to be indicated by an “o”
and a “x”. Sister Ntjana did only one of the two,
according to the partogram.
And she said that she monitored and
recorded the FHR after contractions, to see if the FHR had recovered
after “pain.”
[234]
I conclude therefore that,
on the facts, there was probably no monitoring of the FHR for those
two hours and ten minutes between
02:30 and 04:40 on 7 January 2013.
[235]
The next enquiry is then
whether this omission was negligent. That in turn involves examining
two elusive issues: whether Sister
Ntjana was negligent, given the
impossible demands on her skills and energy at that time in an
overcrowded public hospital; and
whether that omission has any
causative relevance.
[236]
As to the first issue: the
policy consequences of concluding that a nursing sister in a public
hospital in South Africa at this
time cannot be judged at the same
standard as a nursing sister in a private hospital, is a matter of
considerable public consequences.
But in my view it needed not be
engaged with here, for this reason.
[237]
The case for the defendant
was not that Sister Ntjana did not monitor at all, because she was
too busy. The case was that she in
fact monitored, but was too busy
to record what she had monitored. At one stage the defendant’s
case was put on the basis
that when the choice came to whether to
monitor or record, she chose rather to monitor – that was the
more important activity,
in the patient’s interest. But of
course, there never was such a choice: recording implies that there
will have been prior
monitoring. If there was a choice (in the
intended sense), it was between to monitor only or to monitor and
record.
[238]
As to whether
non-monitoring of the FHR during the period concerned was negligent,
it seems to me be uncontentious that that must
follow. No matter that
monitoring is apparently of relatively recent vintage as a practice,
all the experts agreed that this had
to be done, and exhibit N too
exacted this. I conclude then that the defendant’s employee,
acting in the course and scope
of her employment with the defendant,
acted negligently.
[239]
Was this negligence
causatively relevant? It depends on whether the insult to baby K
occurred during those two hours and ten minutes;
and if it did,
whether the plaintiff has shown that in that event the sequelae to
bay K could probably have been avoided.
[240]
Did the insult, the acute
profound HIE, occur during those two hours and ten minutes? It stands
uncontested that the Apgar scores
and the exhibit E page 28 checklist
(“First Examination Of Neonate”) are inconsistent with an
injury having occurred
to baby K in that last window. And
importantly, the evidence of Prof Cooper is against it; the
concession of Dr Kara is against
it; and the work of Prof Volpe is
against it. Baby K was born – by all the usual accounts, as
reflected in these records
– a normal boy.
[241]
Now it is of course
possible that Sister Ntjana did not honestly complete the Apgar
scores or the exhibit E page 28 checklist. But
not only was it never
suggested to her that the Apgar information was manufactured, or that
the “First Examination Of Neonate”
was entirely
fabricated – it was not even argued that that should be the
finding of this court. All that was suggested was
that the suspicion
was raised, but that nothing further would be made of it.
[242]
But of course, and with
respect, that is unhelpful and does not nearly go far enough for this
court to make a finding that, probably,
those two critical documents
were both a false creation of Sister Ntjana’s imagination.
[243]
Where does that leave one?
That the baby was born normally; that within the first six or even
twelve hours of life nothing untoward
was noticed; that if anything
untoward was present it would have been noticed, except possibly –
in this latter regard –
the difference of opinion between Prof
Cooper and Dr Kara. The former was adamant that even a lay person
would have noticed abnormalities
within that initial window; the
latter opined at one stage that in some cases the immediate sequelae
might have been obscured.
[244]
I prefer the opinion of
Prof Cooper for the following reasons. First, he experience is
greater. Second, the reasons he gave, that
Dr Kara’s position
might have applied where the injury was not as marked as here, has
the ring of common sense to it. Third,
Dr Kara was inclined to
qualify his opinions by reference to what the witness considered was
a conclusion based on a balance of
probability. And as I have
indicated above, I do not believe he is qualified to express a view
based on his perception of “a
balance of probability”.
And fourth, it would appear that the standard textbook, that of Prof
Volpe, supports the position
of Prof Cooper.
[245]
The conclusion then is
that baby K was born normally, and there were no signs of injury for
at least the first twelve hours of life.
Even if the catastrophic
event occurred thereafter in the hospital, it was not the plaintiff’s
case that such an event was
the cause of the present sequelae.
[246]
But
even if this conclusion is wrong, and even if one assumes that the
insult occurred somewhere in those last two hours and ten
minutes,
there remains a further issue; that relating to causative negligence.
There is no evidence as to what could have been
done that would, as a
matter of probability, have changed the sequelae for baby K had
Sister Ntjana reported an out-of-kilter FHR
in those last two hours
and ten minutes, and an acute profound insult occurred then.
[4]
[247]
In the result the
conclusion is in my view inevitable that the case was not
established. I make the following order:
(a)
The defendant is absolved
form the instance, with costs.
(b)
The costs are to include
the qualifying fees, where applicable, of Dr Koll and Prof Cooper.
WHG van der Linde
Judge, High Court
Johannesburg
Dates trial: 13 August – 24
Augustus 2018
Date Judgment: 8 October 2018
For the plaintiff: Adv. C. McKelvey
Instructed by:
Nonxuba Inc
Plaintiff’s attorneys
345 Rivonia Boulevard
Edenburg
Rivonia
Tel 011 – 2341194/5
Sharecall: 0860666982
Fax: 011 – 2341197
Email:
admin@nonxubainc.co.za
Ref: ZMMN/fm/MAT 139
For the defendant: Adv. R Mkhabela
Instructed by:
The State Attorney
Defendant’s attorneys
North State Building
Tenth floor
95 Albertina Sisulu Street
Johannesburg
Tel 011 – 3307649
Fax: 0864474891
Refer to: BM Mokgohloa
Ref: 6221/16/P49
[1]
Minister of Safety and Security v Van Duivenboden 2002(3) All SA 741
(SCA); 2002(6) SA 431 (SCA) para 12.
[2]
Goliath v MEC for Health, Eastern Cape
[2014] ZASCA 182
;
2015 (2) SA
97
(SCA) para 8.
[3]
See
generally, Twine and Another v Naidoo and Another (38940/14) [2017]
ZAGPJHC 288;
[2018] 1 All SA 297
(GJ) (16 October 2017).
[4]
Magqeya v MEC for Health, Eastern Cape (699/17)
[2018] ZASCA 141
(1
October 2018) (majority, per Ponnan, JA).