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[2018] ZAGPJHC 630
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S M obo T M v MEC for Health and Social Development, Gauteng Province (2017/9251) [2018] ZAGPJHC 630 (16 November 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:2017/9251
In
the matter between:
M:
S obo
M:
T
Plaintiff
and
MEC
FOR HEALTH AND SOCIAL DEVELOPMENT, GAUTENG PROVINCE
Defendant
Coram:
Lagrange AJ
Heard
:
16 October 2018
Delivered
:
12 November 2018
Summary:
Medical negligence– liability – joint
minutes of experts.
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is an action to recover damages in respect of T M (‘T’),
a child born with cerebral palsy arising allegedly
from negligence of
nursing and, or alternatively, medical personnel at the Rahima Moosa
Mother and Child Hospital (‘the hospital’)
on 14 and 15
April 2010. The action is brought by her mother, Ms S M (‘the
plaintiff’), in her personal capacity and
on behalf of her
daughter. The sole issue in the trial proceedings at this stage is to
determine the issue of liability.
[2]
The parties were unable to
agree on a stated case but were content to argue the matter of
liability on the basis of the medical
experts’ minutes, subject
to the court referring one or more issues to oral evidence if it
believed felt that was necessary
to determine the hospital’s
liability, bearing in mind the status according to experts’
joint minutes as adopted in
the Supreme Court of Appeal decision in
Glenn Marc Bee v The Road
Accident Fund
[1]
,
namely:
‘
Effect
of agreement between experts
[64]
This raises the question as to the effect of an agreement recorded by
experts in joint minute. The appellant’s counsel
referred us to
the judgment of Sutherland J in
Thomas v BD Sarens (Pty) Ltd
[2012] ZAGPJHC 161. The learned
judge said that where certain facts are agreed between the parties in
civil litigation, the court
is bound by such agreement, even if it is
sceptical about those facts (para 9). Where the parties engage
experts who investigate
the facts, and where those experts meet and
agree upon those facts, a litigant may not repudiate the agreement
‘unless it
does so clearly and, at the very latest, at the
outset of the trial’ (para 11). In the absence of a timeous
repudiation,
the facts agreed by the experts enjoy the same status as
facts which are common cause on the pleadings or facts agreed in a
pre-trial
conference (para 12). Where the experts reach agreement on
a matter of opinion, the litigants are likewise not at liberty to
repudiate
the agreement. The trial court is not bound to adopt the
opinion but the circumstances in which it would not do so are likely
to
be rare (para 13). Sutherland J’s exposition has been
approved in several subsequent cases including in a decision of the
full court of the Gauteng Division, Pretoria, in
Malema v The
Road Accident Fund
[2017] ZAGPHC 275
para 92.
[65] In my view, we should in general
endorse Sutherland J’s approach, subject to the qualifications
which follow. A fundamental
feature of case management, here and
abroad, is that litigants are required to reach agreement on as many
matters as possible so
as to limit the issues to be tried. Where the
matters in question fall within the realm of the experts rather than
lay witnesses,
it is entirely appropriate to insist that experts in
like disciplines meet and sign joint minutes. Effective case
management would
be undermined if there were an unconstrained liberty
to depart from agreements reached during the course of pre-trial
procedures,
including those reached by the litigants’
respective experts. There would be no incentive for parties and
experts to agree
matters because, despite such agreement, a litigant
would have to prepare as if all matters were in issue. In the present
case
the litigants agreed, in their pre-trial minute of 14 March
2014, that the purpose of the meeting of the experts was to identify
areas of common ground and to identify those issues which called for
resolution.’
Material
facts
[3]
The critical issue in determining liability in the matter concerns
what occurred in the night of 14 April from about 22h00 until
just
after 01h00 the following morning, and subsequent thereto until the
time T was delivered by means of an emergency caesarean
section at
03h13, a few minute after surgery commenced.
[4]
The essential opinions emerging from the experts’ joint minutes
are summarised below.
[5]
The specialist nurses, Dr. C. Harris and Prof. A.G.W. Nolte agreed
that:
5.1 In respect of antenatal care, they
found no evidence of acts or omissions of negligence on the part of
nurses or midwives in
relation to the plaintiff’s pregnancy. In
particular they noted:
5.1.1
The plaintiff was a high-risk patient because of a previous stillborn
baby as identified by the antenatal midwife timeously
referred her to
the doctors’ clinic for antenatal care.
5.1.2
The mother first attended the antenatal clinic at a late stage of her
pregnancy, namely at 28 weeks gestation.
5.1.3
They deferred to neonatal expertise on whether or not the child had
suffered intra-uterine growth restriction.
5.2 They found that the care exercised
by midwives during the mother’s induction of labour was
substandard in that:
5.2.1
There was no document available to them demonstrating the proper
assessment and documentation of the foetal heart rate during
the
course of the mother’s induced labour.
5.2.2
They failed to keep accurate and complete records of the case.
5.2.3
The failure to properly assess and document the foetal heart rate
probably resulted in a failure to diagnose foetal disk dress
time
Wesley and take appropriate action.
[6]
The joint minutes of Dr. D. Pearce (Paediatric Neurologist for the
plaintiff) and Dr. V. Mogashoa (Paediatric Neurologist for
the
defendant) reveal, inter alia, the following material
conclusions, namely that:
6.1 The timing of the insult was most
likely intrapartum and based on records and history available,
as far as possible, an
antenatal insult could be excluded.
6.2
Having regard of ACOG 2014
[2]
,
and based on available medical records, intrapartum hypoxia was the
most probable cause of the neonatal encephalopathy in the
child.
6.3 T suffers from a mixed cerebral
palsy (predominantly dystonic/ataxic) with a gross motor functional
classification scale
II
, indicative that T’s physical
impairments restrict movement. In view of her family history and
mixed picture they could not
exclude an underlying genetic cerebellar
ataxia as a contributing factor.
6.4 In view of the child displaying
subtle dysmorphic features and if there was a family history of
neurological impairments, an
underlying genetic cerebella
ataxia could not be excluded as a ‘contributing factor’.
However, no family history
of neurological impairments was recorded.
6.5 In view of T’s current
neurological findings and based on her family history, they were
unable to exclude a genetic cerebellar
ataxia as a contributing
factor to our clinical findings. Of note there has been no regression
in her condition. Dr Peace was unable
to find any supporting
literature regarding the possible genetic condition and its role as a
risk factor for intrapartum hypoxia
however we will defer to the
expert geneticist. They deferred to an expert geneticist on
this issue.
6.6 They also deferred to expert
obstetricians’ opinion on possible risk factors including
previous stillborn delivery, late
booking and delay in the caesarian
section.
[7]
Prof G.F. Kirsten (neonatologist) for the plaintiff and N.N. Duma
(paediatrician) for the defendant agreed that:
7.1 Foetal monitoring was poorly
performed during Mrs M's induction of labour, with the result that
foetal distress was not diagnosed
timeously and there was also a
delay in performing an emergency caesarean section after severe
foetal distress was diagnosed, which
resulted in severe intrapartum
hypoxia.
7.2 According to the MRI brain scan
reports of expert witness neuro-radiologists, T 's magnetic resonance
imaging brain scan (MRI)
changes were in keeping with an acute
profound hypoxial insult to his brain.
7.3 There were no postnatal causes
identified that could explain her poor long-term neurodevelopmental
outcome.
7.4 As a consequence of the
intrapartum hypoxial insult T suffers from spastic quadriplegic
cerebral palsy.
[8]
The most detailed joint minute was that of the obstetricians,
professor G.B. Theron (the plaintiff’s witness) and Dr M.
Mbokota (the defendant’s witness). Key elements of their
opinion are:
8.1 The mother had a previous normal
delivery in 1999 of a 2.9 kg infant and a normal delivery of a
stillborn baby in 2009, both
of which deliveries were at term. Her
stillborn child weighed 2.1 kg and the placental weight was 231g. The
placental histology
revealed evidence of chronic hypoxia.
8.2 Her antenatal progress was
uneventful and she was admitted at 38 weeks gestation in the morning
of 13 April because of the previous
stillbirth.
8.3 Observations recorded in the
labour admission chart showed antenatal movement was normal on
admission, at 14h00, 18h00 and at
06h00 the following morning on 14
April.
8.4 A cardiotacograph (CTG) reading
done shortly after 08h00 on 14 April was recorded as being reactive.
8.5 Similarly a non-stress test, which
measures the fetal heart rate was noted as reactive at 12h40 on the
same day. The medical
records show that a request was made to repeat
the non-stress test after one hour and to assess if more medication
was required
to induce labour after six hours.
8.6 At 22h00 the same day, the
non-stress test conducted by a doctor was again reactive and a
further dose of labour inducing medication
was administered. It was
also recorded that the non-stress test needed to be repeated after an
hour.
8.7 Until that time the standard of
care was normal and the decision to induce labour at 38 weeks was
correct in view of the previous
stillborn child whose placental
histology showed evidence of chronic hypoxia. Before the second dose
of Prandin was administered
the physician had the assurance of a
reactive CTG.
8.8 However, there was no hospital
record kept between 22h00 and 01h05 the following morning. At 01h05 a
progress note records that
a doctor was requested to review a
non-stress test. The mother was experiencing contractions and the CTG
‘showed deep red
current decelerations were present with poor
variation’. A diagnosis of severe foetal distress was made and
the mother was
booked for an emergency caesarean section and
intrauterine resuscitation began. She was placed on her left side,
oxygen was administered
and the contractions were suppressed with
salbutamol. It was recorded that Dr Kgomo was busy in the theatre
with another caesarean
section at the time.
8.9 Fifteen minutes thereafter, at
01h20 the mother was having mild contractions and was receiving a
slowly administered dose of
Salbutamol five minutes later.
8.10 The CTG result recorded at 01h05
is classified as an abnormal or pathological CTG and may indicate
foetal hypoxia. Professor
Theron found that a relevant consideration
was how long the pathological CTG was evident before it was reported
to the attending
physician. Dr Mbokota is recorded as not agreeing
with this, though his point of disagreement relates to when the
abnormality in
the CTG would have been detected. He assumed that the
CTG was done at 23h00 as requested by the doctor, even though there
was no
record of this. He also assumed that the doctor was called
when the abnormalities were noted, even though the records do not
show
when the midwives noted this.
8.11 In any event, there was a delay
of two hours and five minutes before the commencement of the
emergency caesarean section.
8.12 Subsequent to the decision to
commence this procedure the correct management of the situation was
to proceed ‘with the
shortest possible delay’. The
hospital medical records contained no further explanation for the
undue delay apart from recording
that another caesarean section was
in progress ‘in theatre’ at 01h05.
8.13 The hospital anesthetic notes
revealed that the administration of anesthetic commenced at 03h00 and
surgery commenced at 03h10
with the easy delivery of a female baby
taking place at 03h13.
8.14 The postnatal examination of the
newborn child recorded that her birth weight was 2.37kg which was
small for her gestational
age compared with the norm of 2.509 kg at
38 weeks.
8.15 They concluded that the most
likely reason for foetal distress developing was placental
insufficiency due to possible intro
uterine growth restriction.
8.16 Professor Theron was of the view
that T’s asphyxiation at birth was the result of a possible
delay in reporting the abnormal
CTG and a subsequent undue delay in
performing the emergency caesarean operation. However, his
counterpart felt it would be speculative
to agree with this statement
because there were no records between 22h00 and 01h05 to indicate
when the midwives noted the abnormal
CTG. He did not take issue with
the existence of an undue delay in the operation being a factor in
her asphyxiation.
[9]
There were no disagreements between the expert radiologists Professor
L. Lotz and Dr T. Kamolane about their diagnosis of an
MRI scan of
T’s brain. In short, they found:
9.1 The MRI pattern was consistent
with an acute profound hypoxic ischemic injury to a term brain.
9.2 There were no congenital
malformations of the brain nor did the scan suggest any inflammatory
or infective causes as likely
causes of her brain damage.
9.3 They deferred to the opinion of
specialists in neonatology and obstetrics in determining the cause
and probable timing of the
brain injury and to exclude other possible
causes of the MRI pattern observed.
Evaluation
[10]
The critical question to answer is whether the injury to T’s
brain was most probably a result of a failure to detect
foetal
distress timeously and, or alternatively, to perform an emergency
caesarean section promptly, or whether it was more probably
a result
of other independent factors. It is important to mention that in the
hospital’s pleadings, apart from baldly denying
all the
plaintiff’s claims, the only positive factual statement it made
was that the monitoring of the mother and child was
adequate
according to the standards of care. It is also noteworthy that the
hospital had not specifically pleaded a defence of
impossibility in
relation to the delay in performing the emergency caesarean section,
nor did it plead that the cause of the injury
was a result of a
pre-existing condition.
[11]
On the evidence of the joint minutes, it is common cause that there
was no cause for concern for the condition of the mother
and the baby
in utero
at least by 22h00 on 14 April. What is also certain
is that by the time a doctor was alerted to an adverse CTG result
over three
hours later, the condition of the foetus had deteriorated
dramatically and to such an extent that an emergency caesarean
section
was deemed necessary and intra uterine resuscitation was
commenced.
[12]
The first question which arises is whether asphyxiation of T probably
commenced before this diagnosis at 01h05 on 15 April.
Secondly,
whether it would have been detected earlier had reasonable care been
exercised in monitoring the foetus’s condition
during that
period. There is simply no record of what was done, but we do know
that there had been an instruction for the non-stress
test to be
repeated at 23h00. In Dr Mbokota’s view the fact that the
request was made was sufficient reason to presume that
the test had
been conducted at 23h00 and that the absence of any record of the CTG
reading at this time should not be assumed to
mean that the test was
not conducted.
[13]
With the greatest respect to Dr
Mbokota’s medical expertise, it is difficult to agree that the
most probable inference to
draw from the absence of a record of any
CTG reading between 22h00 and 01h05 is that the test probably
was
conducted at 23h00. His
assessment is not explained with reference to standard hospital
practices, but appears to be simply based
on an inference that merely
because there is no test result for that time, it cannot be said that
the test was not conducted. However,
in assessing the probabilities
the absence of any test result during this period, given that test
results were available up to
22h00 and at 01h05, the more natural
inference to draw is that there was no test result in that interval
because no test was conducted
during this period. No alternative
explanation was pleaded or advanced by the hospital for the absence
of such records. In
Khoza
v MEC for Health and Social Development, Gauteng
[3]
,
Spilg, J set out
possible implications of such missing records:
‘
[47]
In summary, the failure to produce the original medical records which
are under a hospital's control and where there is no
acceptable
explanation for its disappearance or alleged destruction —
(a) may result in the
inadmissibility of 'secondary' evidence if the interests of justice
so dictate, whether such evidence
is of a witness who claims to
have recalled the contents of the lost document or to have made a
note of its contents on another
document;
(b) cannot of its own be
used to support an argument that a plaintiff is unable to discharge
the burden of proof because
no one now knows whether the original
records would exonerate the defendant's staff from a claim of
negligence;
(c) may result in the
application of the doctrine of res ipsa loquitur in an appropriate
case;
(d)
may result in an adverse inference being drawn, that the missing
records support the plaintiff's case in matters
where the defendant
produces other contemporaneous documents that have been altered,
contain manufactured data or are otherwise
questionable, irrespective
of whether the evidence of secondary witnesses called in support is
found to be unreliable or untruthful.
[4]
’
[14]
In this instance there is no suggestion of records having been
falsified, but given the existence of a CTG record before and
after
the critical period in question, the probabilities point to no test
being conducted at this time. It is possible that a non-stress
test
was conducted earlier than 01h05. Nevertheless, if that was the case
it is reasonable to expect that it would have been reported
immediately to the doctor, or as soon as possible, after such an
adverse result was observed. Accordingly, it is more probable
that
the foetal distress was detected in a non-stress test conducted
shortly before the doctor is recorded as being made aware
of it at
01h05.
[15]
The hospital advanced alternative causes for the injury suffered by
the child. In particular, the hospital highlighted the
fact that the
obstetricians agreed that:
‘
The
birth weight of baby M [2370g] was small for gestational age [below
the 10
th
percentile for gestational age]. According to the center aisle chart
for birth weight used in South Africa the 10
th
sent I will at 38 weeks would be a birth weight of 2509 g. The most
likely reason why foetal distress developed is placental
insufficiency
due to possible intro uterine growth restriction.’
[16]
The hospital argued that on this ground alone the case should be
dismissed as the experts agreed that the cause of foetal distress
was
a consequence of the mother’s pre-existing condition. The
plaintiff’s case is that since her condition was known
to the
hospital, it was required to adopt the appropriate level of care for
a mother with such a history. The plaintiff argues
in effect that the
hospital should have been alive to the higher risk she ran of foetal
distress occurring and monitored her condition
accordingly.
[17]
In so far as a genetic factor may have been a contributory cause of
the injury that appears to be unlikely in light of the
argument
radiologist joint findings.
[18]
In argument, the hospital also
contended that even if hypothetically there had been proper
monitoring of the foetus that would have
prevented the acute and
profound injury suffered by the unborn infant. In this regard, the
court was referred to the recent Supreme
Court of Appeal judgment in
Magqeya v MEC for Health,
Eastern Cape
.
[5]
In that case the majority accepted that the infant in question
suffered a hypoxic event immediately before delivery. The
court
found, in the circumstances of that case, that a failure to properly
monitor the mother between 23h45 and 8h20 could have
had no causal
effect on what happened subsequently. At 08h20, the condition in of
the foetus was still ‘reassuring’.
[6]
The consensus of the experts was that the injury probably occurred
within the last hour of birth which took place at 10h00.
[7]
Another important finding in that case is that the mother was in an
advanced state of labour and if foetal distress had been detected
at
that point there was little the staff could have done to make a
difference to the outcome because a caesarean section could
not have
expedited delivery at that stage.
[8]
In that case the injury had been characterized as acute, profound and
catastrophic. The court concluded that the failure to conduct
proper
monitoring would only have been relevant if the case had
‘
.
. . concerned “a partial prolonged type of brain injury”
that occurs over hours, it is not for “an acute profound
type”
as in this case.’
[19]
The hospital argues that the injury sustained by the unborn infant in
this case was also of a similar nature and therefore
unforeseen.
However, there are important distinguishing features in this matter.
Firstly, the mother was not in an advanced state
of labour, so the
hypoxia could not have been caused by strong contractions. Secondly,
the foetal distress was detected before
any advanced labour could
commence. Thirdly, none of the experts suggested that a caesarean
operation, even if performed promptly,
could not have improved the
prospects of averting the injury suffered. In other words, they did
not suggest that it was too late
to conduct a caesarean section.
Fourthly, it is common cause that T suffered an acute profound
hypoxic ischemic injury despite
the mother not undergoing advanced
labour and a easy delivery by caesarean section. Finally, the
hospital knew of the previous
still birth and should have been alive
to her higher risk profile. On the probabilities, there is a greater
chance that foetal
distress would have been detected earlier had
monitoring occurred regularly and that the injury suffered might have
been averted
or been severe if the caesarean section had been
performed promptly.
[20]
An alternative defense advanced in argument by the hospital that the
failure to conduct the caesarean operation promptly was
due to an
unavoidable lack of resources available to it. This submission was
based on the supposition that only one operating theatre
was
available and the only specialist available was engaged in another
caesarean operation in that theatre. The hospital accepted
that in
terms of the National Department of Health Guidelines for Maternity
Care in South Africa (4
th
edition), all hospitals should
be able to perform an emergency caesarean section within an hour of
the decision to operate. The
hospital argued that there were other
emergencies being attended to in the operating theatre which
necessitated the applicant’s
caesarean section only commencing
at 03h10. The question is firstly whether a proper evidentiary
foundation for such a justification
was laid. In the obstetricians
joint minute it was recorded that:
‘
10 . . . A note was also
made that Dr Kgomo was busy in the theatre with another caesarean
section at that time. A nursing
note in the Progress Report at 1:20H
states that Ms M was prepared for caesarean section and that she was
having mild contractions.
. . .
13. The correct management subsequent
to the decision to do a caesarean section 4 foetal distress is to
proceed with the procedure
with the shortest possible delay. The
medical and hospital records contain no further explanation as to the
undue delay prior to
commencing with the caesarean section for severe
foetal distress apart from stating that a caesarean section was in
progress in
theatre at 1:05H.’
The
extracts cited are the sole references to the existence of any
constraints on performing the emergency caesarean section more
promptly. Even if there was only one operating theatre available and
one doctor who could perform the operation, there is nothing
in the
joint minutes to explain why the theatre in question only became
available after two hours. There is certainly no evidence
to suggest
that Dr Kgomo had more than one other caesarean to attend to, let
alone the emergency status of the surgery he was performing.
There is
also no evidence as to why the caesarean section which was in
progress at 01h05 took so long if indeed that was the reason
why the
plaintiff could not be attended to earlier. It was contended that it
is evident from the joint minute that there was only
one theatre
available. However, the joint minute was simply reflecting what was
stated in the hospital record namely that ‘Dr
Kgomo busy with
another caesarean section in theatre’ (abbreviations expanded).
I cannot agree that this note is indicative
that only one theatre was
available. If anything, it speaks more to the availability of a
specialist, but even so is insufficient
on its own to explain why the
emergency caesarean could not have been done earlier.
[21]
The plaintiff points out
that the defendant did not plead a lack of resources as a
justification for its inability to conduct the
emergency caesarean. I
was referred by the hospital to the Constitutional Court judgment in
Soobramoney v Minister of
Health (KZN)
[9]
,
in which the court declined to order the state to provide dialysis
treatment to the plaintiff and accepted that the availability
of
dialysis machines was limited and the choice as to how to use those
limited resources was one best left to medical experts.
[10]
Leaving aside the basis of the cause of action in that matter, the
question of scarce resources and need was extensively canvassed
in
the evidentiary material before the court on that case. That is not
the case here. There is simply insufficient basis for the
court to
conclude that the failure to conduct an emergency caesarean operation
timeously by the hospital was justified.
[22]
In the circumstances, I am satisfied that the most probable cause of
T being asphyxiated at birth and consequently suffering
cerebral
palsy was the failure to regularly monitor her foetal heart rate
between 22h00 and 01h05 on the night of 14 April 2010
and the
subsequent delay in performing an emergency caesarean section once
the foetal distress was diagnosed, which resulted from
the negligence
of medical and nursing personnel at the hospital on 14 and 15 April
2010.
Order
[1]
The defendant is liable for the plaintiff’s damages in her
personal capacity as well as her representative capacity on
behalf of
the minor child.
[2]
The defendant shall pay the plaintiff’s party and party costs
of suit on a High Court scale in respect of the determination
of the
issue of liability, which costs shall include:
2.1 the
qualifying, preparation and reservation fees, if any of the following
expert witnesses appointed
by the plaintiff:
2.1.1
Prof. G.F. Kirsten (neonatologist);
2.1.2
Prof. G.B. Theron (obstetrician);
2.1.3
Prof. J.W. Lotz (neurological radiologist);
2.1.4
Dr. D. Pearce (pediatric neurologist);
2.1.5
Prof. A.G.W. Nolte (professional midwife/nurse);
2.1.6
Dr. G. Gericke (specialist pediatrician and geneticist).
2.2 The
costs of senior counsel.
_______________________
Lagrange
J
Acting
Judge of the High Court
APPEARANCES
APPLICANT:
G
J Strydom SC instructed by Edeling Van Niekerk Inc.
RESPONDENT:
M
C Makgato assisted by PM Mahlatsi, instructed by the State
Attorney (Johannesburg)
[1]
(093/2017)
[2018] ZASCA 52
(29 March 2018).
[2]
Proceedings of the American College of Obstetricians and
Gynaecologists, 2014.
[3]
2015 (3)
SA 266
(GJ).
[4]
At 279.
[5]
(699/17)
[2018] ZASCA 141
(1 October 2018).
[6]
At para [54].
[7]
At para [59].
[8]
At para [64].
[9]
1998 (1) SA 765 (CC).
[10]
At 784 para [59].