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[2018] ZAFSHC 153
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P v MEC for Health Provincial Government of the Free State (4014/2014) [2018] ZAFSHC 153 (12 October 2018)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4014/2014
In
the matter between:
C
P
Plaintiff
and
MEC FOR HEALTH
PROVINCIAL GOVERNMENT
OF THE FREE
STATE
Defendant
CORAM:
PHALATSI, AJ
JUDGMENT
BY:
PHALATSI,
AJ
HEARD
ON:
15
JUNE 2018
DELIVERED
ON:
12
OCTOBER 2018
[1]
The plaintiff issued summons against the defendant, arising out of an
incident wherein the plaintiff was admitted at Universitas
Hospital
on the 10
th
of February 2013, to deliver her unborn baby.
The foetus sustained an intra-uterine death and was stillborn at
birth. The plaintiff
alleges in her particulars of claim that at all
material times hereto and more particularly when delivering the baby
on or about
12 February 2013 at the hospital, the Defendant wrongly
and negligently breached its duty of care to the Plaintiff, in one or
more
or all of the following respects:
Defendant
(through its nurses and/or doctors and/or the medical staff) failed
to recognise that Cytotec® is a potent uterine
stimulant which
can lead to over stimulation of uterine contractions during the
induction of labour; The nurses and/or doctors
and/or the medical
staff failed to recognise, after the first administration of
Cytotec®, that the post CTG had already demonstrated
that
Cytotec® was capable of producing a sustained hypertonicity in
the Plaintiff; The nurses and/or doctors and/or the medical
staff
failed to ensure that the Cytotec® did not lead to over
stimulation of uterine contractions; The nurse and/or doctors
and/or
the medical staff failed to further monitor the plaintiff after the
initial standard protocol was followed in respect of
the
administration of Cytotec®;
The
nurses and/or doctors and/or the medical staff failed to pay proper
attention to adequate monitoring of the plaintiff after
the
administration of Cytotec® and to the possibility of foetal
distress.
The
nurses and/or doctors and/or the medical staff failed to timeously
diagnose foetal distress and to perform an emergency caesarean
section when this occurred; the nurses and/or doctors and/or the
medical staff failed to take all reasonable and necessary precautions
to ensure that the birth resulted in a live baby.
Alternatively
to the
paragraph above, the Defendant and/or its servants (nurses and/or
doctors and/or the medical staff) at the hospital, acting
within the
course and scope of their employment with the Defendant, failed to
exercise due skill, diligence, competence and care
in that
he/she/they breached the abovementioned agreement in one or more or
all of the respects referred to in above paragraph.
As a result of
the Defendant’s breach of its duty of care as aforesaid, the
foetus sustained an intra-uterine death and was
stillborn at birth.
[2]
The defendant in its plea denies that the foetus died of
hypoxia
as a
result of the administration of Cytotec. The defendant further denies
that there was over stimulation of the uterine contractions,
or that
this caused the death of the foetus.
[3]
In support of her case, the plaintiff testified personally and called
a further witness, namely, Doctor Duminy. The defendant
called two
witnesses in its defence, being Doctors Malebane and Du Toit.
[4]
At the inception of the trial, both parties, through their respective
Counsel, indicated that the trial is only in respect of
the merits
and that quantum would be adjudicated later, should the need arise.
[5]
The first witness who testified was the plaintiff herself, who
testified briefly as follows:
That
she is the assistant teacher at Jim Fouche School in Bloemfontein.
That she was admitted at Universitas Hospital, Bloemfontein,
on 10
February 2013, after she felt terrible pain in her stomach. She went
to the said hospital because she was being treated at
the same
hospital for her tracheal stenosis and her ENT specialist wanted to
be present when she went to labour. During the evening
of the 11
th
of February 2013, whilst she was lying on her bed, she asked that the
sister be called because she was wet. The sister came and
told her
that it was just a discharge but according to her it was amniotic
fluid, meaning that her membrane had ruptured. On the
12
th
of February 2013, the doctor told her that he was going to give her
an induction to accelerate the labour process. She was given
Cytotec,
the induction medicine, at about 14H00 on the 12 of February 2013.
After the administration of the induction medicine,
she felt severe
pain and she thereafter told her family that she does not feel the
movement of the baby anymore. Eventually when
the sister came, they
could not get the pulse of the baby. She was thereafter taken to the
labour ward where she delivered a baby
boy, but the child was
stillborn.
[6]
The next witness to testify on behalf of the plaintiff was Doctor
Paul Charl Duminy, who testified briefly as follows:
That
he has a bachelor’s degree in medicine and surgery and a
Master’s degree in obstetrics and Gynaecology. He is a
member
and fellow of the Royal College of Obstetrics and Gynaecology. He has
practiced for 40 years, specialising in obstetrics
and gynaecology.
That there is a standardised protocol for induction of labour, which
is used in the Western Cape. He assumes that
the Universitas hospital
is also using the same protocol. I must state at this stage already
that this contention or assumption
was never disputed by the
defendant, nor any evidence tendered to the contrary. The Protocol
states that once it has been decided
that the patient must be
induced, both the patient and the foetus must be properly evaluated.
The foetal heart rate is evaluated
by a cardio-tachogram, a CTG. If
the condition of both the foetus and the mother is good, then Cytotec
can be administered. The
evaluation of the foetal heart rate with CTG
must be done before each administration of Cytotec. The protocol also
prescribes the
form and amount of Cytotec which must be administered.
In the case at hand, the CTG was not reassuring, indicating a foetus
in
distress, and it should therefore not have been proceeded with the
administration of Cytotec. The strict adherence to the protocol
is of
utmost importance because Cytotec contains a very potent substance
which causes the contractions of the uterus and has the
potential to
cause tonic contractions. Again, in the case at hand, Cytotec was
administered although the CTG tracings were not
reassuring and showed
the foetus in distress, because the foetal heart rate was too high.
There was no proper monitoring of the
plaintiff and the foetus at the
most crucial time of her induction. He postulates that the
administration of Cytotec, which was
administered about three times
on the 12
th
of February 2013, caused strong and sustained contractions. This led
to hyper stimulation of the uterus, which cut the supply of
oxygen to
the foetus. The foetus ultimately died as a result of Hypoxia, which
is lack of oxygen. The pains felt by the plaintiff
was as a result of
the administration of Cytotec. The prudent cause of action that
should have been undertaken, after CTG tracings
which were not
reassuring, should have been to try and resuscitate the foetus, and
if the foetal condition was not improving, then
delivery by caesarean
section should have been considered. The conclusion noted in the
hospital file that indicated that the pre-Cytotec
CTG was reassuring,
was not correct as the said CTG tracing was not reassuring. Whoever
came to the said conclusion, was negligent.
The post mortem report
revealed that the foetus had been infected with chorioamnionitis.
Chorioamnionitis is a recognised complication
in pregnancy. There is
overt chorioamnionitis, which means that there are signs which are
present for it to be recognised, on the
one hand, and silent
chorioamnionitis, on the other hand, where there are no signs present
for it to be recognised. In the present
case, it was silent
chorioamnionitis. No amount of monitoring of the patient and the
foetus could establish this silent chorioamnionitis.
On the basis of
his evidence that Cytotec was administered contrary to the protocol,
there was no proper monitoring of the plaintiff
and the foetus during
induction, failure to try and resuscitate the condition of the foetus
and consider delivery by caesarean
section, he came to the conclusion
that the defendant was negligent. I must again state that the view
that the defendant’s
employees were negligent in that they
failed to recognise that the pre-Cytotec CTG was not assuring, and
that there was no proper
monitoring of the plaintiff and the foetus
during induction, is shared and conceded by the defendant’s
expert in the joint
minute of the experts.
The
plaintiff thereafter closed her case.
[7]
The first witness called by the defendant was Doctor MATLHOGONOLO
KEOREEDITSE MALEBANE, who testified as follows:
He
holds the BSC degree and MBCHB. He qualified through the college of
medicines for South Africa as obstetrician and gynaecologist
in 2006.
He worked at Baragwanath and Sebokeng hospitals and he was in private
practice until 2017. He now does work as a medical
expert in medical
malpractice cases. His testimony is based on the notes that were
provided to him by the defendant’s attorney
and he did not
consult with the patient herself. The patient was firstly admitted to
Universitas hospital between 22 and 24 January
2013 and again on 10
February 2013. The reason for the first admission was the suspicion
that she was in preterm labour, meaning
in labour prior to the
expected time. She was given medication to prolong the pregnancy to
increase the chance of the foetus surviving
outside the uterus. The
only point of concern was that the patient had had tracheotomy, an
operation on the air pipe. The importance
of this information is
that, should the patient require any surgical intervention, for
example, caesarean section, there may be
complications. He testified
that the foetus had chorioamnionitis with funisitis. Funisitis is the
infection of the umbilical cord
of the foetus. The infection was
therefore spread through the blood, which is why it disseminated in
every organ, ultimately causing
the foetal death. Hypoxia in this
case was caused by the fact that the foetus had an infection that
depleted the oxygen and food
of the foetus. He could not find any
evidence to suggest that there was uterine hyper stimulation which
resulted in Hypoxia and
foetal death. Hyper stimulation is a
distinct, definable condition, and, as stated above, there was no
evidence of the characteristics
of hyper stimulation in this case. In
his opinion, no timeous intervention of any kind, including caesarean
section, would have
stopped the effects of chorioamnionitis, and
saved the child’s life.
[8]
The next witness to be called by the defendant was Doctor LEE-ANN DU
TOIT, who testified as follows:
She
has MBCHB and she is a fellow of the college of South African
anatomical pathology, a master of medicine and anatomical pathology,
all at Free State University. She is employed at the National Health
Laboratory Services at Universitas Hospital, Bloemfontein,
as an
anatomical pathologist, also known as Histo Pathologist. She compiled
the report in 2013 under the direction of Professor
Beukus, who
passed away in 2013. She performed a post mortem on the baby. The
microscopic findings included funisitis, which is
an infection of the
vessels in the umbilical cord. They also found bronchial pneumonia,
which is an infection in the lungs. They
saw evidence of haemorrhage
in the lungs, soft tissue of the neck, both adrenals and both
kidneys. They also received a third trimester
placenta which had
Grade 3 chorioamnionitis. They explain the cause of death and call it
the mechanism of death. They surmised
that the findings and post
mortem were explicable as a result of preterm rupture of the
membranes with chorioamnionitis and resultant
bronchial pneumonia,
with funisitis. Bronchial pneumonia is an accepted cause of death in
infancy. Grade 3 chorioamnionitis is
the most severe. It does not
progress from 1, 2 and 3 and it can start as grade 3.
The
defendant then closed its case.
[9]
Counsel for the defendant, Mr Motloung, spent a lot of time in
cross-examination of Doctor Duminy, trying to show that the plaintiff
was properly monitored during her stay at Universitas Hospital, from
10 to 12 February 2013, and more specifically during the period
of
her induction, that the protocol was complied with in the
administration of Cytotec and that generally the defendant was not
in
any way negligent in this matter. However, as I have alluded to
earlier, the expert who testified on behalf of the defendant,
Doctor
Malebane, not only conceded in the joint minutes that the defendant
was negligent, but he also testified to that effect
in court. The
defendant did not tender any evidence to gainsay the evidence of both
Doctor Duminy and Doctor Malebane on this aspect.
On the other hand,
counsel for the plaintiff, Ms. Auret, in cross-examination of Doctor
Malebane, concentrated on the concessions
in respect of the issue of
negligence of the defendant. On the pleadings and at the start of the
trial, it is apparent that the
defendant denies that the conduct of
the defendant, either by way of commission or omission, was the cause
of the death of the
foetus. The version of the defendant as to what
the cause of death was, was neither challenged nor disputed by
counsel for the
plaintiff during cross-examination of both Doctor
Malebane and Doctor Du Toit. This may not be surprising considering
the fact
that, in the opinion of Doctor Duminy, his theory is that
the pre-Cytotec CTG reading showed a foetus in distress. The
administration
of Cytotec caused uterine hyper stimulation, which cut
the supply of oxygen to the foetus, and the foetus died of Hypoxia,
which
means the lack of oxygen. Doctor Duminy, however, conceded that
there is no evidence proving the presence of uterine hyper
stimulation,
at least from 15h00 on 12 February 2013 and his
postulation is therefore conjecture. Doctor Malebane testified that
hyper stimulation
is a distinct and definable condition and there was
no evidence of hyper stimulation in this case. It is further the
evidence of
Doctor Du Toit that the cause of foetal death in this
case is Bronchial Pneumonia, which is a common cause of death in
infancy.
It is the evidence of Doctor Malebane that chorioamnionitis
depleted the oxygen and food for the foetus and also compromised the
capacity of the organs like the lungs and the adrenal glands to
function properly. Doctor Du Toit also testified that
chorioamnionitis
played a pivotal role in the causing of Bronchial
Pneumonia. This clearly illustrates that the postulation of Doctor
Duminy is
not sustainable and is therefore improbable.
[10]
The further contention on behalf of the plaintiff is that, if the
foetus had been delivered earlier, either on the 10
th
or 11
th
February 2013, it would have been less exposed to chorioamnionitis
and would have been born alive. Firstly, this was never the
case of
the plaintiff neither in the pleadings, nor in the evidence of the
plaintiff’s expert witness, Doctor Duminy. However,
in any
case, it is the evidence of Doctor Malebane that there was nothing
that necessitated the urgent delivery of the foetus prior
to the 12
th
of February 2013. The CTG readings of both the 10
th
and the 11
th
were normal. It was only the pre-Cytotec CTG of the 12
th
which was not assuring and showed foetal distress, necessitating
action to be taken. The spontaneous rupture of the membranes occurred
in the evening of the 11
th
.
There was no knowledge of the presence of chorioamnionitis at that
time and that could not have been a consideration to deliver
the baby
expeditiously. It is further not known when did chorioamnionitis
begin and what Grade it was at what stage. There is therefore
no
factual basis for this contention and it therefore stands to be
rejected.
[11]
The last contention that I need to deal with is the one that the
foetus should have been delivered by caesarean section and
the baby
would have been born alive. The evidence of all the experts who
testified herein is that chorioamnionitis is an infection
which
occurs in the uterine. The inherent risk in the delivery by caesarean
section is that when one opens the uterine, the infection
might
spread to the mother as well. Doctor Duminy further stated that it is
preferable to deliver the baby vaginally if the mother
is a
primigravida
,
meaning a girl who is pregnant for the first time, which was the case
with the plaintiff herein. Doctor Malebane testified that
one of the
first things that is essential when the baby is born is that the baby
must breathe. Both he and Doctor Du Toit testified
that the Bronchial
Pneumonia and the haemorrhage in the lungs so compromised the
capacity of the lungs that respiration would have
been very
difficult. I therefore find this contention difficult to sustain as
to how a baby who is unable to breathe could have
been born alive. It
is also the evidence of Doctor Malebane that because this infection
was blood born, it had permeated and compromised
all the organs of
the foetus and even if it was born alive, it would not have lived for
long. I am of the view that there is absolutely
no evidence on which
I can make a finding whether the baby would have lived or died if it
was born alive and I therefore decline
to make a finding on this
issue.
[12]
On the basis of these findings, although I find that the defendant
was negligent in administering Cytotec to the plaintiff,
I further
find that such conduct of the defendant, or any other commission or
omission, did not cause the death of the foetus.
[13]
I therefore make the following order:
1.
The
plaintiff’s claim against the defendant is dismissed with
costs.
_________________
N.W.
PHALATSI, AJ
On
behalf of plaintiffs: Adv. AURET
Instructed
by:
LC
DE SWARDT
P/A
LOVIUS BLOCK
BLOEMFONTEIN
On
behalf of defendant: Adv, MOTLOUNG WITH ADV. MOPEDI
Instructed
by:
STATE
ATTORNEY
BLOEMFONTEIN