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[2018] ZAKZPHC 8
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H.N v MEC for Health, KZN (1287/2014) [2018] ZAKZPHC 8 (4 April 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 1287/2014
In
the matter between:-
H
N
Plaintiff
and
MEC
FOR HEALTH, KZN
Defendant
Coram:
Koen J
Heard:
26 March 2018
Delivered:
4 April 2018
O R D E R
Judgment
is granted in the following terms:
1
It is declared that the Defendant is liable for 100% of the
Plaintiff’s damages, as proved or agreed, arising from the
birth with disability of M N, a boy, born on […] August 2012.
2
The Defendant will pay the Plaintiff’s reasonable and
necessary costs of the action to date on the party and party scale
in
the High Court, as taxed or agreed, which shall include:-
(a)
the costs of the reports of the Plaintiff’s experts:-
(i) Dr DM McLynn,
obstetrician, including
qualifying, reservation
and attendance fees (not necessarily limited to R1500.00,
subject to the discretion of the Taxing
Master) and the costs of his
supplementary report and the costs of the joint minute;
(ii) Prof S Andronikou,
radiologist, and the costs of the joint minute;
(iii) Dr Y Kara,
paediatrician, including qualifying, reservation and attendance fees
(not necessarily limited to R1500.00,
subject to the discretion
of the Taxing Master) and the costs of the joint minute;
(b) the costs of the MRI
scan performed by Lake, Smit and Partners Inc. together with the
costs of the anaesthetist, hospital and
paediatrician involved in
obtaining the said scan;
(c) the costs of the rule
37 proceedings and case flow hearings;
(d) the costs of
preparation for trial;
(e) the cost of
preparation of heads of argument;
(f) the fees of two
counsel, where employed;
No order is made in
respect of the wasted costs occasioned by the adjournment on 10
October 2017.
3 The matter is adjourned
sine die
for the determination of
quantum
.
J
U D G M E N T
Koen
J:
Introduction
[1]
This is an action in which the Plaintiff in her personal capacity and
on behalf of her minor child, M N (‘M’), to
whom she gave
birth in the Greytown Hospital on 6 August 2012, claim damages from
the Defendant. M was subsequently found to suffer
from spastic
quadriplegic cerebral palsy. The Greytown Hospital is administered,
managed and controlled by the Defendant. The Plaintiff
alleges that
M’s condition was caused by the negligence of the Defendant’s
employees.
[2]
At the commencement of the trial the issue of liability was separated
for determination before all other issues. This judgment
deals with
that issue only.
[1]
Background
[3]
It is common cause that:
(a) M suffers from
spastic quadriplegic cerebral palsy, a permanent condition;
(b) The MRI scan of his
brain revealed damage compatible with a hypoxic ischaemic injury in a
term infant with the possibility that
it was prolonged.
[2]
(c) The cause of his
condition cannot be ascertained conclusively from the scan. The
specialist radiologists of both the Plaintiff
and of
the Defendant, per their joint minute agreed that
regard had to be had to the clinical picture to determine the
probable cause;
(d) The applicable
operating guidelines require that the foetal heart rate of M had to
be monitored every half-hour during the active
phase of labour;
(e) There was no
monitoring of the foetal heart rate for a period of 2 hours between
6pm to 8pm in the active phase of labour;
(g) A Caesarean section
operation should occur under the operative guidelines within one hour
of the decision to do one;
(h) One and a half hours
passed between the decision to perform a Caesarean section and the
delivery of M.
The
Legal Test
[4]
The test in medical negligence cases is succinctly summarised inter
alia by Corbett JA in
Blyth
v Van der Heever
.
[3]
The two questions mentioned in
Blyth
arising in this matter are:
‘
(i)
what
factually was the cause of the ultimate condition
of [M];
(ii)
did negligence
on the part of
[the Defendant]
cause or
materially contribute to this condition
in
the
sense
that
[the
Defendant]
by
the
exercise
of
reasonable
professional
care
and
skill
could
have
prevented it from developing
.’
[5]
Before considering whether these questions are to be answered in
favour of the Plaintiff or Defendant it is necessary to deal
briefly
with the evidentiary value of the hospital records of the Defendant.
The
Evidentiary Value of the Hospital Records
[6]
Both parties made extensive reference during the leading of the
evidence to the hospital records,
[4]
which the Defendant had kept, relating to the Plaintiff’s
confinement at the Greytown Hospital and the birth of M. At the
commencement of the trial it had been agreed that the status to be
assigned to these documents inter alia was that they are what
they
purport to be without being proof of the truth thereof.
[7]
To the extent that there are records, the Defendant has inter alia
relied on a favourable Apgar score which the nursing staff
of the
Defendant had determined at one minute and five minutes after M’s
birth as indicative of him having been born as a
healthy baby. The
Plaintiff, on the other hand, has relied on references in the
official hospital records that there was ‘foetal
distress’
and ‘cephalo-pelvic disproportion’ present to support her
case. The questions arising relate to the
admissibility and the
evidentiary value to be given to these entries appearing in these
records.
[8]
Statements in the medical records that are favourable to the
Defendant are hearsay where the author thereof was not called to
testify, and hence not admissible.
[5]
Accordingly, the apparent high Apgar scores
[6]
relied on by Dr Wildenboer, namely scores of 7 and 8 out of 10,
determined at 1 and 5 minutes respectively, remain hearsay as the
author determining and recording those scores was not called
totestify thereto. No application was made for the admission thereof
in evidence in terms of section 3 of the Evidence Law Amendment Act
1998, but even if there was, it would be unlikely to have succeeded
as there was no evidence that the author thereof was no longer
available to give that evidence. These scores are in any event,
in
the opinion of all four
the medical
experts who testified, subjective and to that extent open to debate
and unreliable. This was particularly, as Dr Kara
testified, that the
five minute score would be inflated by M’s resuscitation with
oxygen. Dr Wildenboer agreed. Thus, even
if admissible evidence, no
valid conclusion can be drawn from these scores.
[9]
Recordings favourable to the Plaintiff’s case in establishing
negligence and liability generally, and accordingly damaging
to the
Defendant’s case, made as part of the records kept by the
Defendant’s servants, are however on a different footing.
They
constitute admissions by the servants of the Defendant made in the
ordinary course of discharging their duties, which are
binding
against the Defendant.
[7]
The Defendant’s staff are obliged to make these statements by
recording the medical position as it unfolds in the records.
They
have an obligation to speak on behalf of the Defendant and dispute
what is recorded, if indeed incorrect.
[10]
Mr Chetty who appeared for the Defendant did not dispute this
interpretation.
The
Cause of M’s Cerebral Palsy
[11]
In determining what factually was the cause of, or what materially
contributed to the condition of M, the standard of proof
as in all
civil matters is one on a preponderance of probability.
[12]
Dr Wildenboer, the Defendant’s expert paediatrician, candidly
conceded that a Hypoxic Iscaemic Event (HIE) is the most
common cause
of cerebral palsy.
[8]
In M’s
case that statement is also consistent with the expert radiological
evidence. Taking that as the general point of
departure, the question
then arising is what caused or materially contributed to the HIE. The
common cause radiological evidence
is that it was possibly a
prolonged hypoxic ischaemic injury. One possible cause of such an
injury would be if the foetus was distressed.
The foetus could be
distressed during prolonged labour during the active phase.
[13]
Other possible causes mooted in the evidence included:
(a) That the brain damage
may have been the result of a syphilis infection to the child
in
utero.
(b) That because the
Plaintiff was HIV positive, it may also cause her child to be born
with cerebral palsy.
(c) That the Plaintiff
could have rolled on to M when he was placed in the bed with her
shortly after his birth and where he remained
until the next morning,
thus suffocating him or at least seriously restricting his breathing.
[14]
AS regards the possibility of syphilis being the cause Dr Batchelder,
the Defendant’s specialist obstetrician, testified
that the
brain damage may have been the result of a syphilis infection to the
child
in
utero.
He
made this observation because of an observation in the records that
the Plaintiff was WR positive an indicator for syphilis,
suggesting she had
syphilis, and was not on treatment for it. Dr Kara explained clearly
and convincingly that the Plaintiff did
not suffer from syphilis.
[9]
Although not conclusive, the Plaintiff’s evidence was also that
she does not suffer from and was never diagnosed with syphilis.
What
however put the matter beyond doubt is that in the Plaintiff’s
discharge summary it was recorded that the child was
RPR negative. Dr
Batchelder consequently fairly accepted that syphilis was not a
contributory factor and could be disregarded.
[15]
As regards the suggestion that the Plaintiff was HIV positive and
that this may have caused M to be born with cerebral palsy,
it was
not disputed that the Plaintiff was HIV positive. Dr Wildenboer
however testified that HIV is not a direct cause of cerebral
palsy,
but merely raises the risk of HIE or makes the child of an infected
mother more susceptible to possible HIE. Dr Kara testified,
and this
was not challenged, that a baby unexposed to HIV has a 0.2% risk of
neonatal encephalopathy, whereas the same child would
have double the
risk, namely 0.4% if his mother was HIV positive. The presence of HIV
therefore would not constitute a defence
open to the Defendant, but
can in any event be discounted since:
(a) it falls naturally
into the weak heart and thin skull rule type of case where a
defendant takes his victim as he finds him;
[10]
(b) the presence of HIV
which was known to the Defendant after admission of the Plaintiff
raised the risk of HIE, which would necessitate
more careful
monitoring during the labour and birth processes.
[16]
Dr Batchelder had also suggested that M’s brain damage may have
occurred if the Plaintiff rolled on to him during the
night of his
birth when very shortly after he was born he was placed in the bed
with her until the next morning, thus suffocating
him or at least
seriously restricting his breathing. This suggestion was however
never put to the Plaintiff and there is no evidence
that it indeed
happened. Indeed Dr Batchelder agreed that this was mere speculation.
[17]
The other possible causes referred to in paragraphs [13] to [16]
above being discounted, foetal distress and the
sequelae
following therefrom appears to be the most probable cause of M’s
condition. It is not necessary to determine conclusively
as a matter
of medical causation that foetal distress was actually the cause. It
is sufficient if it is the most probable cause
that presents
itself.
[11]
Dr Batchelder
agreed under cross-examination that since HIE is the main cause of
cerebral palsy, and that the possibility that
there was some unknown
less probable cause which could have intervened to cause M’s
brain damage, was less likely.
[18]
That foetal distress during the active stage of labour was the most
probable cause, is also consistent with the evidence. There
was
evidence on a later CTG scan performed that there was foetal
distress.
[12]
That scan has however apparently disappeared. Unfortunately poor
monitoring as testified to by both obstetricians during the final
stage of labour also means that there is no primary evidence either
in confirmation of or in contradiction of the finding of foetal
distress. It would not however have been revealed and recorded if M
had not presented with signs of foetal distress.
[19]
That this was an instance where foetal distress would be likely, is
also confirmed by the evidence of Dr McLynn, the obstetrician
for the
Plaintiff,
as
in his view, the Plaintiff was at risk of cephalo-pelvic
disproportion. He testified that the Plaintiff was of small stature
being under 1.5m in height. M was on the large side, namely 3.58kg at
birth. The hospital notes before birth described the baby
as ‘big’.
The Plaintiff was accordingly at risk for cephalo-pelvic
disproportion, having regard to the proportion between
the size of
the baby and her probable smaller pelvic dimensions due to her
smaller stature. It is not a case of absolute size,
but baby size
relative to the Plaintiff’s pelvis. When a normal vaginal
delivery proved impossible, any delay in extracting
M would increase
the risk of brain damage. The discharge summary indeed records that
an emergency Caesarean section was required
due to foetal distress
and cephalo-pelvic disproportion.
[13]
[20]
In the end, the Defendant’s case was that there was no evidence
that an earlier Caesarean section would have prevented
the full
extent of the brain damage, Dr Batchelder opining that the outcome
may not have been better. I do not, with respect, find
that reasoning
convincing. Dr Batchelder testified that brain damage increases with
a delay in an HIE situation. At 10pm, the foetal
heart was 169bpm and
therefore non-reassuring. A CTG trace was scheduled. At 10:50pm the
trace showed decelerations. A doctor was
called who took half an hour
to arrive. Dr McLynn testified that this is substandard. There was no
evidence suggesting that earlier
attendance was impossible. A
Caesarean section was only then directed. Thereafter a delay of one
and half hours ensued, which Dr
Batchelder agreed is substandard. The
explanation that emerges from the medical records is that a full
blood count was requested
and there were delays at the laboratory
where the staff did not answer the telephone or begin with the
analysis. These delays are
consistent with the possible ‘prolonged’
diagnosis of the brain damage agreed to by the radiologists. There is
furthermore
evidence of encephalopathy of seizures as recorded in the
discharge form. Dr Wildenboer agreed that seizures imply some loss of
consciousness. This is the exact picture one expects. The evidence of
Dr Kara established the most likely explanation causing M’s
condition to be due to oxygen deprivation during child birth in
consequence of delay and neglect.
[21]
I accordingly conclude that as a matter of probability the HIE
resulting in M’s cerebral palsy was caused by, alternatively
materially contributed to by, the foetal distress he was exposed to
during and towards the latter stages of active labour, that
is
peri-natally.
Negligence
[14]
[22]
The cause of, or factors materially contributing to, M’s
condition referred to in the preceding paragraph, to the extent
that
this is not already apparent from what I have said above, resulted
from the negligent conduct of the Defendant’s servants
acting
within the scope of their employment with the Defendant,
[15]
in one or more or all of the following respects:
(a) They failed to
adequately monitor the Plaintiff and the condition of M properly
during the labour, particularly during the active
labour phase. There
was apparently no monitoring during the last two hours of labour, or
alternatively no records have been kept
in respect thereof. The
probabilities suggest that had there been appropriate monitoring,
foetal distress would have been apparent.
(b) Being aware that the
Plaintiff was HIV positive and hence more susceptible to possible
HIE, the failure of the Defendant’s
staff to monitor adequately
during labour was all the more serious in the circumstances.
(c) Being aware of the
Plaintiff’s relative diminutive size and that her baby was
‘big’ they failed to recognize
and appreciate the high
risk of cephalo-pelvic disproportion timeously.
(d) Having clearly
identified the urgent need for M to be born by Caeserian section due
to poor progress in labour, it took more
than an hour, indeed an hour
and a half for that procedure to be performed. That was outside
acceptable time limits. The delays
in both the time the doctor took
to respond to the summons by the nurse and in performing the Cesarean
section represented substandard
care.
(e) If, contrary to what
I have found above, M’s condition was caused by him being
smothered accidentally by the Plaintiff
when he was placed with her
in bed, this would still constitute negligence. Dr Batchelder
testified that it was inappropriate to
hand the baby to his mother
immediately after the operation since she was recovering from
significant surgery and anaesthesia.
That constitutes a further
ground of negligence, and the Plaintiff would have been entitled had
there been any such evidence to
amend her particulars of claim to
make this case.
Costs
[23]
The Plaintiff produced a draft order reflecting the relief she will
claim, including a detailed order as to costs.
[24]
The Plaintiff has inter alia sought the wasted costs occasioned by
the adjournment on 10 October 2017. The matter had been
heard on 9
October 2017 and was to have continued on 10 October 2018. The matter
could not proceed on 10 October 2018 due to my
unforeseen but urgent
admission to hospital on the morning of 10 October 2017, where I was
detained for three days. I tender my
apologies to the parties for
this unfortunate adjournment. It however, seems to me to be unfair to
make any cost order in respect
of that day, or to direct that those
wasted costs should follow the result. I accordingly make no order in
respect thereof.
[25]
The Defendant has not raised any other objections to the terms of the
order granted should I find against the Defendant. There
are aspects
of the order which in my view are unnecessary and may unduly fetter
the discretion of the Taxing Master. I have amended
the order
accordingly. The order sought is very specific in regard to various
items of the costs. It is in my view undesirable
for orders on costs
to become this detailed. I have however been advised that if not
specified with such particularity that problems
are often encountered
on taxation. I have accepted these assurances from both counsel in
formulating the order, so as to avoid
the possible need for any
review of taxation. I do so hesitatingly though as I do not believe
that such particularity is necessarily
required.
Order
[26]
The order I grant is as follows:
1 It is declared that the Defendant is
liable for 100% of the Plaintiff’s damages, as proved or
agreed, arising from the birth
with disability of M N, a boy, born on
[…] August 2012.
2 The Defendant will pay the
Plaintiff’s reasonable and necessary costs of the action to
date on the party and party scale
in the High Court, as taxed or
agreed, which shall include:-
(a) the costs of the
reports of the Plaintiff’s experts:-
(i) Dr DM McLynn,
obstetrician, including
qualifying, reservation
and attendance fees (not necessarily limited to R1500.00,
subject to the discretion of the Taxing
Master) and the costs of his
supplementary report and the costs of the joint minute;
(ii) Prof S Andronikou,
radiologist, and the costs of the joint minute;
(iii) Dr Y Kara,
paediatrician, including qualifying, reservation and attendance fees
(not necessarily limited to R1500.00,
subject to the discretion
of the Taxing Master) and the costs of the joint minute;
(b) the costs of the MRI
scan performed by Lake, Smit and Partners Inc. together with the
costs of the anaesthetist, hospital and
paediatrician involved in
obtaining the said scan;
(c) the costs of the rule
37 proceedings and case flow hearings;
(d) the costs of
preparation for trial;
(e) the cost of
preparation of heads of argument;
(f) the fees of two
counsel, where employed;
No order is made in
respect of the wasted costs occasioned by the adjournment on 10
October 2017.
3 The matter is adjourned
sine die
for the determination of
quantum
.’
_________________
Koen
J
Appearances
Plaintiff’s
counsel: L Pillay SC with ML Bahadur
Plaintiff’s
Attorneys: Justice Reichlin Ramsamy
Ref.:
JRR/AB/N1368
C/O
SURENDRA SINGH & ASSOCIATES
Tel.:
033-394 9683/95
Defendant’s
counsel: M.G Chetty
Defendant’s
Attorneys: STATE ATTORNEY KZN
Ref.:
24/003725/13N/P22/hvl
C/O
CAJEE SETSUBI CHETTY INC
Tel.:
033 – 345 6719
[1]
The Plaintiff called two expert witnesses, Dr Kara, a Paediatrician,
and Dr McLynn, a Specialist Obstetrician and Gynaecologist,
and the
Defendant called two expert witnesses to testify on its behalf
namely, Dr Batchelder, Specialist Obstetrician and Gynaecologist,
and
Dr Wildenboer, who is a Specialist Paediatrician. The Plaintiff also
testified.
[2]
The Defendant has argued that there is no evidence of an acute peri-
or intrapartum sentinel event sufficient to cause severe
hypoxia in
a healthy foetus for example, cord prolapse, anti-partum haemorrhage
or ruptured uterus, having occurred. That submission
however appears
to overlook the concurrent view of the radiologists of the
possibility of the injury having been prolonged.
[3]
1980 (1) SA 191
(A) at 196E.
[4]
The hospital records produced by the Defendant are incomplete.
Records relating to crucial times during the labour process are
missing.
[5]
DT Zeffertt and AP Paizes
Hoffman
and Zeffertt’s
The
South African Law of Evidence
4
th
ed, at 183ff.
[6]
The Defendant placed considerable reliance on the Apgar scores and
submitted that had the baby been unwell this would have been
borne
out by poor Apgar scores and he would not have been given to his
mother to keep with her in her bed after his birth.
[7]
DT Zeffertt and AP Paizes
Hoffman
and Zeffertt’s
The
South African Law of Evidence
4
th
ed, at 183ff.
[8]
This
view is shared by all the experts.
[9]
In
view of Dr
Batchelder’ssubsequent
concession that syphilis can safely be excluded as a possible cause
I do not intend summarizing Dr
Kara’s evidence any further in
this judgment.
[10]
Boberg
Law
of Delict
at 278.
[11]
Dr Batchelder relied on the ACOG (American College of Gynecologists)
guidelines which specifies that a preponderance of certain
factors
must be present to conclude that HIE during child-birth caused the
cerebral palsy. At least two of these factors, namely
an early brain
scan and cord blood analysis were not done, which Dr Batchelder
testified is not commonly done in government hospitals.
Another
namely the apgar scores, were not proved by admissible evidence. Any
reliance on this guide is accordingly unreliable.
Ultimately, the
issue is also not one of precise determination of the cause of the
cerebral palsy, but what is the more probable
cause or materially
contributing factor to the cerebral palsy.
[12]
Based on the heart rate of the foetus, the Defendant has submitted
that there is no evidence that there was foetal distress during
labour. The heart rate of the foetus was 169 beats per minute which
Dr Bachelder said is normal, a foetal heart rate between
100 and 160
beats per minute being the accepted norm. The Defendant criticised
Dr McLynn’s view that the normal foetal
heart rate norm should
be between 100 and 150 beats per minute, because unlike Dr
Batchelder who bases his view on the NICE Guidelines,
Dr McLynn
could not categorically state the source of his information. In the
light of the view I have taken of the matter it
is not necessary to
deal further with this aspect.
[13]
The author of this document is unknown. As Dr Wildenboer testified,
it may have been a nurse or doctor who had regard to the
medical
records. In so far as they are favourable to the Plaintiff’s
case in establishing negligence and liability generally,
these
recordings constitute admissions by the servants of the Defendant
made in the ordinary course of discharging their duties,
which are
binding against the Defendant – see DT Zeffertt and AP Paizes
Hoffman
and Zeffertt’s
The
South African Law of Evidence
4
th
ed, at 183ff. As the staff members are obliged to make these
statements recording the medical position as it unfolds in the
record, they have an obligation to speak on behalf of the Defendant
and dispute what is recorded, if indeed incorrect.
[14]
There is not surprisingly no allegation of negligence against the
Plaintiff.
Van
Vuuren v eThekwini
2018 (1) SA 189
(SCA) paras 33 – 34, it was held that there
cannot be contributory negligence against a Plaintiff who sues in a
representative
capacity. Accordingly all that is required is a
proverbial one percent negligence that contributed to Mkhulisi’s
condition.
[15]
The Defendant’s vicarious liability for the conduct of his
staff at the hospital attending to the Plaintiff and Mkhulisi
is not
in dispute.