Nontangane v Member of the Executive Council for Health, EC (1742/2015) [2018] ZAECMHC 52 (29 March 2018)

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[2018] ZAECMHC 52
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Nontangane v Member of the Executive Council for Health, EC (1742/2015) [2018] ZAECMHC 52 (29 March 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO:1742/2015
In
the matter between:
APHELELE
NONTANGANE
obo
ESINAKHO NONTANGANE

PLAINTIFF
AND
MEMBER
OF THE EXECUTIVE
COUNCIL
FOR HEALTH, EC

DEFENDANT
JUDGMENT
DAWOOD,
J:
1.
The Plaintiff herein sued the defendant for damages.
2.
The Plaintiff alleged inter alia:-
a)
That the doctors and nurses who treated the plaintiff wrongfully
unlawfully and negligently:-
i)
Failed to monitor the Plaintiff and her foetus either
properly or
with sufficient frequency.
ii)
Failed to diagnose timeously the onset of foetal distress when

he/she/they could and should have done so.
iii)
Failed to provide proper and appropriate treatment to the plaintiff

and her foetus and/or to expedite the delivery of the foetus
expeditiously.
iv)
Failed to provide the Plaintiff and her foetus with proper or
reasonable
medical care, treatment and monitoring.
v)
Inadequately managed and monitored the plaintiff labour.
vi)
Permitted or failed to prevent the development of hypoxic ischaemic

encephalopathy (hereafter referred to as “HIE”) in the
foetus.
vii)
The Plaintiff child was born on 3 October 2013 with severe brain
defects
and was diagnosed with HIE.
viii)
In consequence of the negligent conduct the child suffered HIE of
acute profound nature,
hypoxic celebral palsy, development
delay, and serious brain defects.
ix)
The aforementioned HIE and serious brain defect were caused by the

aforesaid negligent conduct and breach of duty of care which rested
on the nurses and doctors at All Saints Hospital at all times

material hereto.
x)
The aforesaid negligent constitutes a breach by the defendant,
his
employees and agents.
3.
The defendant in its plea:
a)
Admitted that the staff were bound to employ the skill and care as
could reasonably be expected of staff in
similar circumstances.
b)
Denied any wrongful/unlawful or negligent conduct.
c)
Denied that the minor child suffered foetal distress,
alternatively,
that the staff notwithstanding reasonable monitoring could have
diagnosed the same
.
d)
Denied that the minor suffered HIE, alternatively, that the staff
could have prevented or taken any reasonable
steps to have prevented
the same.
e)
The defendant pleaded that the medical care and treatment of the
plaintiff and the minor was done with skill,
care, diligence and
supervision as could reasonably be expected of staff in similar
circumstances.
4.
It was common cause between the plaintiff’s experts and the
defendant expert that there was no compliance
with what is required
for the proper monitoring of the foetal heart rate.
5.
The report of the radiologist of Professor Andrinico, was also
handed up by consent wherein he stated
inter alia,
“
Features
are those in keeping with a global insult to the brain due to hypoxic
ischemic injury (HIE) of an acute profound nature
occurring at term”.
6.
Evidence led
a)
The plaintiff in her testimoney indicated inter alia:
i)
That she went into labour at around 1am on the 1
st
October
2015 and went to hospital at around 5pm that same day.
ii)
She had a yellowish discharge of water at around 7pm.
iii)
She remained in hospital the whole of the second with occasional
vaginal examinations.
iv)
According to her at shift change a young man examined her and took
her to another room saying she was about to deliver
and told her to
push and he left her there and went outside. This was around 6am on
the 3 October 2015. She had her phone with
her.
v)
The cleaner lady walking past saw that the head of the child emerged
and she shouted for the nurse.
vi)
A male and female nurse arrived, the female nurse arrived, the female
nurse held the baby and shifted her. The baby
did not cry and was
taken away and she was told that the baby had fits.
vii)
They had done an episiotomy cutting the plaintiff so that the baby
could come out because the head of the baby did not come
out fully.
viii)
Under cross examination she further denied that the foetal heart rate
was monitored at 4am and a vaginal
examination was done. She admits
that a vaginal examination was done at 6am but denies that the foetal
heart rate was monitored.
ix)
Then said on the 3
rd
she asked to go for an operation and
was told to go take a bath at 4am instead as she is not an old lady.
x)
The hospital notes say that her water broke or the membranes raptured
on the 3
rd
at 6am whereas her response was that it broke
in the first just after her arrival just after they had finished
checking her during
her 1
st
examination.
xi)
According to her she crawled to the toilet on the night of the 1
st
and crawled back without being given any assistance by the nursing
staff.
b)
The next witness for the plaintiff was
Dr Linda Murray
a
senior specialist in obstetrics and gynaecology at Tygerberg
Hospital.
a)     According
to her in the latent phase of labour the maternal observations are
all performed 4 hourly.
b)
The vaginal examination is performed 4 hourly but the foetal heart
rate and the contractions strength
is performed 2 hourly.
c)
The foetal heart rate would be determined by an auscultation which
refers to intermittently listening
to the foetal heart and listening
before, during and after a contraction.
d)
A CTG or electronic monitoring would have been preferable since she
was 41 weeks and one day pregnant
but auscultation would have
appropriate, that is, simply determining the heart rate by listening
using a stethoscope or a daplone.
e)
The reason for measuring the foetal heart rate before during and
after contraction is that random measurements
of the foetal heart
rate not that are not that are not timed to contractions do not give
actual information as to how the foetus
is managing the contractions
themselves, which are the hypoxic stress in labour and may give the
midwife or doctor a false sense
of reassurance.
f)
According to her the pathogram was only started at 2am when in fact
it ought to have
been started when she arrived at 6pm and this
constitutes sub-standard care.
g)
They started the pathogram when she had reached her active phase of
labour; none of the findings
from the latent phase on arrival were
plotted.
h)
No foetal heart rate was measured at 2 o clock.
i)
According to her even though it is noted N to signify no declarations
at 6am she does not
know how they came to that finding having regard
to the fact that there is no indication that they auscultated
correctly.
j)
According to her from
the notes there was no monitoring noted of the
maternal condition or the foetal heart rate from 6pm until 2am and
this constitutes
substandard labour monitoring.
k)
Failure to monitor increases
the risks that the foetus would come to
harm or that it would go unnoticed should the foetus come to harm.
l)
Even at 4am there
is still no record of foetal monitoring.
m)
All monitoring in the active phase is to be
increased.
n)
There is no record that
the baby’s heart rate was monitored at
all during the second stage of labour which lasted 45 minutes.
o)
Hypoxic means lack of oxygen
and ischemic means lack of blood.
p)
This injury was in keeping
with a baby who had brain injury at term.
q)
According to her there were
no obvious ante-natal factors found
responsible for the neurological insults since the mother has
seemingly had an uneventful pregnancy
and delivered a baby of normal
birth weight at term at the correct time.
r)
Although the latent
phase appears to be long she does not believe
that any intervention was needed or that it impacted.
s)
There is no evidence of
a sentinel event, that is, there was no
obstetric emergency.
t)
A sentinel event is
a variety of events which may occur, all of which
have the results that they cause a sudden and severe drop in oxygen
delivery
to the foetus:
i)
Placental abruption, bleeding behind the placenta, the
placenta
erupts early and is unable to function in blood supply to the foetus.
This did not occur in this case as there would have
been bleeding
noted and on the contrary the notes explicitly states that there was
no retro placental clot, which makes an abruption
unlikely.
ii)
Uterine rupture resulting baby being delivered into the abdominal

cavity through the rupture in the uterus. This did not occur in this
case.
iii)
Cord prolapse occurs when the membranes rupture and the cord

slips through the cervix and ends up outside of the uterus and
because the compression on the cord from the foetal head and because

there is a spasm – the cord then seizes to deliver blood to the
baby and the baby gets no oxygen. This did not occur in this
case as
the cord which is hanging from the vagina would be visible and would
have been documented in this case.
iv)
Shoulder dystocia where the foetal head delivers but the shoulders

stick or gets stuck behind the mother’s public symphysis bone
and during that time the baby gets virtually no oxygen. There
is no
documentation that this occurred either.
v)
Maternal collapse (cardiac arrest/ maternal haemorrhage) of
a mother
or her collapse during labour would result in her seizure to pump
blood around her own body and she would then not be
able to perfuse
the placenta. None of these occurred in this case.
vi)
She conceded however that anything that
happened where you were
suddenly left with a complete cessation
of blood
supply
or
oxygen supply to the foetus would function as
a sentinel event
but stated that from the records there is no identifiable sentinel
events.
u)
According to her the cause of the
insult was accordingly labour
itself
, as they cannot identify a specific complication or event
in the labour to explain the foetal condition.
v)
The monitoring was
not adequate enough to make any inference about
the foetal condition
or whether or not the foetal
condition
changed
from normal
to abnormal
and at what
point that
happened cannot be said.
w)
In her opinion it may well have occurred and she feels that it
probably did occur but the monitoring was
not adequate enough to
detect that change
.
x)
In the second stage there is no record that the foetus was monitored
at all during that time in the labour
documents and accordingly no
documentation of the foetal condition during the second stage of
labour.
y)
Her conclusion was that the care was
substandard during labour
because
:
i)
The monitoring of both/ maternal and foetal condition as well as
monitoring of the labour
itself were extremely poor during the latent
phase of labour with no monitoring for a period of 8 hours with
guidelines being that
foetal heart rate be monitored every 2 hours
during this phase.
ii)
There was a failure to auscultate adequately or properly even when it
was done, that is, it was not
done before during and after
contractions.
According
to the guidelines the foetal heart rate had to be monitored every 30
minutes during the active stage from 2am until delivery
meaning there
had to be at least 9 references during this time.
iii)
According to her the current neurological condition was most likely
caused by intrapartum hypoxia according to
the various experts and
then the poor intrapartum care received must be considered to be
causal and contributory.
z)
It is likely that had adequate foetal monitoring been performed a
change in the foetal condition would have
been evident during labour
and that is the reason for monitoring.
aa)
If she was properly monitored change could have and should have been
readily evident to any midwife or doctor.
bb)
There is no reference to any
sentinel event so ample time should
therefore have existed both to fully evaluate the foetal condition
and optimise it should the
condition have seemed to be poor.
cc)
Any neurological insult arising from intrapartum hypoxia can
therefore be seen to have
been probably preventable
.
dd)
Professor Buchman’s report was put to her for comment where he
conceded that the foetal heart rate assessment in the active
phase of
labour was not followed as recommended in the national guidelines.
(i)
The heart rate was assessed only 3 times from 2 o clock to the birth
at 6h45.
(ii)
He stated however that the foetal heart rate was normal with no
declarations at 6 o clock.
(iii)
He conceded that optimal foetal heart rate monitoring would
have
detected a catastrophic hypoxic ischemic event after 6 o clock.
(iv)
He found that it would have been difficult if not impossible to
deliver the infant rapidly enough either by vacuum extraction
or
caesarean section to rescue her from the acute profound hypoxic
ischemic episode.”
ee)
She stated that she was not convinced that the foetal heart rate was
normal at 6 o clock and although the partogram says there
were no
declarations she is not sure how the foetal heart rate was
auscultated then, if it was auscultated at all.
ff)
She is also of the view that because the monitoring throughout the
entire labour was of such poor standard
and there were so few
references to the foetus she is not convinced that simply because of
one number documented at 6 o clock we
can confidently state the baby
entered the second stage of labour without any signs of foetal
distress.
gg)
It is possible that optimal foetal heart monitoring would have
detected a catastrophic hypoxic ischemic event.
hh)
According to her in the second stage it is imperative that it is
extremely carefully monitored and managed and there is intervention

that should be done. She disagrees with the generalisation that
because it was in the second stage and it was an acute event that

there was no management that could have altered the outcome.
ii)
According to her a forceps or vacuum delivery could be done or if the
delivery was not eminent then she could
have been turned on her side
to buy time to do a caesarean section.
jj)
In this
case no one was aware that the foetus was not coping.
kk)
According to her a cord compression which usually occurs in the
second stage usually
shows itself with bearing down efforts
.
ll)
According to her a
cord compression
could
be
detected
with
monitoring,
if the cord compression was severe enough
that the foetus was becoming hypoxic thereon there would be a delay
in the
return
of the
foetal heart rate baseline
.
mm)
It was put to her that according to the guidelines only provide
for
recording in the parthogram during the active phase of labour and she
conceded that failure to note findings during the latent
phase was
not tantamount to substandard care, in terms of the new guidelines.
But this occurred in 2013 and she was kept in hospital
and was 3cm
dilated not far from being in active labour.
nn)
She was kept at a health facility yet not monitored.
oo)
It was put to her that not all partograms made provisions for before
during and after monitoring of foetal heart rates and her
response
was that this one did but it was not noted.
pp)
She accepted that the N meant that there were no decelerations at 6am
but said her point is that there was very inadequate monitoring

throughout the labour, the labour was not monitored adequately and so
she is not convinced that a single N at 6 o clock connoted
good
foetal condition up until that time.
qq)
According to her if you find yourself with a very sudden acute and
profound sentinel event the foetus may fall quite quickly
into a
foetal bradycardia. And you may also have a situation where the
foetus elicits as a diving reflex where the foetus shunts
blood to
the brain, just to protect the brain at the expense of the other
organs.
It
is similar to a child that is a drowning. If you take a contraction
as a brief period of time when there is no oxygen, it would
be like
having a child or a person and you hold the head under water and for
that period of time there is no breathing and there
is no oxygen. But
when the head pops up, you take a big breath and there is oxygen and
you are alright. If you were held under
for too long then you become
too hypoxic to recover easily and if you were held under over and
over again you may never actually
get enough breath in between to
actually maintain full oxygenation. In cases of labour,
ongoing
contractions where hypoxic stress occur is similar to a child who
falls into a swimming pool and there is a period where
the foetus has
reserves and tries to maintain his/her oxygenation
and you can
go
in and pull that child out while it flounders but if it
flounders for long enough once the child goes under that child is
gone.
rr)
It was put to her Acute profound is that moment when everything fails
and the oxygen and the blood supply to the
brain fails.
ss)
According to her this does not mean there was no warning signs or
opportunity to take that child out.
It
is not
akin to a catastrophic
event such as a sudden
heart
attack
or
uterine rupture
where that child went down
before you could
pick the child out of the water
.
If
it is simply the physiological mechanism of labour being contractions
that caused the child to get damaged then there
must have been
signs
that the child was struggling and on the
probabilities
there are
normally warning signs
.
tt)
She
conceded that this is an acute profound situation
but
stated that in many instances where the labours were mismanaged it
resulted in an
acute profound injury.
uu)
She
agreed with the definition
that acute
profound meant a
sudden
,
unexpected, without warning, great or intense
event but said that that was
the final event that caused the brain
damage
.
She
persisted that there are signs that babies are not tolerating
contractions and labour that is why they are monitoring babies
in the
second stage of labour.
She
accepted the definition of sentinel event in Stetman’s medical
dictionary as “
an unexpected occurrence resulting in death,
serious injury or risk to the patient”.
vv)
She believes on the probabilities that the
foetus would have shown
signs that it was beginning to not tolerate labour.
ww)
She accepted that there could be on acute profound
event happening
without a warning but wanted to know what that unknown event would be
that caused a
sudden cessation of oxygen supply
.
According
to her there is nothing in the records to explain the event but what
is clear is that there was an
unmonitored labour
and
labour
is hypoxic stress
and this is a
labour related injury.
It
was put to her that an acute profound incident is not caused by poor
intrapartum care.
Her
response was that the warning signs
were not detected because of
poor intrapartum care
.
Even
if that acute profound happened without any warning the monitoring
was still so poor that this was completely
unnoticed and there was
no attempt to try and alleviate or remedy or deliver the baby.
xx)
It should have been
picked up and action taken accordingly to her
even if it was a sudden event happening without warning
.
yy)
She accepted that you cannot always prevent the acute profound injury
if it occurs as a sudden catastrophic sentinel event.
But according
to her where the
unexplained sudden event happens and it is picked
up
as to whether
there is still an opportunity for
intervention
, She believes that the 5/10 minutes can make a huge
difference and
an attempt could be made for a vacuum delivery,
forceps delivery or caesarean section.
zz)
According to her in this case the neurological insult arising from
intrapartum hypoxia was probably preventable because
she does not
think or believe there is evidence of a sentinel event
, none of
the typical
obstetric sentinel events.
aaa)
According to her depending on when the injury occurred it
was
probably preventable
.
bbb)
She cited Professor’s Buchman’s article as support
for
her proposition that labour per se caused this incident. At page 32:
“
The
primary cause of death were labour alone in 82 cases out of the 102
that is 80 percent of cases.
The
most striking finding in this study was the failure in most of these
deaths to detect signs of foetal distress and it is likely
that these
babies would have shown evidence of intrapartum hypoxia during
labour”
That
concluded her testimoney
c)
Professor Johan Smith
the head of the Neonatal services at the
Tygerberg Children’s Hospital thereafter testified on behalf of
the Plaintiff.
a)
According to him there were
no complications
, disease or
illnesses recorded in the Plaintiff, the baby’s physical
measurements, the weight, the head circumference and
length was
normal.
b)
Foetal growth was not hampered
by placental disease or maternal
disease.
c)
The normal head circumference
at birth is in keeping with a probable
normal developed and grown brain.
d)
The fact that the child
now has microcephaly that is a smaller than
expected head circumference for age is evidence that an insult
occurred to the foetal
brain during labour and/or immediately after
birth which stunted brain growth thereafter.
e)
This pregnancy was
low risk and the reasonable expectation was
that the outcome would have been an uncomplicated labour followed by
birth of a neurological
normal baby.
f)
This did not occur.
g)
The plaintiff was timeously
admitted on the 2
nd
October
2013. She was in early labour or latent phase of labour and her
initial examination revealed no abnormalities.
h)
The foetal condition on
admission was probably reassuring.
i)
Very poor and inadequate
and sub-standard reviews of labour then
became evident upon reviewing the maternity case record in that:
(i)
Between 6pm on the 2
nd
October and 2 am on the 3
rd
October – no maternal or foetal observations were checked or
recorded.
(ii)
Between 2am to 7am, the active phase of labour the foetal heart rate
was checked on 33% of occasions. It should have been checked at least
on 9 occasions according to the recommendations.
(iii)
The foetal heart rate
was never recorded during the second stage
of labour which lasted between 6am and 6:45am on the morning of the
3
rd
of October
.
(iv)
The foetal heart rate was never recorded before, during or after a
contraction
because these would have been indicated by the recording
of either a circle or an X on the partogram.
(v)
The low Apgar score of 5 suggested that
there must have been
detectable foetal heart rate abnormalities before birth
but that
these were
not detected because of sub-standard intrapartum foetal
monitoring
.
j)
According to him
there is warning
in cases of
acute
profound hypoxic injury
and there are
detectable foetal heart
rate pattern abnormalities
.
k)
Professor Andrinico described
the
injury
as being associated
with acute profound hypoxic ischemic event
and reasonably
excluded inflammatory congenital and genetic abnormalities.
l)
According to him you
do not need a sentinel event to have this
pattern.
m)
According to him the articles by Yamada quoted sub-optimal,
intrapartum obstetric management emerges as the most likely probable

cause or factor
in cases where there is no sentinel event
as in this case
.
In that there was failure to detect
signs of foetal distress, deficiency
in intrapartum foetal
monitoring
, missed
foetal heart rate decelerations,
prolonged second stage of labour.
n)
He is also of the view that
in light of the fact that no record
exists to show appropriate monitoring and management of the oxygen
levels that is highly likely
that oxygen was administer irresponsible
administered and that hypoxic ischemia occurred which aggravated the
brain injury.
o)
He read out Professor Buchman
opinion
“
Even
with optimal foetal monitoring in labour with the detection of a
catastrophic event in the last 30 minutes, delivery of the
baby would
probably not have been sufficiently rapid to prevent hypoxic ischemic
brain injury”.
p)
According to him he disagrees
with Professor Buchman that there is no
evidence of negligence in light of the fact that:
i)
There was an adverse outcome for which no cause other than
intrapartum injury could be identified.
ii)
He acknowledged abnormal and substandard monitoring yet failed to
acknowledge that the prescribed appropriate
clinical response
designated to avert adverse outcome did not occur.
iii)
An inadequate level of care needs to be considered and his reasoning
around what amounts to a breach of legal duty
of care is
unsustainable.
iv)
Substandard care led to the outcome as no steps were taken.
q)
He accepted under cross
examination that the
i)
M.R.I finding is of an acute profound event which is the
classic
basal ganglia injury in this stage.
ii)
The cause of hypoxic ischemic event is unknown.
iii)
He stated that classically in the clinical realm they cannot speak
of
a sentinel event if those that he had listed are not there.
iv)
According to him you can get the
same images in the absence of a
sentinel event.
v)
He however conceded that it was in the
absence of a known
sentinel event.
vi)
He then went on to state that if there is an unknown cause of the
HI,
it is not sentinel.
vii)
The 1998 article by Okumura was put to him where it was shown that 5
of the 11 cases involved acute profound incidents
where the causes
were unknown
and where
the event occurred without a warning
such as the one in this case and he agreed
.
viii)
According to him the articles did not consider it a sentinel event
but considered
it an acute profound event.
ix)
According to him the onus is on the doctors, nurses when they
detect a sudden change a conversion pattern in a foetus to act
immediately
and determine how severely it affects the foetus and
institute interventions to relieve that
sudden change in the
foetal condition whether it is known or unknown.
x)
He conceded that in his report he referred to them
as sentinel
events
when referring to the article and in court he referred to
them
as acute profound events
.
xi)
He accepted that the foetal heart rate at 6 o clock was 134 which
is a normal numerical value but it does not say anything about
the
foetal heart rate before during and after a contraction and it does
not tell anything about variability whatsoever. He stated
that
he
could not accept that this reading
implied that
the foetus was
in a reassuring position
at that time because a number like that
on its own does not mean anything, despite the fact that it was noted
that there was no
decelerations.
xii)
He does not know whether this was taken before the contraction
and what happened during the contraction and after the contraction.
A
ccording to him the defendant would have to come and give
evidence as to what they wrote down here in respect of the
contraction.
xiii)
According to him on admission the foetus was likely in a
reassuring condition or else he would have shown signs of partial
prolonged
hypoxic ischemic brain injury on the M.R.I or may not have
survived.
xiv)
He was referred to the 3
rd
group in Murray’s article
where 2 with acute bradycardias the causes were not known and they
were considered sentinel and
there was no warning because the heart
rate changed 22 minutes before delivery and he accepted that was so
he was then taken to
Rennies article
xv)
It was put to him that this was a catastrophic event, the acute
profound and
he disagreed saying that it was more likely that there
was forewarning that was not detected because it was not monitored
properly and that culminated in a final insult that was catastrophic
.
xvi)
According to him you
cannot conclude from the MRI that it was an
acute catastrophic event based on the probabilities
.
xvii)
He was not prepared to conceded that from MRI you could similarly
not conclude that it was not an acute profound
event
saying he will
leave it in the hands of the case
.
xviii)
He stated that you can have a perinatal, that you can have a basal
ganglia, thalamus, so called
acute profound MRI image in the absence
of a perinatal sentinel event.
xix)
He conceded that you can also have it in the presence of a
perinatal sentinel event
.
xx)
He however did not concede that there are
no probabilities
either way
saying that there is more
for the probability that
there was forewarning.
xxi)
It was put to him Professor Buchman stated that even with optimal
foetal monitoring in labour with a
detection of a catastrophic
event
in the last
30 minutes before
delivery of the baby
one would probably not have been sufficiently rapid to prevent
hypoxic ischemic brain injury.
xxii)
According to him in 30 minutes you could expedite delivery
especially in this case where she was fully dilated at 6 o clock. It
is probable that you would have a relatively good outcome.
xxiii)
He however
conceded that
after a catastrophic event brain
injury can occur from 10 minutes upwards.
xxiv)
According to him a vacuum extraction can be performed within 15
minutes.
xxv)
It was put to him that the midwife would have to make that call
then call him that the midwife would first have to call the doctor

who might take a little time in getting there and assessing the
situation then getting the equipment and performing the procedure.
xxvi)
He stated that he would defer to Dr Murray the obstetric expert
in this regard.
xxvii)
It was put to him that Professor Buchman states that they may
have been insufficient time and that there was probably a
catastrophic
event in the last 30 minutes.
A
ccording to
Professor Buchman injury occurs within 15 – 25 minutes after
acute profound asphyxia.
xxviii)
According to him the time period
depends on a balance between
foetal reserves
, the
uterine contraction
, the
duration
,
the
severity and one never knows
what the severity is.
xxix)
It was put to him that studies show that where there was no
warning, there was brain injury within 10 – 15 minutes and he
agreed with these findings. He also accepted that with an acute
profound after 40 – 50 mins the baby will be dead according
to
same studies.
xxx)
He accepted that children with longer insults tendered to have
damage both to the deep grey matter and to the sub-cortical white

matter.
xxxi)
He accepted that
in this case there is no damage to the
sub-cortical white matter.
xxxii)
It was put to him that in this case there was no evidence of
decelerations and his response was that it was not properly
monitored.
xxxiii)
According to him 134 and 136 are normal heart rates at that point
in time but do not indicate what the heart rate was before during
or
after each contraction and were taken at least 2 hours apart.
xxxiv)
It was put to him that the defendant’s case is that
after
6 o clock
an acute
sentinel event
occurred
which
was
without warning
and because it
is unknown
when it
occurred
it cannot be linked to the outcome.
xxxv)
He disagreed with that saying they would have been able to
ameliorate the outcome saying
that there is
forewarning
there is a
change
in the
foetal heart rate
pattern
and then when
the foetal reserves
and labour
insult acute
profound injury occurs
.
xxxvi)
He accepted that Rennies article did not deal with
prolonged
partial damage
but with
acute profound injury
with acute
profound dealing with damages to the basal ganglia and thalamus and
referred to it as a catastrophic event. He went
on to read that
children with longer insults tend to have a damage to both the deep
grey and the subcortical white matter and there
was no white matter
damage in this case.
xxxvii)
According to him one of the examples does show a completely
normal preceding heart rate establishing that there are problems
coming
in some cases. He conceded that in some cases there are
forewarnings and in others there are not and effectively he cannot
say
whether or not there was.
xxxviii)
He accepted that acute is usually sudden and profound is deep is
great deep or intense damage. That sudden means occurring
unexpectedly
or without warning or abnormally rapid.
Catastrophic
means sudden great damage.
xxxix)
He
accepted that there could be cord compression without there
being any evidence of it because of the intermittent pressure it will

not leave an impression or footprint
. Cord compression occurs
when the baby comes down and the oxygen is cut off. Cord compression
even though it is unidentifiable
was linked together with other known
perinatal sentinel events.
xl)
It was put to him that with an acute HI event the
CTG does not
show a warning and therefore what follows cannot be prevented because
of a warning.
According to him it can be prevented if you react
and
there is enough time
.
xli)
His response was that there is forewarning even okumara’s
second case there was forewarning. Once the incident occurs then
time
is of the essence.
xlii)
It was put to him that Professor Buchmann agrees with him that
the first tachycardias, those are the spikes going up, he says that
that is quite normal in the context.
xliii)
There are one or two that
may be showing a warning
but it
was not
such that he would have intervened
and the
graph is
compressed
. His response was that there was forewarning that
there was a problem that needed investigation.
xliv)
He was then referred to Williams, 2014 edition which defined a
sentinel event as adverse obstetrical events that may lead to
catastrophic
clinical outcome and he agreed.
xlv)
He was in agreement that the listed sentinel events were sentinel
events being ruptured uterus, placenta abruption, cord prolapse
and
amniotic fluid embolism. Adcock the 2014 book by the American college
however, as was put by Adv Be Bruyn, listed these as
examples and is
accordingly not a closed list.
xlvi)
Stedman’s Dictionary 7
th
edition defines
sentinel event as “a type of clinical and unexpected occurrence
resulting in death or serious injury …
to the patient.”
xlvii)
He accepted that in 2013 Nelson Mandela did not do cooling and
that all saints did not have an intensive care facility do it.
xlviii)
He conceded that since there were no records with regard to the
concentration of oxygen given his views in this regard were
speculative.
That
concluded his testimony.
d)
The next witness called was
Professor van Toorn:
i)
He is the head of Paediatric Neurology at Tygerberg hospital in Cape
Town.
ii)
His conclusion was that the brain injury occurred intrapartum, in
other words, during the process of
labour.
iii)
He also states in his report that at paragraph 10 page 35
“
Acute
total asphyxia or near total asphyxia is a complete or near complete
interruption in the supply of oxygen to the brain
”.
iv)
It is expected that only extreme intrauterine events like a placental
abruption, uterine rupture, maternal cardiac
arrest or problem with
the umbilical cord will result in a sudden profound asphyxia.
v)
In the absence of recording of such a catastrophic event the
scientific literature reports that
suboptimal intrapartum
obstetric care is the most probable cause.
vi)
According to him there was no sentinel event here.
vii)
Rennies article states that probably more applicable in humans is
that
we have a severe cord compression of an intermittent nature,
which it most likely happened in this case because of the absence of

a sentinel event
.
viii)
If
you have a
total interruption of blood
to the brain
where
you have no blood going to the brain then you have an insult.
ix)
If you have a
severe insult
and if that is
sustained you
end up
with
brain damage
within 15 to 40 minutes that
the article mentions from animal experiments.
x)
You can have a situation that is
intermittent but total
where
the cord is completely blocked so there is no blood flow to the brain
and you cannot shunt blood but because at the time the
umbilical
artery reopens there is more time for compensation to occur.
xi)
Because the insult then occurs over a
longer time
there is
more opportunity for earlier intervention.
xii)
According to him there is a distinction between cases where there
is
a clear sentinel event report
in the
notes
and in those
cases
that is not preventable
and predictable and those cases
are not pursued.
xiii)
However
there are cases where you have
an acute total without a
sentinel event which could be due to intermittent complete cord
obstruction
.
xiv)
He quotes
Professor Buchman’s report where it was stated at
page 31
“
the
most striking finding in the study was the failure in most of these
deaths to detect signs of foetal distress.
…
“
It
is likely that these babies would have shown some evidence of
intrapartum hypoxia during labour … it appears that there
is a
serious deficiency in intrapartum foetal monitoring at the hospitals
studied and probably in most south African state hospitals
in south
Africa.
It
seems likely that insufficient time and care is taken with
auscultation and that the early sign of foetal heart decelerations,

are frequently missed……
Women
who are pushing in the second stage of labour should not be left
alone and foetal heart rate auscultation must be done after
each
contraction to confirm return to the baseline.
This
will allow early detection of foetal bradycardia and appropriate
action can be taken.
Labour
related intrapartum hypoxia is common and avoidable cause of prenatal
death in SA and the majority of the death occur in
low risk
situations where labour appears to be normal, the overwhelming
problem seems to be failure to detect evidence of foetal
distress.
To
prevent these unnecessary deaths the emphasis in the labour word
should be close and careful monitoring of all women in labour
with
particular attention to detail in foetal heart rate monitoring”.
xv)
Under cross examination he indicated that you
do get a forewarning
if you have a non-sentinel event example when there is intermittent
cord compression
. According to him you can have deep grey matter
damage without a sentinel event.
xvi)
According
to him the M.R.I suggests that there was a
severe injury
were there
was no blood going to the brain, but it could have
been of an intermittent nature.
The
presentation is the same because there is
no blood going to the
brain in the situation of an acute profound and partial prolonged.
xvii)
The definition
given by Williams, of the sentinel event are “
adverse
obstetric events that may lead to catastrophic clinical outcomes”.
xviii)
According to him what is predictable
is if you have foetal heart
abnormalities and you do act upon them then that is predictable as
the cause of injury.
xix)
He agreed
that in this case that it is an acute profound injury of a
catastrophic nature.
xx)
He agreed that sentinel events are normally catastrophic events.
His
response was that the listed examples the mechanisms of injury is
different and both mechanisms can cause an acute severe injury.
The
one is where you have
no blood going to the brain
because of a
uterus that ruptures or a placenta that just detaches or a mother
having cardiac arrest and there is nothing you can
do about it. The
other situation is where you
have a cord that is compressed
completely
but the time interval is
different
. It is
not sudden and sustained
. It occurs
suddenly
but it
occurs
intermittently, frequently
the difference between the
two is the one is
unpredictable and occurs without forewarning
.
The other one occurs over
a longer period
and there is
forewarning
because there are
foetal heart rate
changes
and
intervention can be offered
.
Both
causes acute profound to the brain but the mechanism of injury is
different
.
It
is not a single isolated event, it occurs over a time span.
The
MRI would not assist in determining what the cause was
It
is most likely that there
was intermittent severe cord
compression obstruction.
xxi)
According
to him intervention can be offered if there are foetal
heart rate changes
before the insult becomes injury
.
xxii)
Prolonged cannot
be seen on the MRI and that’s why the MRI
refers to acute total as there is
no shunting during this
period and the brain
cannot compensate and the centre core is
damaged.
xxiii)
According to him it is well
described in the literature that you can
have an acute profound without a sentinel event and since it is not
described in the maternity
case notes nor by the obstetric experts
why should he doubt it.
xxiv)
Acute total
does not always occur in the context of a sentinel
event
.
xxv)
He agreed
that acute profound is any unexpected serious event which
is the definition of a sentinel event.
xxvi)
He agreed that a
cord prolapse
was a sentinel event.
xxvii)
He accepted that a compressed cord was
defined as a sentinel event in
one of the articles.
xxviii)
The defendant’s case was put to him that it
was an acute
profound injury with probably not enough time to intervene.
xxix)
According to him it was a
cord compression
and not a classic
“
sentinel event”
because the mechanism differs the
foetal heart rate changes during the period.
Insult does not
equate to damage
.
In
the period where you have insult and not damage if you intervene then
you may not have a child who is damaged.
That
concluded his testimony and the Plaintiff case.
e)
Defendant calls its first witness,
Professor Johannes Buchmann
i)
He accepted that the foetal heart rate was not monitored every 30
minutes during the second
stage of labour and that it was only
monitored 3 times from 2h00 to 6h45. However the foetal heart rate
was normal with no decelerations
at 06h00.
ii)
According to him it was possible that optimal foetal heart rate
monitoring would have detected a catastrophic
hypoxic ischemic event
after 6h00.
iii)
However had such a finding having been made, it would nonetheless
have been
difficult,
if not impossible to deliver by vacuum
extraction which takes about 20 minutes or caesarean section which
takes 30-60 minutes to
rescue from the acute profound hypoxic
ischemic episode.
iv)
He quoted the articles wherein 19 min was the average in a large well
staffed delivery unit with resident senior
training obstetricians and
anaesthetists present.
v)
According to him the imaging findings of acute profound hypoxic
ischemic brain injury suggests
a short period of
severe injury
close to deliver, probably in the last 30 minutes.
vi)
According to him even with optimal foetal monitoring in labour with
the detection of a catastrophic event in the
last 30 minutes of
delivery of the baby would
probably
not have been sufficiently
rapid to prevent a hypoxic ischemic brain injury.
vii)
The risk of below the standard monitoring is that you will miss
something which you
could act upon and prevent a bad outcome
viii)
The
risk in this case created by suboptimal foetal monitoring in his
view
did not contribute or cause the hypoxic ischemic event
because of the nature of the event, the short duration, the sudden
onset without warning that is hallmark of acute profound event.
The
event was acute profound acute meaning sudden and short profound
means severe and without warning.
ix)
According to him a nurse would have only have written N meaning no
decelerations if she had monitored the heart
beat before, during and
after contraction. The 134 foetal heart rate was during the second
stage of labour where the head rapidly
descends and the woman gets
the urge to push.
x)
He quoted Okumura’s article at page 569:
“
Although
a history of severe and acute problems such as umbilical cord
prolapse, uterine rapture was common the origins of foetal

bradycardia was not determined in some patients including 2 infants.
As to our patients cardiography actually indicated the well
being of
the foetuses until sudden fall of foetal heart rate. This fact
suggests acute near total asphyxia.”
xi)
Prof Buckmann stated that in this case we have acute profound which
would be acute near total asphyxia. Once such
a situation occurs it
is very difficult to save a foetus from irreversible brain injury.
xii)
It was put to him that Dr Murray had stated that because there was no
identifiable sentinel event it means that labour itself
was the most
likely cause.
According
to him the drowning scenario would result in a partial prolonged
where there is intermittent asphyxia which allows compensation
in the
baby to move blood.
xiii)
According
to him the suboptimal monitoring in this labour cannot be
considered causal or contributory to the cause, because
the acute
profound event was sudden, severe and without warning and it lasted a
short time to cause damage
.
xiv)
The
risk caused by
not monitoring correctly
cannot be
considered causal to he outcome
of hypoxic ischemic injury,
because the injury
was sudden without warning
, severe and
of
short duration
to cause
severe damage
in the baby and
intervening for example
, vacuum delivery or caesarean section
would have taken longer than the duration of the injury.
xv)
He concedes that the monitoring and the treatment of the plaintiff
according to the hospital records was inadequate and
did not comply
with the guidelines of South Africa and that the care was substandard
but states it was not causally connected to
the outcome.
xvi)
He conceded
that he relied on the notes that the baby’s
condition was probably good at 06:00
but stated that even if it is
found that the partogram is not accurate and reliance cannot be
placed on the partogram his opinion
would not fall away that the
substandard care and monitoring had no causal connection with the
outcome because of the fact that you
have an acute profound
event which takes 15-25 mins to cause the type of damage that was
seen and that it likely happened in the
last 30 minutes based on
similar causes written up in journals like
Pasternak and Okumura
and the absence
of any evidence
to the contrary
in
connection with warning from any other authoritative sources
. So
even if the
monitoring was completely absent
, the likelihood
that the event happened in the last 30 mins remains and that that
event lasted 15 – 25 mins and that
the opportunities for
intervention are not likely to effect a good outcome
.
xvii)
According to him
if it is acute neonatal asphyxia then you will
probably not manage to save the baby by doing all your interventions.
But if it
is one of those partial prolonged second stage then
certainly monitoring will make a difference. The acute profound are
exceedingly
difficult to prevent
xviii)
He confirmed that he based
his report on Rennie who refers to
Pasternak and Okumara and he also refers to Murray.
xix)
He stated
that he could give an opinion on these articles because the
events happened to these unborn babies in the uterus despite being
published in paediatric journals. The foetal heart rate was is in the
uterus are the acute catastrophic events of the cord, the
abruption,
the ruptured uterus, all obstetrics, the outcome is a paediatric
neurological outcome. He stated that you have to link
outcome with
cause and it’s multidisciplinary. The result and management of
it is paediatric but the cause is multidisciplinary.
xx)
He did not concede that the application for the literature on brain
damage that a foetus sustained as a result of oxygen
deprivation is
in the field of paediatrics and not obstetrics stating that if the
damage is sustained in the uterus it makes sense
that obstetrics is a
speciality that is involved and in any event he is a maternal and
foetal sub-specialist which involves medical
disorders of the mother
and disorders of the embryo, the foetus and even going into the
newborn period.
xxi)
He stated
that he noted the following when looking at the partogram:
a)
There is an inconsistency in terms of moulding and caput being
charted in at the time at 3am where
in fact it looks like no vaginal
examination was done.
b)
They left out duration in hours in labour.
c)
They have put in ruptured membranes
d)
They did not write any decelerations under the foetal heart rates at
03:30 and at 04:30 so there
is no evidence that they listened before,
during or after contraction.
e)
They entered the contraction marks in the oxytocin row.
f)
They have written blood pressure, pulse, temperature and urine
g)
The put up a ringers lactate drip around the time of delivery.
h)
There are errors in the completed partogram and there are
deficiencies as well.
i)
He conceded that this partogram provided for columns to denote what
the heart rate was before
during and after the contraction but stated
that if they were not trained in this format then they would write no
decelerations
at the bottom because that it what they were used to
which would be reassuring to him that they must have listened before,
during
and after.
j)
He conceded that he interprets it is that she listened properly
before during and after and
takes it at face value because she has
written it.
k)
According to him maternal monitoring was okay and reasonable, foetal
monitoring was substandard.
l)
According to him there still is the problem with the event because of
its signature acute profound nature
as seen in the
MRI
,
is
still
timed to the
end of labour
and is of
short
duration
and
has no warning
and is
severe
and
sudden
so it is
hard to say
that the
suboptimal care
where the plaintiff might have been
left alone
for a period
after her last vaginal examination when she was told to push
would
have made a difference
.
m)
According to him the nature or acute profound injury to the brain is
that it would have happened so
quickly that no action could have
prevented or minimised it and he quotes Rennie in this regard
. In
the vast majority of these acute profound happen the injury is
permanent and severe within 15 – 25 mins and it does not
allow
a caesarean section or a vacuum delivery and in Murray’s
article the worse group was 12 to 28 minutes.
n)
It was put to him that Dr Murrays, Prof Smith and Professor  Van
Toorn often get
acute profound injury
after previous CTG
recording showing that at least
there were warning signs
,
if
not in many cases distress
. His response was they should write it
up and submit it for peer review then it can be used in court until
then they can only rely
on what has been published which are the
articles discussed. They cannot look at that work unless it is peer
reviewed and has been
through the proper methodology and evaluated
that it gets published.
o)
According to him decelerations on their own do not imply that there
is a warning. If there is warning
there should be a partial prolonged
event, because it is gradual compensation of the baby to worsening
hypoxia. According to him
in the case cited by the
Plaintiff there
was no agreement on the decelerations in the baby’s heart rate
it was of
poor quality
and
could have picked up her
mother’s heart rate
which might
look like a deceleration
of the baby’s heart rate because it is lower.
p)
It was put to him that he as an obstetrician does not know what the
effects on various degrees
of bradycardia will be on an MRI scan, the
clinical picture. His response was that he would know, because the
literature has given
us the evidence, that acute profound is
associated with episodes of severe bradycardia. That in Pasternak, in
Okumura and its about
obstetrics and the effects of intraverine
damage to the foetus through cord compression and then we see the
outcomes clinically
on MRI scan. That there is scientific evidence
which has linked acute profound events, acute catastrophic events,
acute profound
episodes with a CTG tracing and the bradycardia is
severe.
When
you get near total or total cord compression there will always be
severe decelerations and if it is sustained, severe bradycardia.
That
is how a foetus reacts to cord compression.
The
scan report is very similar to other cases of acute profound, its
basal ganglia,
This
one did not affect associated periventricular white matter
It
was a very typical acute profound insult on the MRI.
q)
According to him he is an expert in how the aetiology of brain damage
occurs in the child and is
part of his expertise as they deal with
hypoxia and ischemia in the foetus how a foetus deal with the lack of
oxygen. This is meant
to be part of the basic knowledge of every
obstetrician.
He
stated that he does not
know as much about paediatric neurology
as Professor Van Toorn but
does know about foetal responses
to
hypoxia and ischemia
and his knowledge is comparable to that
of paediatric neurology and neonatal disciplinary area that we
dealing with.
r)
He conceded that the articles dealt with bradycardia of
unknown
origin
but if he was asked for an explanation the most likely
would be a
cord that gets into a small space
and when there is
pushing it is suddenly
compressed and remains compressed until the
baby deliver
s. There is no other feasible explanation.
s)
It was put to him that both Dr Murray and Prof Van Toorn said that
the cord would compress as you
would get during a contraction but the
heart rate will not recover immediately to its normal level, because
of that compression
there is slower recovery and that may happen
intermittently
, eventually the foetus cannot handle that
anymore and you have a complete bradycardia.
He
disagreed that it was intermittent complete because that would have
given a partial prolonged picture.
t)
He confirmed that the failure to monitor did not contribute to the
outcome because of the
short duration, sudden onset without
warning
and severe that it was severe enough to cause the damage
that it did. It was so severe that the foetus was unable to shunt
blood.
In acute profound you would not have a two hour warning
because then the brain would make a plan and divert the blood.
u)
He confirmed that this was contrary to the evidence of Professor van
Toorn and Professor Smith
but re-iterated that we were talking about
matters of the foetus inside the uterus and it is in his area of
expertise
.
v)
He confirmed that this is the nature of acute profound but there is
always variability in biology
so you cannot say that that will be the
position in all cases but there is
a very high probability
.
w)
He confirmed that he had done no studies personally to see what
periods are relevant for an acute profound
injury to show on an MRI
scan but relied on the studies that had been conducted. It is an
interpretation as well as a background
in foetal physiology,
obstetrics and knowledge over 26 years. It’s a mixture of
experience in the speciality of discussions
of seeing cases but he
had not done any original research on this. According to him if you
have a 20 to 25 minute sentinel event
with
near total asphyxia
more than half of those babies will have damage to the deep grey
matter
and will have problems if they survive according to the
literature.
x)
It was put to him that Dr Murray had said that if there was proper
monitoring in this case they
could have turned her on her side,
stopped the contractions with medication, given her oxygen etc. His
response was that it could
not be done in this patient because here
the woman is pushing she is delivering. You cannot undo that and take
her for a c-section
you would have no option there you must deliver
her. The head was down the pelvis, the process was irreversible to
deliver through
the vagina, Caesarean was not an option.
y)
According to him Basal ganglia thalamus injuries are the signature of
an acute profound insult
and professor Andronico’s report
states that these are in keeping with
an acute profound
. That
is the MRI signature of an acute profound, basal ganglia thalamus, or
also known as deep grey matter. There
are no other causes that he
knows
but concedes that he is going into radiological territory.
z)
Prof Andranico did not specifically mention the term basal ganglia
but did say that the features
are in keeping with
a global insult
to the brain due to hypoxic ischemic injury of an acute profound
nature occurring at term
. A pattern much like this may occur with
some metabolic disorders, but the patients with such disorders have a
different clinical
presentation.
aa)
According to him global means the whole brain becomes ischemic and
hypoxic and therefore the most vulnerable tissues,
which is the deep
grey matter, gets damaged because they have the highest metabolic
rate and goes first if the global insult continues
the whole brain
gets involved and then the baby dies. The global insult would have
taken 10-40 minutes to occur and he referred
to Pasternak and Okomuru
in this regard.
bb)
He confirmed that Yamada’s article found that suboptimal
intrapartum care is a major risk factor for the same condition.
There
was sub-optimal care in 40 of the 70 cases and no suboptimal care in
43%
He
accepted that suboptimal care increases the risk in general of
hypoxic ischemia but there are many cases where there is no
suboptimal
care and they tend
to be in the acute profound range
because there is no time to respond
.
cc)
He
confirmed the contents of his article and stated that in this
case they did miss the signs but if it had been recorded it would not

have helped the child but at least they would have had an idea about
what was happening
He based his findings on the fact that the
injury could have occurred in the last 30 to 46 minutes at the most
based on Pasternak’s
article between 20 – 30 minutes.
dd)
He conceded that he had no clue when it started and what the extent
of it was. He however stated that we have
probabilities
in
terms of how long it takes before delivery and accordingly it takes
between 10 – 46 mins. He disagreed with Professor Smith
that
there would have been
forewarning
stating the
Prof Smith
did not quote literature
to
support
that but his
experience
from
other cases that he was involved in
.
The literature does not support that there was a forewarning with
an acute profound episode.
Okumara, Murray and Pasternak’s
articles there were no warning.
ee)
It was put to him that Professor van Toorn stated that in this
instance with the compression of the umbilical cord there
would have
been forewarning of decelerations. He stated that he disagreed for
the reasons that the acute profound is not preceded
by a warning.
That if there had been a forewarning, then the baby would have
suffered progressive hypoxia and been able to
compensate.
Once
the baby is compensating it is no longer basal ganglia thalamus
injury,
it becomes a watershed injury which is the partial
prolonged type
. He conceded that in Okumura’s second case
there are decelerations but they do not constitute warnings on which
one should
act. He does not accept the evidence of Professor Van
Toorn that in this case you would have had warning the probably cause
being
intermittent complete compressed umbilical cord because
that
would have led to a partial prolonged.
xxii)
It was put to him
that what was stated in Yamada and in his own
article that the failure to monitor the plaintiff
properly was the
cause for the bad
outcome that we have in this case and that by
not monitoring properly
they created this risk of a bad outcome.
He
denied this saying
that the risk caused by poor foetal monitoring
could not have contributed to or have caused this outcome in this
case because of
the acute nature.
That
concluded his testimony
.
f)
Sister Qavane
thereafter testified
i)
She holds a general diploma in general nursing that she received and
Mthatha general hospital.
ii)
She cannot independently recall the events but her handwriting
appears on the 2
nd
October 2013 at 18H00 in the latent
phase of labour
iii)
Foetal heart rate 136 beats per minute.
The
foetal heart rate was between 120 and 160 and there were no
abnormalities found.
iv)
She took over from the night staff at 6:45am and delivered the baby.
The plaintiff was fully dilated baby was on
continuous oxygen in
incubator after birth.
v)
She was questioned with regard to the whereabouts of sister Zitho
whom she stated had resigned
from All Saints and she has no idea were
she is.
vi)
Under cross examination she stated:
a)
She obtained a diploma in
midwifery in 1989 and an advanced midwifery
diploma in 2010.
b)
According to her she resumed
duties at 6:45 but the night shift is
from 7pm to 7am.
According
to her in the active stage the foetal heart rate, BP are monitored at
2 hour intervals and pelvic vaginal examinations
conducted then.
c)
She conceded that she had
failed to record in the assessment document
assessment because she had examined the plaintiff once.
d)
The numerous defects in
her filling in all the relevant forms were
put to her and conceded by her.
e)
It was put to her that there
no information in the records as to how
much oxygen was given, for how long it was given, what the condition
of the baby was clinically.
f)
She conceded this
saying that the child is normally given oxygen up
until the whole body is pink and without any extremities that are
blue and the
respiration is back to normal.
g)
According to the notes the
child was never right and then the child
was transferred to Mthatha.
h)
She denied the Plaintiff
version that she delivered at 7am and that
is when this witness resumed duties. She explained that her times for
resuming duties
is quarter to seven and they take reports. The
witness asked where the plaintiff looked at the time as she was lying
on her back.
That
concluded the defendant’s case.
Issue
for determination
a)
The issue in this case is
whether or not the sub-optimal care caused
or causally contributed to the minor child’s condition, that
is, was there a causal
connection between the failure to monitor and
the HIE of an acute profound nature, hypoxic celebral palsy,
developmental delay
and serious brain defects suffered by the minor
child.
b)
In considering this issue
an evaluation of the evidence is necessary
as well as the relevant authorities, the legal aspects and arguments
presented in order
to determine whether or not the Plaintiff has
discharged the onus resting upon her to establish the causal
connection between the
sub-optimal care and the ensuing insult and
injury.
c)
Evidence led
i)
The Plaintiff’s evidence cannot be relied upon unfortunately
as
being an accurate account of what had transpired having regard inter
alia to the following:
ii)
Her testimony that she was admitted to hospital on the first
is not
in keeping with her particulars or what was recorded by the sister
who admitted her and testified.
iii)
The manner in which she alleged that she went to the toilet crawling

appears to be an exaggeration as this is alleged to have occurred on
the night of the first.
iv)
The accuracy of the time that she says she delivered the baby is
also
questionable since she seems to have difficulty with the recollection
as to which date she went to hospital but recalls the
time of
delivery in circumstances where she would in all probability have
been in pain from the contractions, have been busy pushing
and having
to deal with the fact that your baby has to be resuscitated and an
incision is made to facilitate the delivery of the
baby.
v)
She further did not state that she actually looked at her cellphone

to ascertain the time but merely that she had it with her.
vi)
How it was that a cleaner was able to see the baby’s head as

she passed by.
vii)
Her assessment with regard to when she delivered is questionable and
Sister Qavane’s testimony with regard to confirming the time
she noted is more probable. Sister Qavane did not have any reason
to
record the incorrect time and she would not have known that the time
would be relevant.
d)
The Plaintiff’s Experts
and Defendant’s expert were all
clearly leading experts in their fields of expertise and gave
evidence in an extremely professional
manner discharging their duties
to the court in accordance with what is expected of them.
e)
This matter turns on probabilities
and credibility does not play a
role since all the experts were equally credible.
f)
In
National Employers General Insurance v Jagers Co Ltd
[1]
.Eksteen
AJP held as follows on page 3:
“
On
the question of a court’s approach where it is faced with two
mutually destructive versions, reference can also be made
to the
judgment of Eksteen AJP (as he then was) in National Employers
General Insurance Co Ltd v Jagers
1984 (4) SA 437
(ECD) 440 to 441,
where the following is stated:
‘
it
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff’s
allegations against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court
will accept his version as
being probably true. If, however, the probabilities are evenly
balanced in the sense that they do not
favour the plaintiff’s
case any more than they do the defendant’s, the plaintiff can
only succeed if the Court nevertheless
believes him and is satisfied
that his evidence is true and that the defendant’s version is
false. This view seems
to me to be in general accordance with
the views expressed by Coetzee J in Koster Ko-operatiewe
Landboumaatskappy Bpk v Suid-Afrikaanse
spoorwee en Hawens (supra)
and African Eagle Assurance Co Ltd v Cainer (supra). I would merely
stress, however, that when in such
circumstances one talks about a
plaintiff having discharged the onus which rested upon him on a
balance of probabilities that he
was telling the truth and that his
version was therefore acceptable. It does not seem to me to be
desirable for a Court first to
consider the question of credibility
of the witnesses as the trial Judge did in the present case, and
then, having concluded that
enquiry, to consider the probabilities of
the case, as though the two aspects constitute separate fields of
enquiry. In fact, as
I have pointed out, it is only where a
consideration of the probabilities fails to indicate where the truth
probably lies, that
recourse is had to an estimate of relative
credibility apart from the probabilities.”
g)
The fact that they differed from each other did not mean that they
were per se demonstrating
bias for or against the party that had
called them to testify but merely that their assessment of the facts
was different.
h)
Accordingly:
i)
Both the plaintiffs witnesses and the defendants witnesses
were
equally credible;
ii)
The issue is the correctness of their findings; and
iii)
Which of their versions is more probable.
g)
Doctor Murray had
inter alia
:
(i)
Stated that on the probabilities there usually are warnings
according
to Dr Murry. But she did not say when there would be warning. She
conceded that it was an acute profound but stated that
in many
instances where the labours were mismanaged it resulted in an acute
profound injury. Again no examples were given.
(ii)
She believes on the probabilities that the foetus would have shown
signs
that it was beginning not to tolerate labour.
(iii)
She accepted that there could be an acute profound event happening
without warning
but wanted to know what that unknown event
would be that caused a sudden loss of oxygen supply.
(iv)
According to her it was probably preventable
depending
on when
the injury occurred and because she does not think or believe there
is evidence of a sentinel event, none of the typical
obstetric
sentinel events.
(v)
According to her there is nothing in the records to explain the event
but what is clear is that there was an unmonitored labour and labour
is hypoxic stress and this is a labour related injury.
(vi)
It was put to her that an acute profound incident is not caused by
poor intrapartum
care. Her response was that the warning signs were
not detected because of poor intrapartum care. There was no attempt
to try and
deliver the baby e
ven if that acute profound happened
without any warning
the monitoring was so poor that it went
unnoticed.
(vii)
According to her depending on when the injury occurred it was
probably preventable.
h)
Professor Smith
(i)
The low apgar score of 5 suggested that t
here must have been
detectable foetal heart rate
abnormalities before birth but that
these were not detected because of substandard intrapartum foetal
monitoring.
(ii)
According to him there is warning in cases of acute profound hypoxic
injury and there are detectable foetal heart rate pattern
abnormalities.
(iii)
Professor Andrinico, the radiologist described the injury as being
associated
with acute profound hypoxic ischemic event. According to
him you do not need a sentinel event to have this pattern.
(iv)
Yamada quoted sub-optimal intrapartum obstetric management as the
most likely
probable cause
in cases where there is no sentinel
event
.
(v)
According to him substandard care led to the outcome as no steps were
taken.
(vi)
He conceded that
it was in the absence of known sentinel
events then stated that if
it is an unknown cause it is not a
sentinel event.
(vii)
In court he disagreed that Okumura considered them sentinel events
rather that they
acute profound events in the 5 (five) cases where
the causes were unknown and where the event occurred without a
warning such as
the one in this case. He however conceded that in his
report he had when referring to these articles referred to them as
sentinel
events and is now referring to them as acute profound.
(viii)
He was then referred to Murry’s 3
rd
group where two
had acute bradycardias the causes were not known and they were
considered sentinel and there was no warning because
the heart rate
changed 22 minutes before delivery which he accepted.
(ix)
He disagreed that this was a catastrophic event saying that it was
more likely
that there was forewarning that was not detected because
it was not monitored properly and that culminated in a final event
that
was catastrophic. He did not state the basis for this finding.
(x)
According to him you could not conclude from the MRI that it was an
acute
catastrophic event based on the probabilities, but he was not
prepared to concede that similarly you
could not conclude
that
it was not an acute profound event and said that he left that to the
court.
(xi)
He however stated that you can have a so called acute profound MRI
image in
the absence of a perinatal sentinel event.
(xii)
He conceded that you can also have it in the
presence of a
perinatal sentinel event.
(xiii)
He however stated that there is more for the probabilities that there
was forewarning
without illustrating why he said so or what renders
this version more probable when it was put to him that they were no
probabilities
either way.
(xiv)
He also disagreed with Professor Buchmann that even with optimum
foetal monitoring in labour
with a detection of a catastrophic event
in the last 30 minutes before delivery of the baby one would probably
not have been sufficiently
rapid to prevent hypoxic ischemic brain
injury.
(xv)
According to him in 30 minutes you could expedite delivery since she
was fully dilated
at 6’o clock and you would have a relatively
good outcome.
He
however conceded that after a catastrophic event brain injury can
occur from 10 minutes upwards
.
(xvi)
According to him a vacuum delivery could be performed within 15
minutes.
It
was put to him that that would be after the doctor was called, came
and made an assessment of the situation got the equipment
and
performs the procedure. He stated that he would defer to Dr Murray on
that aspect.
(xvii)
He stated that the time period depends on a balance between foetal
reserves, the uterine contraction,
the duration, the severity and one
never knows what the severity is.
This
illustrates to me that either version is equally probable in this
regard according to Professor Buchman’s statement that
there
may have been insufficient time and that there probably was a
catastrophic event in the last 30 minutes. According to Professor

Buchmann injury occurs within 15-25 minutes after profound asphyxia.
(xviii)
He accepted the studies that showed that where there was no warning
there was brain injury within 10 –
15 minutes and he agreed
with these findings.
(xix)
He also accepted that with an acute profound after 40-50 minutes the
baby would be dead according
to the same studies.
(xx)
He accepted that children with longer insults tendered to have damage
both to the grey
matter and to sub-cortical white matter.
(xxi)
He accepted that in this case there
was no damage
to the
subcortical
white matter
.
(xxii)
He persisted that there is forewarning and a change in the foetal
heart rate pattern.
(xxiii)
He however accepted that Rennies article dealt with acute profound
injury and not partial prolonged damage.
(xxiv)
He conceded that in some cases there are forewarnings and in other
cases there are not, thereby confirming
that either version is
probable.
(xxv)
He accepted that there could be cord compression and because of the
intermittent pressure it would
not leave a footprint.
i)
Professor Van Toorn.
(i)
According to him there was no sentinel event, here Rennies
article
states that probably we have a severe cord compression of an
intermittent nature which is most likely what happened here
because
of the absence of a sentinel event. You have an acute total without a
sentinel event which
could
be due to intermittent complete
cord obstruction.
(ii)
According to him the presentation is the same because there is no
blood
going to the brain in the situation of an acute profound and
partial prolonged.
(iii)
It is accordingly most likely that it is intermittent cord
compression obstruction.
(iv)
Prolonged cannot be seen on the MRI that is why the MRI refers to
acute profound
as there is no shunting during this period and the
brain cannot compensate and the centre core is damaged.
(v)
He agreed that acute profound is any unexpected serious event that is
defined as a sentinel event.
(vi)
He agreed that a cord prolapse was a sentinel event.
(vii)
He accepted that a compressed cord was defined as a sentinel event in
an article.
(viii)
The defendant’s case was put to him that it was an acute
profound injury with probably
not enough time to intervene. According
to him it was a cord compression and not a classic sentinel event
because the mechanism
differs to the foetal heart rate changes during
the period of insult and does not equate to damage. In the period
where you have
insult and not damage if you intervene then you
may
not have a child who is damaged.
j)
Professor Buchman conceded:
(i)
That the foetal heart rate was not monitored according to the
norms.
(ii)
That optimal foetal heart rate monitoring would have detected a
catastrophic
hypoxic ischemic event after 06h00.
(iii)
He stated however that such a finding having been made it would have
been
difficult if not impossible to deliver by vacuum extraction
which takes at least 20 minutes or caesarean section which takes 30
–
60 minutes to rescue from the acute profound hypoxic ischemic
episode.
(iv)
According to him the imaging findings of acute profound hypoxic
ischemic brain
injury suggest a short period of severe injury close
to delivery, probably in the last 30 minutes, even with optimal
foetal monitoring
the detection of the catastrophic event in the last
30 minutes of delivery would probably not have been sufficient time
to prevent
a HI brain injury.
(v)
The suboptimal monitoring cannot be considered causal or contributory
because the acute profound event was
sudden, severe and without
warning and it lasted a short time to cause damage
and
intervention would have taken longer than the duration of the injury.
The event would have lasted 15 – 25 minutes and
most likely
happened in the last 30 minutes.
(vi)
According to him the event has the
signature of an acute profound
nature as seen in the MRI
, is still timed to the end of labour
and is of short duration and has
no warning
and is severe and
sudden so it would even be hard to say that suboptimal care in
leaving the Plaintiff alone for a period when
she was told to push
would have made a difference.
(vii)
According to him the most likely explanation would be a cord that
gets into a small
space and where there is pushing it is suddenly
compressed and
remains
compressed until the baby is delivered.
(viii)
He disagreed that it was intermittent
complete
because that
would
have
given
a
partial prolonged
picture
where the brain would be able to
shunt blood
and you
would
get damage
to white matter or water shed injury.
(ix)
According to him the MRI
shows the signature
of an
acute
profound
,
basal ganglia thalamus
also known as grey matter
and there are
no other causes
known to him but conceded that
he was going into radiological territory.
(x)
According to him the literature
does not support
a
finding
that there was
forewarning
with an
acute profound episode
and therefore he
disagrees with Professor
Smith who did not
quote literature but has experience from other cases to support his
findings that there were forewarning.
(xi)
He disagreed with Professor Van Toorn that there would have been
forewarning because acute profound is not preceded by warning
and that if there was forewarning then the baby would have suffered
progressive hypoxia and been able to compensate and then it
would
result in a watershed injury which is the partial prolonged type.
(xii)
He stated that unlike in Yamada and his own article sub-standard
monitoring
did not create the risk of a bad outcome because of the
acute nature of the insult
.
(xiii)
Professor Buchman conceded that the monitoring would have been able
to detect
when
the change in the foetal heart rate occurred
but stated that the
probabilities
that it occurred at least 10
minutes before birth are strong considering the fact that it was
only
the grey matter
that was damaged.
(xiv)
Accordingly no preventable action could be taken at that stage that
would have changed the prognosis
of the child.
(xv)
He therefore disagrees that any insult arising from intrapartum
hypoxia can therefore be seen to have been probably preventable on

the contrary he
says that it would probably not have been
preventable.
k)
Dr Murray indicated that the monitoring was not adequate enough to
detect the change and it cannot be said at what
point the foetal
condition changed from normal to abnormal because the monitoring was
not adequate enough to make any inference
about the foetal condition
and ample time should have existed both to fully evaluate the foetal
condition and optimise it should
the condition have seemed to be any
neurological insult from intrapartum hypoxia could therefore  be
seen to be probably preventable
l)
Dr Murray in fact conceded that you cannot always prevent the acute
profound injury if it occurs as a
sudden catastrophic event but
according to her where the unexplained event happens and it is picked
up an attempt can be made for
a vacuum delivery, forceps, caesarean
section and 5/10 min can make a difference. According to her it was
probably preventable
depending
on when the injury occurred and
because she does not think there is evidence of a typical obstetric
sentinel event.
m)
Prof Buchmann disagreed and stated that the MRI findings are in
keeping with the fact that it was a sentinel event
most likely
cord compression
and because there was no shunting which would
have given a picture of a partial prolonged where the white matter
was also damaged
that this indeed was
an acute profound
meaning it was of a
sudden onset
and
insufficient time
available for a
vacuum delivery
and he
ruled out forceps
delivery
because of lack of
expertise
by the nurses and of
caesarean delivery
because the baby’s head was already
engaged in the pelvis. Professor Buchman accordingly was of the view
that it
was probable
that the
injury was not preventable
.
He was insistent that his views would not change even if one
disregarded the record that the foetal heart rate was reassuring
at
6am and demonstrated no decelerations. His evaluation of the
situations was in keeping with the available authorities despite
them
being fairly old. There are no recent medical authorities available
to gainsay these findings which fit into the picture of
this case.
n)
It was argued that the cases that the Plaintiff’s experts had
dealt with in the SA context indicate something
different and is in
keeping with their views.
o)
Professor Van Toorn had stated in this regard:
i)
There
are
cases
where
you have
an acute total
without a
sentinel event
which could be due to
intermittent complete cord obstruction.
ii)
According to him you can have deep grey matter damage
without
a sentinel event.
iii)
According to him the M.R.I suggests that there was a severe injury

where there was no blood going to the brain, but it could have been
of an intermittent nature.
iv)
The presentation is the same because there is no blood going to the

brain in the situation of an acute profound and partial prolonged.
v)
According to him the
cord compression
is
not sudden
and
sustained
it
occurs
suddenly
but it
occurs
intermittently, frequently
.
vi)
There are forewarning and intervention can be offered.
vii)
Both cause acute profound to the brain but the mechanism to the brain

the injury is different, it is not a single isolated event, it occurs
over a time span.
viii)
It is most likely that there was intermittent severe cord compression
obstruction
ix)
According to him the Prolonged cannot be seen on the MRI and that
is
why the MRI refers to acute total as there is no shunting during this
period and the brain cannot compensate and the centre
core is
damaged.
x)
The radiologist was not called to confirm that this is possible
that
indeed the MRI would not be able to pick up whether or not it was a
prolonged and that is why he described it as acute total.
xi)
There were further no published authorities that he relied upon for

his findings.
p)
Professor Buchman quite eloquently satisfied this court that he was
sufficiently qualified to give expert opinion
on areas that partially
infringed upon the expertise of the paediatric neurosurgeon. As
defendant’s counsel in his heads
stated that Stedman’s
medical dictionary defines
obstetrics
as “
the
speciality of medicine concerned with the care of womenduring
pregnancy, parturition and the puerperium.
Puerperium
is defined as the period from the termination of labour to complete
involution of the uterus usually defined as 42 days.”
q)
Professor Buchmann’s version is supported by:
(i)
The MRI depiction and in the radiologists report and description
of
the injury. No radiological expert testimony was presented to confirm
that it is equally probable for an intermittent complete
cord
obstruction to present the same pictures as an acute profound, which
cannot be picked up by a MRI, the available evidence
on face value
that the injury was acute profound and in keeping with the definition
was by its very nature sudden and at a stage
where intervention was
not possible to change the outcome.
(ii)
Professor Buchman is also supported by inter alia Rennie and
Pasternak
where inter alia the following was said:
Jannet
Rennie/Lewis Rosenbloom
in “Review how long have we got to
get the baby out? A review of the effects of acute and profound
Intrapartum Hypoxia and Ischemia
:
“
Acute
profound or acute near-total brain injury”, at page 170.
Evidence
of the way that the mature human baby reacts to hypoxia combined with
ischaemia has now accrued from relatively large numbers
of MRIs from
babies in the neonatal period and beyond.
There
are two basic patterns of damage seen as a result of the intrapartum
hypoxic ischaemia at term. The first pattern is usually
termed acute
profound damage at page 171 “brain damage was seen after 10
minutes. The areas of the brain that were that were
damaged after
this catastrophic asphyxia injury included the basal ganglia and
thalamus together with the inferior colliculi.”
At
173 “children with longer insults tended to have damage both to
the deep grey matter and to the subcortical white matter.
At
174 while there variability both in the foetal reserve and the
duration and degree of the insult, we are not of the opinion that
the
concept that damage begins to accrue after 10 minutes of an acute
profound hypoxic ischaemic insult. The second pattern involves
damage
to the white matter in the borderzones between the vascular
territories of the major cerebral arteries and is termed prolonged

partial damage; we have not considered it further. Other patterns are
rarely seen and are beyond the scope of our review”.
(iii)
Joseph F Pasternak – The Syndrome of Acute Near –
Total Intrauterine Asphyxia in the Term Infant
.
“
Eleven
terms infants sustained an acute, near total intrauterine asphyxia at
the end of labour.
Imaging
studies documented a consistent pattern of injury in subcortical
brain nuclei, including thalamus, basal ganglia, and brainstem,
in
contrast the cortex and white matter were completely or relatively
spared. This pattern of injury correlated with the acute
and
long-term neurological syndromes in these patients.
The
distribution of injury in these patients reflects the hierarchy of
metabolic needs that are unmet after a severe, sudden disruption
of
substrate supply as occurs in an acute, severe asphyxia.
This
clinical and imaging syndrown is in contrast with that seen in more
prolonged but less severe intrauterine asphyxia, in which
shunting of
blood flow from non-brain organs to the brain and from celebral
hemisphere to the thalmus and brainstem renders non-brain
organs the
cerebral hemispheres most vulnerable.
In
a patients, electronic foetal monitoring was performed as a routine
method of assessing foetal well-being during labour and was
felt to
be reassuring until the onset of the persistent terminal bradycardia.
---
in 7 patients the foetal heart rate monitoring was completely
unremarkable before bradycardia onset
At
395 In 9 of our 11 the patients foetal monitoring was thought to be
reassuring until the onset of the terminal bradycardia,
supporting
the
premise
that the
hypoxic Ischemic
Insult
occurred at the
end of labour
and was
acute
and
severe.
At
396 “in our
experience,
however,
MRI
lesions
in the
basal ganglia
and
thalamus
with
relative or complete
sparing
of the
remainder of the cerebral
hemispheres
have
only
occurred in
infants whose
foetal heart rate pattern
or
clinical
circumstances suggested
an
acute
and severe insult
At
397 “we believe that the magnitude and tempo of the hypoxic –
ischemic insult determine whether the
predominant brain damage
occurs in cerebral hemisphere or subcortical nuclei
. Acute near –
total asphyxia reduces
oxygenation abruptly to all brain regions
,
in this situation thalamus, basal ganglia, and brainstem nuclei are
preferentially damaged because of their high baseline metabolic
rate
and high content of glutamate receptors
“
subacute partial
asphyxia causes shunting of blood flow to the heart and brain…
In
contrast, acute near – total asphyxia produces a simultaneously
and abrupt deprivation of oxygen and blood flow to all
organs.
Near
– total insults are usually relatively brief because if
prolonged the probable outcome is foetal demise and unsuccessful

neonatal resuscitation …
Thus,
in acute near total asphyxia, a severe neonatal hypoxic –
ischemic encephalopathy can occur with no minimal evidence
of insult
to nonbrain organs.”
(iv)
It is evident from the aforegoing that in keeping with the findings
and the
authorities that this is an acute profound injury and
according to Pasternak arises from an
acute profound insult
.
(v)
Pasternak’s findings are in keeping with Professor Buchman’s

opinion that the acute insult gives rise to damage to the grey matter
and that partial prolonged would have given rise to watershed
injury
involving the white matter stating it very simply.
(vi)
The literature supports the defendant’s expert’s version
in addition
to the MRI.
(vii)
The Plaintiff’s experts research on the subject, until
published and authoritatively
establishing that the findings in
Pasternak et al was not a true reflection of the situation can best
be said to be as probable
as the defendant’s version but the
defendant’s version appears to be more probable as it is
fortified by the description
given in the MRI and the authorities.
(viii)
I am accordingly disposed to accepting that this was indeed the type
of insult and injury
as described by Professor Buchman and was indeed
caused a sentinel event of unknown origin most likely cord
compression.
(ix)
I accept that in this case the nurses on night duty did an appalling
job with
monitoring the foetus properly and it was not only
substandard but indeed negligent and must be condemned in the
strongest possible
terms as it is indeed outrageous that the
standards set out in the maternity guidelines were disregarded to
such a great extent
and such poor care was rendered.
Findings
a.
The defendant failed to adduce the evidence of the nurse who made the
recordings reflected from 3:30am and
in particular that made at 6am
that showed no decelerations.
b.
The Plaintiff’s representative had made it clear at the outset
that they were not accepting that the
content of the partogram or
other records were correct and accordingly if the defendant intended
relying upon it they would need
to call the relevant expert.
c.
The fact that the other nurse said that she did not know where this
nurse was, as was correctly argued by plaintiff’s
counsel, not
enough to support an argument that she could not be found despite
diligent search and exhausting all means to obtain
her to give
testimony
d.
There was further no obligation on the plaintiff to call this witness
or find her.
e.
I accordingly cannot accept her recordings especially since it was
specifically placed in issue and questioned
by the plaintiffs expert
as to whether or not the N noted no decelerations after monitoring
the foetal heart rate before during
and after the contractions.
f.
The Defendant accordingly cannot rely on this as confirmation that at
6am the foetal heart rate was normal
and accordingly there was no
cause for concern at that time and the N depicted no decelerations.
g.
Professor Buchmann however stated that although that is what he
relied on, the exclusion of that would not
change his opinion since
it was still an acute profound event that would have occurred in
the last half an hour prior to delivery
according to the articles
relied upon and therefore
even with no monitoring the outcome
would have been the same.
h.
The substandard care and failure to adequately monitor was not a
causative factor in this case according to
him.
i.
His opinion as to how the insult and resultant injury occurred and
that it was an acute profound
is as already indicated in keeping with
the medical authorities cited and I find it the more probable
explanation as these are
the only available medical authorities at
this time that have been peer reviewed and despite the criticism
levelled that it was
not of a big enough sample and old it is
authoritative until contrary findings and outcomes are made in peer
reviewed published
articles.
j.
The Plaintiff’s experts opinions in other litigated matters
accordingly cannot be accepted
as being authoritative without knowing
the full history of each case and having that data checked by experts
in the relevant fields
and peer reviewed.
k.
I as already indicated accept that Professor Buchmann had the
necessary expertise necessary to express an expert
opinion even on
those areas that appeared to infringe upon the Paediatric
neurologists areas of expertise when he said there is
an overlap.
l.
The available authoritative literature on the issue do not draw a
distinction between the insult
in the manner that Professor van Toorn
did and his findings are not tested to determine their accuracy by
his peers nor published.
This does not make it untrue but it cannot
be said to be as probable as the tested and published literatures.
Plaintiff’s
experts version in the best case scenario would be
as probable as that of the defendant though the authorities make the
defendants
version more at probable thus ruling out a causal
connection between the substandard care and the ensuing injury.
m.
A great deal was made about whether or not cord compression qualifies
as a sentinel event with the plaintiff’s experts
stating that
it was not one of the known events however is clear that cord
compression or other events also fall under the definition
of
sentinel event in addition to the most common and usual forms that
are easily and readily identifiable and Professor Smith had
made
reference to a sentinel event in his report and they accordingly
eventually conceded that it could be a sentinel event.
n.
Professor Buchman’s version that this was a sudden occurrence
and there was no time to have acted to
prevent the incident is more
probable than the plaintiff’s expert that  there must have
been forewarning and that prompt
action could have resulted in the
baby being delivered earlier reducing or eliminating the HIE. He
indicated concurringly why their
opinion in this regard was not
acceptable in this particular case and scenario where the foetal head
was already engaged in the
pelvic head.
o.
The Plaintiff experts theory is at present unsubstantiated in any
medical authority.
p.
The plaintiff has accordingly failed to demonstrate a causal
connection between the substandard care and the
injury that ensued on
a balance of probabilities.
q.
The plight of this child is clearly pitiable and heart wrenching
however there has to be some casual connection
between the omission
and the condition of the child to find the defendant liable to
compensate the plaintiff Advocate De Bruyn
SC aptly quoted the case
of Medi-Clinic v Vermeulen
2015 (1) SA 241
SCA 252 [33] where the
following was said.
“
33.
In conclusion, the plaintiff has suffered such terrible consequences
that there is a natural feeling that he should be compensated.
But,
as Denning LJ correctly remarked in Roe v Ministry of Health and
Others; Woaley v Same
[1954] EWCA Civ 7
;
[1954] 2 ALL ER 131
(CA) at 139
“
But
we should be doing a disservice to the community at large if we were
to impose liability on hospitals and doctors for everything
that
happens to go wrong.
…
We
must insist on due care for the patient at every point, but we must
not condemn as negligent that which is only a misadventure”.
r.
I unfortunately despite my sympathies lying with this child and my
strong condemnation for the failure
to adequately monitor cannot find
that there is a causal connection between the negligent conduct and
the resultant insult and
injury.
s.
Sub standard and negligent care in this case did not in the
circumstances cause or causally contribute to the
minor child’s
condition but an acute profound event, in all probability, caused the
resultant incident which by its very
nature was sudden and not
preventable as there was insufficient time to deliver by any other
means due to time constraints. Professor
Buchman’s evidence in
this regard is preferred to that of Dr Murray in light of the
practical difficulties he eluded to in
the scenarios she considered.
t.
In
Lee v Minister of Correctional Services
[2]
the test was what the authorities ought to have done to prevent
potential TB infection and ask whether the conduct had a better

chance of preventing infection than the condition that actually
existed during Mr Lee’s incarceration.
In
Lee’s case something could have been done as a preventative
measures in this case unfortunately the probabilities are that

nothing could have been done to prevent the HIE due to the acute
profound nature of the insult and resultant injury. Lee’s
case
accordingly is distinguishable from the present one as in this case
the Defendant’s expert was clear that better monitoring
would
not have prevented the catastrophic acute profound event.
The
facts of the cases referred to by the Plaintiff’s
representative differ from the peculiar facts of this case as well as

the defences raised and articles referred to. Each case has to judged
on its own merits and demerits and the inherent probabilities
and
improbabilities contained therein.
u.
I am able to conclude that indeed on a balance of probabilities the
nurses in the employ of the defendant were
negligent, however I am
unable to conclude in light of the facts and evidence led in this
case that on a balance of probabilities
that that negligence caused
the injury to the minor child.
v.
The inference or scenarios that the plaintiff’s experts
advocate is not the most readily apparent and
acceptable inference
from a number of possible inferences, as the inference advanced by
the defendant’s expert is as probable
if not more probable.
Conclusion
w.
The Plaintiff has failed to discharge the onus resting upon her to
prove her case against the Defendant on a balance
of probabilities.
x.
I am however not disposed to make a costs order against the plaintiff
in light of the negligent substandard
care that was clearly present
despite it not causing or casually contributing to the insult and
injury.
Order
9.1
in the circumstances I make the following order:
a)
The Plaintiff’s claim is dismissed
b)
No order at to costs
DAWOOD
J
JUDGE
OF THE HIGH COURT
DATE
HEARD:

20 NOVEMBER 2018
JUDGMENT
DELIVERED:

29 MARCH 2018
FOR
THE PLAINTIFF:

WESSELS SC
PLAINTIFF’S
ATTORNEYS:

NONXUBA INC.
345 RIVNIA BOULEVARD
GROUND FLOOR
BLOCK B, EDENBURG
RIVONIA, 2191, JHB
FOR
THE DEFENDANT:

MR DU BRUIN SC,
WITH
MR RILI
DEFENDANT’S
ATTORNEYS:
STATE
ATTORNEY
BROADCAST HOUSE
94 SISSON STREET
FORTGALE
MTHATHA
[1]
1984 (4) SA 432
ECD 440 to 441
See
also Kruger v Coetzee
1966 (2) SA 428
(A) De Maayer; Serobro v RAF
2005 (5) SA 588
SCA, 597 7 D – F [19]
[2]
2013 (2) SA 144
CC