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[2017] ZAGPPHC 152
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B and Another v MEC for Health and Social Development of Gauteng Provincial Government (16233/13) [2017] ZAGPPHC 152 (17 March 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 16233/13
17/3/2017
Reportable:
Yes
Of
interest to other judges: No
Revised.
In
the matter between:
L
B 1
st
PLAINTIFF
JACOB
JAKOBUS
JONKER 2
nd
PLAINTIFF
and
MEC
FOR HEALTH AND SOCIAL DEVELOPMENT OF
GAUTENG
PROVINCIAL
GOVERNMENT
DEFENDANT
Coram: HUGHES J
JUDGMENT
HUGHES
J
Introduction
[1]
J J (J), a minor boy, was born on 8 February 2010. His mother, L B
(Ms B), sues for damages in her personal and representative
capacity,
as the first plaintiff. Jacob Jacobus Jonker (Mr Jonker), the second
plaintiff and father of J, also sues in his personal
capacity for
damages against the defendant, being the MEC for Health and Social
Development, Gauteng Provincial Government (MEC).
[2]
The claim for damages of the two plaintiff's arise from, the alleged
negligence of the members of the medical staff of the defendant,
in
the hospitalisation and labour procedure during the birth of J, at
the Tshwane District Hospital (the hospital) on 8 February
2010.
[3]
The defendant acknowledged that at the relevant time members of the
medical staff of the hospital were in its employ, were acting
in the
course and scope of their employment, were under a legal duty to
render medical treatment and exercise the degree of skill
and care,
which could reasonably be expected of medical staff in the prevailing
circumstances.
[4]
On 7 February 2010 Ms B, who was 39 weeks pregnant and experiencing
lower abdominal pains attended at the hospital at 04h00.
A vaginal
examination of Ms B was conducted by the nursing staff on duty and it
was established that she was not in labour but
was in fact
experiencing 'false labour'. The foetal heart of unborn J was
observed to be reactive and Ms B was discharged and sent
home.
[5]
On the following day, Ms B returned to the hospital as the abdominal
pains had become worse and she had developed vaginal bleeding.
She
alleges that she returned at around 17h00 and/or 18h00 and was
examined by the same nursing sister who attended to her on 7
February
2010.
[6]
J was born at 23h05 through normal vaginal delivery. It was recorded
that he was born 'flat' and in a compromised condition
without
spontaneous breathing and Apgar scores of 4/10 at 1 minute, 5/10 at 5
minutes and 5/10 at 10 minutes. J experienced seizures
shortly after
birth and was transferred on 9 February 2010 to Steve Biko Academic
Hospital neonatal ICU, where he was diagnosed
with neonatal hypoxia
and respiratory distress.
[7]
His condition was recorded as being that of grade 3 hypoxic
ischemic encephalopathy (HIE) with seizures, he required intubation
and mechanical ventilation until 15 February 2010 he was discharged
into the plaintiffs care on 15 March 2010 and upon discharge
it was
recorded that he had suffered birth asphyxia and HIE.
[8]
The defendant disputes liability for the damages suffered by the
plaintiffs'. I have been tasked to deal with the issue of liability
and the issue of quantum is to be held over. Consequently, a
separation of liability and quantum was duly granted in terms of rule
33 (4) of the Uniform Rules of Court.
The
Pleadings
[9]
The plaintiffs pleaded that their claims arose from the wrongful and
negligent breach of the contractual and legal duty of care
owed to
them, by one or more or all of the medical staff who were responsible
for or engaged in the first plaintiff and J's treatment
at the
hospital. The plaintiffs' allege that the medical staff were
negligent in one or more of the following respects:
'8.1 They failed to
properly assess the first plaintiffs condition on
7
February
2010, they failed to admit the first plaintiff when admission was
indicated;
8.2 they failed to
properly monitor the condition of the first plaintiff and J, and to
administer appropriate medical treatment;
8.3 they failed to
properly and correctly plot the first plaintiffs progress of labour
on a partogram;
8.4 they failed to
deliver and/or to arrange that J be delivered by means of caesarean
section when it was indicted that there was
foetal distress,
as
they should have done;
8.5 they failed to
institute CTG monitoring of the foetal heart rate of J
immediately after the first plaintiffs admission to the Tshwane
District Hospital;
8.6 they failed to act
immediately and appropriately to the observed clinical signs of
foetal distress reflected on the CTG tracing
that was obtained;
8.7 they failed to
continuously monitor the maternal condition and the foetal condition
after oxytocin was administered to
the first plaintiff
as
is indicated under the circumstances;
8.8 they failed to
resuscitate J immediately and appropriately after birth and/or failed
to seek assistance from the appropriate
expert in the resuscitation
of J.'
[10]
In the plea the defendant denied the allegations of negligence set
out above and in the alternative averred that if it was
found to be
negligent such negligent conduct was not causally linked and/or
related to the condition of J. The defendant went on
further to
stated that the denial of the negligence is amplified by the fact
that in the intrapartum period the medical staff exercised
the
required degree of skill and care to look after the first plaintiff
and manage the birth of J.
The
Evidence
Admission
on 7 February 2010
[11]
It is common cause that Ms B was admitted at the hospital on 7
February 2010 and it is uncontested that it was in the early
hours of
the morning. The hospital records indicate that on that day the first
plaintiff was attended to by Sister Mafolo. Ms B
was examined and a
cardiotocograph monitor (CTG) was used to monitor the foetal heart
rate. The results indicated that the foetal
heart rate was normal,
reactive and that the foetus was non-hypoxic. The incident
experienced by Ms B was categorised as 'false
labour' as her cervix
was still closed. The medical experts, employed to assist in this
case, concluded that the management on
that specific day was
appropriate and the first plaintiff was correctly discharged.
Admission
on 8 February 2010
[12]
Mrs and Mr Grobler, the first plaintiffs mother and stepfather,
testified on behalf of the plaintiffs'. Both stated that on
8
February 2010 Mrs Grobler together with the second plaintiff
transported Ms B to the hospital at 18h30. Mrs Grobler testified
that
she knew the time as the television series 7
de Laan,
which
they watch daily during the week, had just commenced. Mr Grobler
testified that on that day he watch the series on his own
as Mrs
Grobler had left for the hospital.
[13]
Mrs Grobler described her daily routine when her husband return from
work at about 16h45. She stated that they would chat of
the day's
events and that they usually ate together at 18h00. On this
particular day she served Mr Grobler dinner on his own, left
her
dinner in the microwave, and proceeded to take Ms B to the hospital
as she complained of severe stomach cramps.
[14]
Mrs Grobler further testified that it took them 20 to 25 minutes from
their home to the hospital and that it was dusk on their
arrival. In
a quest to corroborate Mrs Grobler's testimony that it was dusk on
their arrival at the hospital, the plaintiffs' handed
into court an
official document titled, 'Times of Sunrise, Sunset and Local
Apparent Noon on every day of the Year, at any place
in South
Africa', published with the approval of the Minister of Justice as
signified by Government Notice No. 1739, and dated
ath November 1957.
This document reflects that as at 8 February 2010 the calculated time
of sunset would be 6:53pm, differently
18h53.
[15]
Against the back drop of the Grobler's evidence the particulars of
claim of the plaintiffs' state that the arrival time at
the hospital
on 8 February 2010 was
'between 17h00 and 18h00'.
In addition,
Dr M M Lippert, a Paediatrician/ Paediatric Neurologist, who
documented a medical legal report dated 28 June 2012,
states that it
was reported to him by Mrs Grobler and Ms B that they had arrived at
the hospital between 17h00 and 18h00. It was
also documented in the
medical report of Professor H S Cronje, a Specialist Obstetrician and
Gynaecologist, dated 7 November 2012,
that Ms B and Mrs Grobler,
stated to their attorney that their arrival time at the hospital was
17h00 and 18h00, respectively.
Dr E J Langenegger, a Specialist
Gynaecologist and Obstetrician states, in his medical legal report,
that from the patient history
provided by the attorney, Ms B reported
that she arrived at the hospital shortly after 19h00. However, the
nurse's notes, as documented
by Sister Mafolo, reflect that the
admission of the first plaintiff was at 21h30.
[16]
Mrs Grobler gives a detailed account of what she witnessed and what
transpired in the hospital during the labour procedure
of Ms B. It is
to my mind imperative that I consider this evidence in determining
the time of admission on 8 February 2010. Iwill
return to the
admission time later in the judgment.
Mrs
Grobler's evidence
[17]
Mrs Grobler's testimony was that they arrived at the hospital at
18h55 as they had left the house at 18h30. It took them 25
minutes to
drive from her home to the hospital.
[18]
On their arrival at the hospital, they reached the nurses station in
the Labour Ward at about 19h00. They informed the nurse
on duty,
whose name they do not know, that Ms B was experiencing lower
abdominal pains and presented her with Ms B's antenatal
card. They
were certain that this nurse was not Sister Mafolo, as Sister Mafolo
had attended on Ms B the previous day when she
presented with a
'false labour'.
[19]
Ms B was taken to a bed in the waiting room, the curtain was drawn
and an examination was conducted. Thereafter the nurse took
them to a
delivery room where the first plaintiff was made to undress, put on
the hospital gown and lie on the bed. Mrs Grobler
testified that the
nurse then left them in that delivery room for about two hours.
[20]
After she had returned from smoking outside at 21h15, a nurse entered
the delivery room at about 21h20 or 21h25. She examined
the first
plaintiff and advised that she was Bern dilated. Mrs Grobler states
that when the first plaintiff was fully dilated,
the nurse ruptured
Ms B's membranes artificially at 21h30. This nurse, Mrs Grobler
states was, Sister Mafolo.
[21]
At 21h40, Sister Mafolo inserted an intravenous line IV drip and
explained that this
'would help the pains to come on'.
At this
stage there was another nurse assisting the sister. Her testimony is
that for a short time the CTG monitor was placed on
the first
plaintiff's belly.
[22]
During the course of the labour process, she stated that her daughter
was lying on her back on the bed. Ms B was fully dilated
and she was
instructed to push, as she did so one of the nurses stood behind her
and pressed on her stomach each time she pushed.
The episiotomy was
cut by the first nurse who attended on them and at 23h05 J was born
face down, showing no signs of life. Mrs
Grobler states further that
one of the nurses even lifted the leg of the baby and dropped it
saying
'this is a lifeless baby'.
[23]
She further testified, that after the birth of the baby, no
assistance was rendered to the baby, which resulted in an exchange
of
words taking place between her and the nurses. She contends that the
doctor must have heard this, as he rushed and took the
baby into
another room, with the nurse following on his heels. After a few
minutes she left the delivery room and found them in
a nearby room.
The doctor advised that he had stabilised the baby, had requested an
ambulance and were awaiting same to transfer
the baby to Steve Biko
ICU. This attending doctor was none other than Doctor Ngali.
[24]
Ms B remained in the delivery room until about 02h30. She was then
cleaned up, stitched and transferred to the Postnatal Ward.
It is
common cause that J was discharged from Steve Biko hospital on 15
March 2010.
Dr
Langenegger's evidence
[25]
Amongst, Dr Langenegger's numerous qualifications and expertise, one
of these being training mid-wives, interns, students,
registrars and
fellows in Essential Skills in Managing Obstetric Emergencies (ESMO).
In addition, he is also one of the developers
of this national skills
training program.
[26]
As stated above he provided a medical report on the process of the
birth of J. He had before him the medical records of the
hospital,
medical history of Ms B obtained from her attorney, the pleadings,
reports from other experts and joint minutes of other
experts.
[27]
The doctor testified that from the hospital progress report of the
first plaintiff it was recorded that she was POG1 which
is indicative
of her first pregnancy and approximately 40 weeks pregnant. She had
attended on the hospital, on 7 February 2010,
complaining of
abdominal pains however there were no contractions. A vaginal
examination concluded that her cervix was still closed,
the CTG
reading of the foetus indicated that it was reactive and the baseline
foetal heart rate was normal. He explained that
'the advantage of
the CTG
..
.it can show us that the baby is in a good
non-hypoxic condition'.
In the first plaintiff's case the heart
rate was 130 to 140 beats a minute which is normal with acceleration
and no decelerations.
He concluded that on 7 February 2010 Ms B
experienced 'false labour' as the baby was not in distress, there was
a normal CTG reading
and there was no rapture of membranes. She was
thus correctly discharged and sent home.
[28]
Dr Langenegger testified that from his experience of the practice in
such state hospital, the procedure and standard of care
is designed
that there is continuous monitoring of mother and foetus in the
labour ward. If any abnormality occurs, the protocol
is that the
nurse on duty must call the doctor, as there is usually a doctor on
call for the obstetric area.
[29]
He further testified that Sister Mafolo who took charge of the
patient at 21h05 should have conducted a CTG on admission of
Ms B and
not 35 minutes thereafter as indicated by her nursing notes. The
advantage in doing so, he states, was to establish
if
the
foetus is stable or not, if it is stable the sister has more time,
but if the CTG indicates problems then the emergency procedures
will
kick in. Thus, it is imperative that on arrival of the patient, the
process would be abdominal examination, CTG and then vaginal
examination, which process was incidentally not followed by Sister
Mafolo.
[30]
From the nurse's notes the circumstances prevalent were that the
foetal heart beat was 122 beats per minute and that there
were
decelerations. He noted that the decelerations recorded were
concerning and the
'action must be to initiate resuscitation and
call the doctor to decide whether there was foetal distress or not'.
This procedure was not followed by Sister Mafolo.
[31]
The doctor testified that with the indicators mentioned above there
was 'a
good chance that the baby having hypoxia, decrease oxygen
delivery or decrease in the blood flow to the tissues, showing signs
that
the foetus was in distress'.
The procedure to be followed
this case was for the sister to turn the mother on her left side,
give her oxygen, put up a Ringers
Lactate drip, do a vaginal
examination and call the doctor as an emergency. This procedure was
not followed by Sister Mafolo.
[32]
The doctor expressed concern, why the sister had raptured the
membranes (according to the nurse's notes), whilst the patient
was
only 8 centimetres dilated with decelerations without calling the
doctor first, as the patient was not fully dilated. He stated
that by
the nurse rapturing the membranes when there were already problems
that being the deceleration, made the problem even worse.
[33]
However, when Sister Mafolo testified, she denied rapturing the
membranes. She explained that the notes were not clear that
membranes
had in fact raptured on their own. This howeyer was not put to the
doctor during cross examination, in order that he
be granted an
opportunity to respond.
[34]
He was asked to comment on Mrs Grobler's testimony that she was
informed by the nurse that the drip put up for Ms B was to
make the
labour go faster, he replied:
'...So for instance if
the contractions are not adequate then if
a
drug called
oxytocin is added inside the drip then that can stimulate the
contractions, but I did not
see
anything from the notes that
oxytocin was administered into the drip...So sorry I know that
a
drip was put up but I do not know what the reason was...
So
I
think the drip was probably inserted to, maybe the mother looked
dehydrated, to hydrate her'
[35]
From the notes the doctor testified that he could not reason if the
Ringers Lactate drip had oxytocin or not. He explained
that a drip
was usually put in circumstances,
'for instance if there is foetal
distress ...if the patient is dehydrated ...if the patient has poor
bearing down efforts.'
In this instance, he said, it is not
documented by Sister Mafolo for what purpose she put up the drip. In
the case of a lactate
drip, the doctor explained, that this will
increase the maternal cardiac output, as it expands the blood volume,
and it also assists
to rehydrate the patient as it contains
electrolytes.
[36]
He continued explaining that the drug oxytocin would only be added to
the drip if the contractions were not strong enough as
it stimulates
contractions.
[37]
By mere deducting, the doctor established that Ms B would have been 4
to 6cm dilated at 19h00, if she was, as record by Sister
Mafolo, 8cm
dilated at 21h30. He stated that from the MRI reading conducted on
the baby after birth demonstrated partial prolonged
as well as
profound perinatal hypoxia. Thus, the process of hypoxemia had
probably commenced between 19h00 and 21h00. He added
that the foetus,
as it was a healthy foetus, would have been able to compensate and
cope with the hypoxia during that period and
had an earlier CTG been
conducted it would have been picked up that the foetus was in
distress. lntrapartum resuscitation could
have commenced and
delivery expedited avoiding the acute profound hypoxic
injury which was the major cause of
the brain damage suffered by J.
[38]
Dr Langenegger was adamant that the CTG should not have been stopped
by Sister Mafolo at 22h10, as she did, having observed
the
abnormalities that she did. He stated that at 21h50 from the CTG,
which was in the suspicious-category 2
I
non reassuring, a
doctor should have been called to assess the CTG. Between 22h00 and
22h10 the CTG showed late decelerations, slow
to return to the
baseline and decreased baseline variability which is an indication of
an abnormal or pathological pattern. The
doctor contends further,
that by then there was a 60% chance that there was foetal distress,
associated with decrease oxygen delivery
to the baby and the brain.
He noted that there was no recording of the foetal heart rate between
22h00 and 22h20. The patient is
now full dilated, type 3 CTG was thus
not documented, and there was no attempt to intrauterine foetal
resuscitation, that is turning
the mother on her side, administering
oxygen, calling the doctor and relaxing the uterus.
[39]
He was also critical of the sister's failure to record on the
partogram, regular and relevant, the foetus and mother's vital
signs.
The partogram, he explained, is designed for the attending
midwife/nurse to regularly monitor and record these vital signs
in
order to pick up any abnormalities and deal with emergencies.
[40]
As a result of the substandard foetal monitoring, the doctor
testified that an opportunity was missed, in his view at 22h20,
for a
ventouse vacuum extraction to be conducted. This is so, he contends,
because the patient was fully dilated and the head was
1/5 above
pelvis, this was an opportune time to expedite the delivery by
calling a doctor.
[41]
If the attending doctor was of the view that it was not safe to
perform the ventouse, there was still an opportunity to administer
a
tocolytic agent to reduce the contractions to
'buy time'
to
prepare for a caesarean section.
[42]
The doctor testified that an assisted delivery in the prevailing
circumstances by way of ventouse could have been done within
15 to 20
minutes, as the patient met the safe criteria for a ventouse to be
conducted, meaning the baby would have been born around
22h30 to
22h40, thus decreasing the exposure to hypoxia and hypoxic ischemic
injuries.
[43]
As regards the caesarean section delivery the reasonable expected
time to arrange, suppress the contractions and provide intrauterine
resuscitation to improve the condition of the foetus, would have
taken 45 minutes, meaning the birth would take place at 22h45.
[44]
He further testified that it would not have mattered whether Ms B
came in at 21h00 or earlier as the substandard maternal and
foetal
monitoring created the catalyst of problems that followed which
resulted in the damage coursed to the foetus.
[45]
Dr Langenegger also qualified himself as being able to express an
opinion on conditions of neonates, as he had read in that
field and
was qualified to do so, as a registered foetal specialist.
[46]
Dr Langenegger contended that the manner in which the foetus was
resuscitated after delivery was incorrectly conducted. The
doctor
explained that the process is to firstly clear the airways by sucking
away the mucous or fluid from the lungs, then establish
breathing if
necessary by assisted ventilation using the ambubag, observe
circulation and heart function which will be reflected
in the oxygen
saturation of the blood. This he said was what was termed as the A,
B, and C of resuscitation. He emphasised that
the suctioning of the
fluid from the lungs must be done before bagging with the ambubag
which is connected to the oxygen.
[47]
In this instance, the nurse's notes reflect that the baby was bagged
with an ambubag, the suction was clear then nasal prongs
were placed.
The doctor testified that it should have been the suction first and
then the ambubag. Be that as it may, in this instance,
he states, the
ambubag was removed far too soon and replaced with the nasal prongs
in a case where the baby was already experiencing
difficulty
maintaining regular and spontaneous breathing. By replacing the
ambubag with the nasal prongs would have resulted in
the baby getting
into further distress as this would result in oxygen saturation
falling, which was counter-productive.
[48]
The baby at that time had a saturation score of 90% indicating oxygen
saturation in the blood was decreased. The normal percentage
for
oxygen saturation is between 97 to 98 %. The Apgar scores explained
the doctor was an indication of the heart rate, respiration,
muscle
tone and reflexes of the baby after birth. Thus, when one examines
the baby after birth against all the indicators of the
Apgar score in
a vaginal birth the best score is a 9 or 10, whilst in a caesarean
section birth it would be 6 or 7.
[49]
In this instance, 1 minute after resuscitation the Apgar scores of J
was 4/10 at 5 minutes, 5/10 at 10 minutes and it remained
at 5/10. If
the Apgar score is under 7 then this is an indicator of hypoxia. In
this instance 10 minutes after resuscitation the
baby remained at
5/10 indicative of inadequate respiratory effort. When asked if a
baby with scores such as J could then be termed
a
'lifeless baby'
he responded by saying:
'Yes I am saying it looks like
a
floppy doll so it can
have it being lifeless, that is
a
word that you can use.'
[50]
The relevance of the aforesaid, the doctor explained, was that at 10
minute the baby still had inadequate respiratory efforts,
struggling
to breath, and thus was a candidate to be incubated. The nasal prongs
should not have replaced the ambubag.
Professor
E Buchmann's evidence
[51]
Professor Buchmann is an Associate Professor at the University of
Witwatersrand, in the Obstetrics and Gynaecology department.
The
professor based his medical legal report on the clinical notes from
the hospital, and the reports of Dr W Edridge and Professor
H Cronje.
[52]
He also concurred that the 'false labour' assessment of Ms B on 7
February 2010 was reasonable and most probable in the circumstances.
On an examination of the nurse's notes he confirmed that the
conclusion reached by Sister Mafolo of 'false labour' on this day
was
in keeping with the absence of labour contractions and a closed
cervix found with Ms B.
[53]
In cross-examination he testified that the factors that were present
in this case necessitated calling a doctor. His testimony
was as set
out below:
'They certainly should
have called
a
doctor, no matter what their level of experience
as
a
midwife was a
...
about...after that first late
deceleration at 22h05 and depending on their expertise they
may
well have needed to call
a
doctor at 21h47
when
there was another early deceleration of variable. No doubt if
a
doctor had been called, there may have been opportunities to
intervene.'
[54]
His testimony is confirmed in his report where he states under
'Quality of care in labour and delivery' :
'In view of LB being
a
low -risk, it was reasonable for the nursing staff to attend her,
and not call
a
doctor. All findings, including the early
decelerations, were reassuring until 22:02, from this time there
appear to have been late
decelerations. These
decelerations
suggest that significant fetal (foetal) hypoxemia may have started at
this point, but further CTG recordings after
22: 10 were either not
done or are not available. There are no notes of fetal
(foetal)
heart rates between 22:10 and 23:05. Therefore the possibility of
severe feta
(foetal)
hypoxaemia occurring between 22:10 and
23:05 is difficult to exclude, even in the.absence of obvious
sentinel event.'
[55]
The Professor contends that by 22h07 and no later than that, one
would have to call a doctor, by any standard of expertise
of the
midwife and experience because of the second deceleration.
[56]
The Professors testimony is that a ventouse delivery or a caesarean
section delivery would have resulted in early delivery
and a decrease
exposure duration to hypoxia. In essence he concurs with Dr
Langenegger.
[57]
From the Professor's evidence in chief, he states that at the time
Sister Mafolo got Ms B to
lie
on her side and a vaginal
examination was conducted at 23h20, that examination should have been
conducted by a doctor. A doctor
would have requested that the patient
be placed on her side with a drip to be then inserted. If the foetal
distress did not improved
then he would have decided to do either a
caesarean section delivery or a vacuum or ventouse delivery. The
vacuum may have been
possible.
[58]
The Professor had this to say in his report with regards to when the
insult could have occurred:
'Late decelerations
has stopped became noticeable at 22:10, but then the tracing was
stopped or subsequently tracing records are
lost. If intrapartum
fetal
(foetal)
hypoxemia (lack of oxygen) is considered to be
the cause of LB's baby's neurological condition, then the hypoxemic
insult would
had occur in
55
minutes between 22:10 and 23:05
the latter being when delivery occurred...All findings including the
early decelerations, were reassuring
until 22:02, from this this time
there appear to have been late decelerations
.
These
decelerations suggest that a significant fetal
(foetal)
hypoxemia
may have started at this point, but further CTG recordings after
22:10 were earlier not done or are not available.'
[59]
The Professor concluded that from the record the nursing staff did
not monitor the baby after 22:10, even though there were
late
decelerations of the heart rate at that time. It was also concluded
from the note that the nursing staff did not call a doctor
to attend
to the patient when there appeared to be evidence of foetal hypoxemia
at 22:10. The nursing stuff missed this opportunity
to intervene to
prevent the foetal damage that inevitably ensured.
[60]
In conclusion, in the Professor's report he states that the CTG
tracing was normal from 21:40 to 22:02. That there was a possible
episode of severe foetal hypoxemia in labour after 22:10.
Dr
S K Ngali's evidence
[61]
This doctor was called from the casualty ward to assist with Ms B's
baby, J. He testified that:
'I came in being
called to come and assess the baby, then transfer the baby.'
The
startling fact is that he did not record any clinical notes of what
he did when he resuscitated baby J, except for a note to
transfer the
child to Steve Biko Hospital.
Sister
Mafolo's evidence
[62]
Sister Mafolo has advance midwifery and has been employed as a
professional nurse at the hospital since 2007. She confirmed
having
attended to Ms B on both 7 and 8 February 2010. On the first date it
was a case of 'false labour' whilst on the second date,
the patient
was in labour and the baby was delivered. Sister Mafolo contends that
she only attended on the first plaintiff at around
21h00 on 8
February 2010.
[63]
She testified that she did not have an independent recollection of
this specific birth as it was a while ago. She did concede
that her
documented nursing notes may have been written in the early hour of
the following day after the events had taken place.
This would then
be 9 February 2010 as the birth took place on 8 February 2010.
[64]
She stated that she delivered the baby of the first plaintiff with
the assistance of another nurse. She was adamant that she
was not the
one that ruptured the membranes of Ms B and that the membranes
ruptured on their own.
[65]
She confirmed that she did not conduct the CTG on admission as is
required and did so at 21h40 some forty minutes after she
admitted Ms
B. When she was conducting the CTG, she noted the decelerations as
being suspicious in the first ten minutes, which
changed to normal in
the next ten minutes and then the decelerations reverted to abnormal
again at 22h00. At 22h10 she testified
that she removed the band and
stopped the CTG. She examined the first plaintiff, found her to be
fully dilated and failed to resume
with the CTG monitoring.
[66]
She stated that she did not call the attending doctor throughout the
birth of the baby of Ms B. She also concede that she did
not monitor
and write down the foetal and maternal heart rate, maternal pulse or
the strength or frequency of the contractions.
She further concede
that she did not conduct the resuscitation process correctly.
[67]
She concurred that the management of the patient and foetus was of
substandard quality and unacceptable, that she failed to
adhere to
the standard practise and procedure, in that, she failed to call a
doctor in order to assist in assessing the condition
of the foetus.
She acknowledged that she did not engage intrauterine foetal
resuscitation when required, failed to monitor the
mother and foetus
and
'messed up'
the resuscitation of the baby. She was adament
that during this entire procedure she had not administered oxytocin
in the drip put
up for Ms B.
The
Joint minutes of Dr Lippert,
a
Paediatrician/ Paediatric
Neurologist, and Prof Cooper,
a
Paediatrician
[68]
This minute concluded that the brain MRI scan showed pictures
consistent with the consequence of acute profound birth asphyxia.
They concluded that the pathway from asphyxia insult to severe
cerebral palsy is well evident in J.
The
Joint minute of Dr A B Weinstein and Dr MNJ Van Rensburg
[69]
The conclusion reached by these radiologist with regards to the MRI
examination of the brain of J indicated the following:
' The MRI changes are
in keeping with Hypoxic-lschemic damage to the brain of a
Full
Term infant sustained in the perinatal period. The distribution
pattern suggests
this to have
been
of a mixed nature,
primarily of an acute profound type, but elements of the partial
prolonged damage
are
also demonstrated.'
The
Joint minute of Dr Langenegger and Professor Buchmann
[70]
The import of these minutes is set out below:
· The Antenatal
period was probably uncomplicated.
· The management
during the first admission on 7/0212010 was appropriate. The patient
was probably in false labour. The CTG
around 05:00 on 7/0212010 was
reactive and indicated a non-hypoxic foetus.
· It was recorded
that labour started at 15h30. The counselling advice by the nurse on
7/0212010 would have been:
Patients are instructed to return to go
to hospital when experiencing progressive contractions.
· The patient's
membranes raptured at 21h30 and the amniotic fluid was clear. At
21h40 the decelerations were recorded. It
was standard practise for
the midwife to call the doctor but this was not done and is thus
substandard care.
· The CTG was only
for the period 21h40 to 22h10 and nothing thereafter, thus it was
discontinued.
· The overall
picture is one of substandard maternal and foetal monitoring.
· Of importance is
the fact that the 30 minute CTG recorded 4-5 contractions per 10
minutes and was thus suspicious and borders
on pathological, after
22h00 to 22h10.
· In these
circumstances the standard practise was to turn the patient on her
side and call the doctor, which was not done.
· At 22h30, this
time was agreed by the experts as the time was incorrectly recorded,
on the partogram there was full dilation
and the head above pelvis
was 115th.
· Both experts
agree that with the decelerations,
this was
a
missed
opportunity for the nurse to call the doctor to
assess
the
patient and consider whether a ventouse delivery could
be
attempted. A ventouse delivery would have resulted in earlier
delivery and decrease exposure duration to hypoxia. There
was
also a missed opportunity for the doctor to order
a
caesarean
section for
foetal distress,
..
.if it was possible to
perform
a
ventouse assisted delivery then the delivery would
have been 35 minutes earlier according to Dr Langenegger and 15
minutes according
to Prof Buchmann.
· Both experts
agree that if the patient arrived at 19h00 and the patient was only
attended to at 21h30 then it amounts to
substandard maternal and
foetal monitoring, with missed opportunities to diagnose probable
foetal distress. The substandard care
probably contributed to the
poor outcome.
· Dr Langenegger
persist that if the patient was admitted at 21h30 it was still as
case of foetal monitoring and obstetric
care was substandard and
better care may have resulted in earlier intervention and a fully or
partially prevented HIE.
· Professor
Buchmann's opinion was that if the patient arrived at 21h30 her delay
in seeking attention during labour deprived
the nurses and doctors of
detecting foetal distress early and therefore may have contributed
substantially to the infant's poor
outcome.
Analysis
and Evaluation
[71]
The case of the plaintiffs' is that the medical staff at the hospital
which Ms B attended on 7 and 8 February 2010, acting
in the course
and scope of their employment with the defendant, were under a legal
duty to render proper and appropriate medical
treatment to her and J.
In doing so they were to exercise the degree of skill and care
reasonably required and expected of medical
staff in the prevailing
conditions.
[72]
The defendant contends that even though it could be accepted that the
conduct of Sister Mafolo was wrongful in this case and,
that the
plaintiff's suffered damages due to the substandard foetal and
maternal monitoring and care, the plaintiffs' had failed
to show that
such substandard care was in fact negligent and the cause of the
damages they suffered.
Negligence
[73]
The duty to prove the negligent conduct mentioned above lies with the
plaintiffs', as is stated by the general rule, he who
alleges must
prove. In addressing negligence it is most insightful to quote the
Supreme Court of Appeal judgment of
Mcintosh v Premier,
KwaZulu-Nata/
&
Another
2008 (6) SA 1
(SCA) at para
[12] where Scott JA observed:
'The second inquiry is
whether there was fault, in this case negligence. As is apparent from
the much-quoted dictum of Holmes JA
in
Kruger v Coetzee
1966
(2) SA 428
(A) at 430E-F, the issue of negligence itself involves a
twofold inquiry. The first is: was the harm reasonably foreseeable?
The
second is: would the
diligens paterfamilias
take
reasonable steps to guard against such occurrence and did the
defendant fail to take those steps? The answer to the second
inquiry
is frequently expressed in terms of a duty. The foreseeability
requirement is more often than not assumed and the inquiry
is said to
be simply whether the defendant had a duty to take one or other step,
such as drive in a particular way or perform some
or other positive
act, and, if so, whether the failure on the part of the defendant to
do so amounted to a breach of that duty.
But the word "duty•,
and sometimes even the expression "legal duty", in this
context, must not be confused
with the concept of "legal duty•
in the context of wrongfulness which, as has been indicated, is
distinct from the issue
of negligence. Imention this because this
confusion was not only apparent in the arguments presented to us in
this case but is
frequently encountered in reported cases. The use of
the expression "duty of care" is similarly a source of
confusion.
In English law "duty of care• is used to denote
both what in South African law would be the second leg of the inquiry
into negligence and legal duty in the context of wrongfulness. As
Brand JA observed in
Trustees, Two Oceans Aquarium Trust
at
144F, "duty of care" in English law "straddles both
elements of wrongfulness and negligence".'
[74]
This is a matter that ought to be decided on the evidence and the
probabilities and with that in mind I am mindful of what
was stated
in
Van Wyk v Lewis
1924 AD 438
at 444, this being, the failure
of a trained person to follow the general level of reasonable skill
and diligence possessed and
exercised like other trained persons in
their field to which they belong would ordinarily constitute
negligence. As stated by Brand
JA in
Buthelezi v Ndaba
2013
(5) SA 437
(SCA) at para [15] the test remains always whether the
trained or skilled person exercised reasonable skill and care or
whether
or not his/her conduct fell below the standard of a
reasonable competent trained or skilled person in his/her specific
field.
[75]
Before moving on to address the two enquiries to establish if the
plaintiffs have proven that there was in fact negligence,
I need to
address the approach to be adopted by a presiding officer when
dealing with evidence of an expert.
Expert
evidence witness
[76]
The nature of expert's evidence and how it should be assessed was
affirmed in
Coopers (South Africa) (Pty) Ltd v Deutsche
Gesellschaft Far Schadlingsbekampfung MBH
1976 (3) SA 352
(A.D)
at 371G-372A:
"(See Klue and
Another v Provincial Administration. Cape.
1966 (2) S.A. 561
(E) at
p.563).
· As I
see
it, an expert's opinion represent
his reasoned conclusion based on certain facts and data which are
either common cause, or established
by his own evidence or that of
other competent witness. Except possibly where it is not
controverted, an expert's bald statement
of his opinion is not of any
real assistance. Proper evaluation of the opinion can only be
undertaken if the process of reasoning
which
led to the
conclusion, including the premises from which the reasoning proceeds,
are disclosed by the
expert. Even bearing in mind that the
addressee of the summary is properly also an expert, I am of the
opinion that the addressee
may not be able to evaluate the opinion,
so as
to
enable him to advise the party consulting thereon, if
he is not informed in the summary of "the reasons" for the
opinion.
Having regard to the above meaning of the word
•reasons" in the context of the sub-rule
as
a whole
and the purpose thereof, I am of the opinion that the summary must at
least state the sum and
substance of the facts and data which
lead to the reasoned conclusion (i.e., the opinion). Where the
process of reasoning is not
simply
a
matter of ordinary logic,
but involves, for example, the application of scientific principles,
it will ordinarily also be necessary
to set out the reasoning process
in summarized form. The addressee should then be in
a
position
to
evaluate the opinion, and be in
a
position to advise
the party consulting him whether the opinion can be controverted and,
if
so,
what
evidence is required to do so.”
[77]
Coopers
at 371A-C, further states that the facts or data for
the opinion reached by the expert witness must appear in the reasons
for his
or her opinion or conclusions. These facts or data would
include, but are not limited to, experiments, investigations and
information
obtained from text books and scientific knowledge.
[78]
In this case, there are various reports from experts in different
medical fields, in addition experts in the same fields of
expertise
have come together and compiled joint minutes for that specific
discipline. By agreement the expert's reports and the
joint minutes
form part of the evidence. The only two experts that were called to
testify as their opinions differed in some respects
were Dr
Langenegger and Professor Buchmann. In essence these two experts
testimony confirmed that contained in their expert reports
and the
joint minute.
[79]
By virtue of the expert's special knowledge and skills, the experts
are clearly in a better position to draw inferences from
the facts of
the trial. This is especially so in circumstances where the court is
not capable of forming an opinion unassisted
by the experts report,
opinion and testimony. In these circumstances the experts were
helpful to the court.
Negligence
Enquiry
[80]
In this instance, applying the test set out above, the first enquiry
is whether the harm to the first plaintiff and her son
was reasonably
foreseeable and, secondly whether there was a duty upon the sister to
take reasonable steps in the circumstances.
The approach adopted in
conducting the enquiry was stated by Holmes JA in
Sardi v Standard
and General Insurance
Co
Ltd
1977 (3) SA 776
(A) at
780C-H, that it is inappropriate to resort to piecemeal processes of
reasoning and to split up the enquiry regarding proof
of negligence
into two stages. He emphasized that there is only one enquiry, namely
whether the plaintiff, having regard to all
of the evidence in the
case, has discharged the onus of proving, on a balance of
probabilities, the negligence averred against
the defendant.
[81]
On an examination of the evidence before me, in establishing whether
Ms B's admission was at 19h00 as per Mrs Grobler or at
21h30 as per
Sister Mafolo, I look to the factors which pertain to the active
labour. These indicate that the standard of care
and monitoring of
the mom and foetus were substandard. A point well emphasised by both
Dr Langenegger and Professor Buchmann in
their joint minute.
[82]
I must add that Professor Buchmann's view was that:
'...if the admission
was found to be later the first plaintiff was to blame for the
defendant's staff not having time to observe
her prior to her being 8
cm dilated'.
[83]
The damage to the foetus is documented as having occurred at Full
term, as clearly highlighted by the joint minute of the radiologist
Dr Van Rensburg and Dr Weinstein. In addition, the indicators are
that it was primarily an acute profound insult, but there were
elements of partial prolonged damage. The obstetrics expert's state
that MRI indicates that the acute insult would have occurred
within
an hour before delivery took place at 23h05, whilst the partial
prolonged insult would have commenced during active labour.
Which on
the nurse's notes was reflected from 21h40.
[84]
Having sketched the above picture, with a 40 week gestational
admission, having attended on the previous day with 'false labour',
in my view, when the first plaintiff was admitted for the second time
on 8 February 2010, warning bells should have been ringing
for those
attending on the first plaintiff.
[85]
What is telling is that, when Sister Mafolo examined the patient at
21h30, the patient was then 8 cm dilated and her membranes
had
raptured, but still Sister Mafolo did not follow protocol, to at
least do the CTG on admission which we are well aware was
done only
at 21h40. In addition, when the CTG was done decelerations are noted.
Protocol dictates that the nurse/midwife calls
for the attending
doctor as there is now an indicator of foetal distress. Sister Mafolo
did not do so.
[86]
Sister Mafolo was supposed to turn the patient on her side to assist
the foetus in distress and call the doctor as there was
decelerations
noted. This was not done. The CTG recording was conducted from 21h40
to 22h10 and then stopped and thereafter no
foetal or maternal
monitoring was conducted until delivery. Yet again the conduct of
Sister Mafolo was not in tune with acceptable
procedures and
protocol.
[87]
By 22h10 the decelerations were now pathological the nurse should
have called the doctor on duty to assess the patient in order
to
attempt other means of delivery either by ventouse or caesarean. The
Sister failed to do so and this was yet another missed
window
opportunity.
[88]
Both experts concluded that the signs of foetal distress were there
since Sister Mafolo took control of the patient, however
she still
failed to follow protocol. In my view with all these facts before me,
the foetal distress from all the indicators was
foreseeable and could
have been avoided had Sister Mafolo followed protocol.
[89]
The worst blunder, was the resuscitation of J after birth. This
procedure was conducted incorrectly and in my view made matters
worse
or worsen the condition of the baby. Instead of suction first, to
extract the fluids in the lungs of the baby, then bag with
ambubag to
assist the lungs to breath, the Sister bagged with the ambubag whilst
there was still fluid in the lungs and suctioned
thereafter. On
suctioning, clear fluid was drained from the lungs a clear indicator
that there was fluid in the lungs. To add injury
to insult the Sister
placed nasal prongs when she should have continued with the ambubag
as the oxygen saturation of the baby was
only 94%, as opposed to the
required 97 to 99%.
[90]
There is a concession that the maternal and foetal monitoring and
care was substandard. We also have an admission by Sister
Mafolo that
the resuscitation was a
'mess up'.
These factors together with
the evidence and the probabilities lead to the only conclusion that
can be reached, that had proper
protocol and procedures been
followed, the result presented could have been avoided.
[91]
There was no reason whatsoever for Sister Mafolo and the medical
staff involved in the labour procedure to not follow protocol.
Obviously, Sister Mafolo and the medical staff on duty, their conduct
and duty to the patient amounts to a serious deviation from
the
general level of skill and diligence they ought to have and exercise,
as members of the nursing profession.
[92]
It was established and concurred by the defendant's expert that the
procedures adopted were conducted in a substandard manner.
This means
that the sister and staff's conduct was below the standard of a
reasonably competent nurse responsible for the maternal
and foetal
monitoring and care. The result being that Sister Mafolo and the
medical staff of the defendant who had a duty of care
towards the
plaintiffs' failed in their duty to do so and as such the conduct
ascribed is negligence.
Was
oxytocin administered?
[93]
Firstly I must state that this drug would be administer in the drip,
in this case, the Ringers Lactate drip. The drug oxytocin
is a
Syntocinon and is administered to stimulate the contractions as was
mentioned
supra.
[94]
According to both experts, Dr Langenegger and Professor Buchmann,
their testimony was that they could not observe from the
nurse's
notes whether the drug was administered to the patient. However, Dr
Langenegger in his medical legal report stated that
the drug was
administered during advance labour. He does not substantiate why he
comes to this conclusion though. If one
then looks at his
testimony he clearly states that the drug is not documented and he
cannot say if the drug was administered or
not. He then goes on to
testify that if one looks at the fact cumulatively then the only
conclusion that one can reach is that
the drug oxytocin was indeed
administered.
[95]
I do not agree. From the nurse's notes one thing that can be
appreciated even as sketchy as they are, Sister Mafolo took time
out
to write down what drugs where administered. The medical experts did
not doubt this at all and as such I do not find any evidence
that
points in the direction that Sister Mafolo had in fact administered
the drug.
[96]
In the circumstances I find that the drug oxytocin was not
administered by Sister Mafolo as she had testified.
Was
the admission of Ms B at 19h00 or 21h30 on 8 February 2010?
[97]
Mrs Grobler testified as to when they all left her home. She also
gave the distance from her home to the hospital and the period
of
time it took them to get to the hospital. I also take into
consideration that the plaintiffs were at the hospital during the
early hours of the morning of 7 February 2010 when a false labour was
recorded.
[98]
In addition, Mr Grobler corroborated Mrs Grobler's evidence regarding
the time they had left home and both relied on the fact
that it was
just as
7de Laan
commenced.
[99]
Sister Mafolo recorded in her nurse's notes that at 21h30 Ms B was 8
cm dilated and draining clear liquid, contractions were
strong when
she received the patient from admission.
[100]
Adv. Soni SC, for the defendant, argued that the nurse's notes should
be accepted as reflecting the time of admission, as
being 21h30. He
submitted that, Mrs Grobler should be taken as a single witness due
to the fact that Mr Grobler could not remember
some of the soapie's
like
Days
that would have been screened before
7de Laan.
On
the other hand Adv. Maritz SC, for the plaintiffs', contended that
the nurse's notes were not reliable, as Sister Mafolo testified
that
the notes were not written at the same time of the occurrences but
rather sometime after the events had taken place.
[101]
In addition, there is the evidence of Mrs Grobler that they were
taken to a waiting area of the labour ward. In this area
they were
attended to by a nurse other than Sister Mafolo, whom it is common
cause attended upon them in the delivery room. Even
though
challenged, Mrs Grobler stood firm, the defendant could not dispute
that the nurse who assist Sister Mafolo was in fact
the same nurse
who had attended on Ms B when she arrived in the waiting area of the
labour ward on 8 February 2010.
[102]
Another factor worth consideration, is the fact that the nurse who
attend to Ms B before Sister Mafolo conducted a brief examination
and
advised her that she was not fully dilated. Thereafter she was left
on the bed and after sometime a CTG band was placed over
her tummy
and a drip inserted. The events tie in with Sister Mafolo's testimony
that she conducted a CTG and put up a Ringers Lactate
drip after
receiving the patient from admissions. In my view, in these
circumstances it is more probable that the events that occured
with
Sister Mafolo were a continuation from whence the first nurse left
off.
[103]
Why do I say so? It was not disputed that two nurse attend on the
first plaintiff during the labour procures, that being an
additional
nurse with Sister Mafolo. I am also mindful of all the pertinent
errors made in the nurse's notes by Sister Mafolo.
I do not propose
to tabulate all of these errors as they are far too many. I am also
mindful of the fact that Sister Mafolo recorded
the notes after the
events took place. This, in my view, is an indicator that she failed
to complete the notes as is prescribed
by procedure and protocol, as
and when the event arose and this yet again amounts to Sister Mafolo
not complying with procedure
and protocol.
[104]
The defendant's counsel argued that Mrs Grobler was a single witness,
I am of the view that Sister Mafolo is in fact the single
witness,
whose evidence should be treated with caution as she had nothing but
the nurse's notes to corroborate her version, which
notes where
questionable to say the least.
[105]
In my view, the nurse's notes don't come to Sister Mafolo's aid but
rather highlight her transgressions from the applicable
procedures
and protocols. The probabilities of the admission time on 8 February
2010, in my view, favour Mrs Grobler's evidence,
even though accounts
of the admission at the hospital are recorded as being between 18h00
and 19h00. This is clearly not in the
region of 21h30, as per the
nurse's notes. Adv. Soni, commenced by putting to the witnesses, that
the admission time was 21h00
and then he changed the admission time
to be 21h30. Frankly, it so clear to me that in fact he did not know
the admission time
of Ms B at all.
[106]
In addition to that stated above, there is still the issue of the
evidence of Ms B being a
prima gravida
and Bern dilated at
21h30. According to Dr Langenegger the plaintiff would have been 4 to
6 cm dilated at 19h00 in active labour.
This ties in with the first
nurse's examination of Ms B where she advised that she was not fully
dilated. Both obstetrical experts
confirmed that this was a
probability.
[107]
Having regard to the evidence and the probabilities I am convinced
that the admission time was 19h00 as testified by Mrs Grobler.
Conclusion
on negligence.
[108]
The only conclusion I am able to reach is that the plaintiff's' have
proven that Sister Mafolo and the medical staff of defendant
would
have/could have and must have, foreseen that her action would have
caused harm and a loss.
[109]
The conduct of Sister Mafolo is indicative that there was
non-compliance with the procedures and protocol, for the numerous
reasons set out above of the various transgressions.
[110]
Most of which is related to the failure of Sister Mafolo and medical
staff in adhering to procedures and protocol. In doing
so the medical
staff inclusive of Sister Mafoloand doctor Ngali were negligent in
the circumstance.
Causation
[111]
In Za
v Smith
2015 (4) SA 574
(SCA) at para [30] Brand JA
referred to the well-known case in determining factual causation:
"[30]...for
determining factual causation was the ell-known but-for test as
formulated, eg by Corbett CJ in
lntemational Shipping Co (Pty) Ltd
v Bentley
1990 (1) SA 680
(A)
at 700E-H. What it
essentially lays down is the enquiry - in the case of an omission -
as to whether, but for the defendant's wrongful
and negligent failure
to take reasonable steps, the plaintiff's loss would not have ensued.
In this regard this court has said
on more than one occasion that the
application of the 'but-for test is not based on mathematics, pure
science or philosophy. It
is a matter of common sense, based on the
practical way in which the minds of ordinary people work, against the
background of everyday-life
experiences. In applying this common
sense, practical test, a plaintiff therefore has to establish that it
is more likely than
not that, but for the defendant's wrongful and
negligent conduct, his or her harm would not have ensued. The
plaintiff is not required
to establish this causal link with
certainty (see eg
Minister of Safety
&
Security v Van
Duivenboden
2002 (6) SA 431
(SCA) para 25;
Minister of
Finance v Gore NO
[2006] ZASCA 98
;
2007 (1) SA 111
(SCA) para
33. See also
Lee v Minister of
Correctional Services
[2012] ZASCA 30
;
2013 (2) SA 144
(CC)
para 41.)"
[112]
Adv. Soni contended that the plaintiffs' needed to show that the
substandard care was negligent and was the cause of the damages
of
the plaintiffs'. He accepted that Sister Mafolo's conduct was
wrongful in that her conduct consists of an omission in failing
to
call the doctor. He contended that the view of Prof Buchmann was to
be accepted and even so it has not been established that
there is a
connection between the negligent omission and the harm suffered.
[113]
The view expressed by Prof Buchmann is that the defendant places
reliance upon the fact that had a doctor been called and
a decision
was taken to do either the ventouse or the caesarean, the ventouse
would have hastened delivery by 15 minutes, whilst
the caesarean
would be longer, as it would have had to be performed at Steve Biko
Hospital.
[114]
Dr Langenegger testified, if a doctor had been called and a ventouse
delivery conducted, the delivery would have been 35 minutes
earlier,
whilst if a caesarean was to be performed, both he and the
Professor agreed that the reasonable expected decision
delivery
interval would be 45-60 minutes.
[115]
What I find strange is that Adv. Soni disregards all the other
omissions by Sister Mafolo and places reliance on just one.
He
forgets, that even if the admission is taken as 21h30, the first
omission was that Sister Mafolo did not conduct the CTG on
admission
as protocol dictates. Foetal distress would have been observed by way
of the decelerations and a doctor was supposed
to have been called
then to assess the patient, delivery could have been initiated
earlier. A further omission was that she failed
to turn the mother on
her side having noted the decelerations to assist the foetus.
[116]
There is also the pathological reading from 21h30 to 22h10 of the CTG
which yet again required remedial steps to be taken,
the CTG was not
supposed to be discontinued and the doctor should have been called.
Dr Langenegger testimony was that had the delivery
been initiated
earlier, the profound hypoxic event could have been avoided. This
evidence was not challenged.
[117]
Taking into account my findings that the admission occurred at 19h00,
the patient would have been dilated at least 4 to 6
cm even though no
CTG was conducted on her admission, working backwards from her
dilation of 8 cm at 21h30. During that 2 hour
period whilst she was
on the bed, had a CTG been conducted at 19h00 on admission, and she
was monitored as per protocol, then the
delivery could have been
engaged much earlier and the hypoxic event avoided.
[118]
On an examination of the evidence and the probabilities had there
been proper maternal and foetal monitoring from admission
at 19h00,
then the delivery could have been earlier and the hypoxic event
avoided. Further, had there
been
proper maternal and foetal
monitoring from 21h30 to 22h10 yet again delivery could have been
earlier and the hypoxic event avoided.
The failure to follow protocol
and the failures I have mention in the preceding paragraphs is the
cause of the loss in these circumstances.
In addition to the
factual loss, there is also a legal loss for the medical staff had a
legal duty toward the patient, to
monitor both the mother and foetus
in a proper manner according to protocol and the procedures, and they
failed to do so.
Costs
[119]
The costs are to follow the result and are to be on the scale of
party and party. The costs are to include the employment
of two
counsel, the qualifying fees of the experts and the fees of the
experts in attendance.
[120]
Consequently, in the result the following order is made:
[a] The order attached
marked as "X" is made an order of Court.
___________________________
W.
Hughes
Judge
of the High Court Gauteng, Pretoria
Appearances:
For
the Plaintiff : N G D Maritz SC
:
M M Lingenfelder
Instructed
by : Adele Van Der Walt INC
For
the Defendant :V Soni SC
:A
Mofokeng
Instructed
by :State Attorney
Date
delivered :17 March 2017
Case
Number: 16233/13
In
the matter between:
L
B
1
st
PLAINTIFF
JACOB
JAKOBUS
JONKER
2
nd
PLAINTIFF
and
MEC
FOR HEALTH AND SOCIAL DEVELOPMENT OF
DEFENDANT
GAUTENG
PROVINCIAL GOVERNMENT
Draft
order "x"
The
following order is made:
[1]
The defendant is ordered to pay 100% Of the plaintiffs' proven or
agreed damages in their personal capacities and in their
representatives capacities as the biological parents and natural
guardians of their minor son, J JACOBUS JONKER ("J"),
who
was born on 8 February 2010, arising from the perinatal hypoxic
ischemia suffered by him on 8 February 2010 and the resultant
grade 3
hypoxic ischaemic encephalopathy and cerebral palsy.
[2]
The defendant is ordered to pay the plaintiffs' taxed or agreed costs
on the High Court scale up to date of this order, which
costs will be
on a party and party scale. These costs will include, but will not be
limited to:
2.1 The reasonable costs
consequent upon the obtaining of the medico legal reports and the
reasonable qualifying fees (if any) of:
2.1.1.
Dr M Van Ransburg, neuro- radiologist;
2.1.2.
Dr M.M. Lippert, paediatric neurologist;
2.1.3.
Professor H S Cronje, gynaecologist;
2.1.4.
Prof A Nolte, qualified nurse;
2.1.5.
Dr E Langenegger, gynaecologist.
Of whom the plaintiffs
have given notice in terms of the provisions of Rule 36(9) (a) and
(b).
[2.2]
The costs consequent upon the employment of senior and junior
counsel.
[3]
All costs incurred on party and party scale in respect of the
postponement of the hearing which was set down for 1 June 2015,
including the costs of the reservation of expert witnesses of whom
notice has been given in terms of the provisions Rule 36 (9)
(a) and
(b), and the costs consequent upon the employment of senior and
junior counsel.
BY
THE COURT
_________________
THE
REGISTRAR