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[2018] ZASCA 132
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MEC for Health, Western Cape v Q (928/2017) [2018] ZASCA 132 (28 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 928/2017
In
the matter between:
MEC
FOR HEALTH, WESTERN
CAPE
APPELLANT
and
S Q
obo I
RESPONDENT
Neutral
citation:
MEC for Health, Western
Cape v Q.
(928/2017)
[2018] ZASCA 132
(28 September 2018)
Coram:
Lewis, Ponnan, Majiedt, Dambuza and
Mathopo JJA
Heard:
16 August 2018
Delivered:
28 September 2018
Summary:
Delict – medical negligence –
onus on plaintiff to prove damage causing event – reverse
reasoning impermissible
- inference of negligence may only be drawn
where a negligent event is the most plausible inference.
Expert
evidence – expert opinion must be logical - probative value of
expert opinion evidence depends on reasons furnished
therefor.
ORDER
On
appeal from
:
Western
Cape Division of the High Court, Cape Town (Le Grange J sitting as
court of first instance):
1 The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
2 The order of the Western Cape Division of the High Court is set
aside and substituted with the following order:
‘
The
plaintiff’s claim is dismissed with costs, such costs to
include those consequent upon the employment of two counsel’.
JUDGMENT
Dambuza
JA (Lewis, Ponnan, Majiedt and Mathopo JJA concurring):
Introduction
[1]
This appeal, with the leave of this court, relates to heartrending
events which took place in 2011. On 7 December a baby girl,
Baby I.
Q. (I.), was born at Paarl Hospital in the Western Cape. At birth she
presented with clinical features of spastic quadriplegic
cerebral
palsy. This had been caused by damage to her brain.
[2]
In May 2013 the respondent, I.’s mother, instituted an action
for damages in the Western Cape Division of the High Court,
Cape Town
(the high court), against the appellant, the Member of the Executive
Council for Health in the Western Cape (the MEC).
Her claim was based
on negligent medical treatment to herself and the baby by health
services employees employed at various health
State facilities which
she attended during her pregnancy and at the time of the baby’s
birth. The claim was defended by the
MEC.
[3] On
the first day of the trial an order was granted by the high court
separating the issues of liability from the determination
of the
quantum of damages. The trial then proceeded on the issue of
liability. The high court found that the injuries suffered
by the
baby were a direct consequence of the negligent conduct of the MEC’s
employees. The court ordered the MEC to pay 100
per cent of proved or
agreed damages. It is against this order that the MEC appeals.
Background
Facts
[4]
The following events were not in issue before the high court. On 27
July 2011 the respondent visited Zwelihle Clinic in Hermanus.
There,
her suspicion that she might be pregnant was confirmed. The nursing
staff told her that she was five months into her pregnancy
and that
her anticipated date of delivery was 16 November. That initial visit
was followed by further routine antenatal clinic
visits, the first of
which was on 24 August.
[5]
On 20 September a medical examination revealed that the respondent
had contracted a urinary tract infection (UTI). An antibiotic
(Amoxicillin) was prescribed and she was told to return to the clinic
two weeks later. The infection was still persistent when
she returned
to the clinic on 4 October. Treatment was extended and she was
advised to return to the clinic a week later, on 10
October, for
‘urine check & Dr’s opinion’. On her return her
urine still had nitrites despite continued treatment.
She was told to
return to the clinic two days later.
[6]
Although leucocytes were found to be present in her urine when she
returned to the clinic on 12 October, she was not experiencing
any
difficulty or pain when discharging urine (no dysuria) and was
‘asymptomatic’. The doctor ordered that her urine
sample
be sent for microscopy, culture and sensitivity testing (MST). There
is no record of the result of this investigation in
the medical
records.
[7]
Two weeks thereafter, on 16 November, her due date, the respondent
returned to the clinic. After assessment by a doctor she
was told to
return on 23 November. By then the UTI had resolved. Between the 16
and 23 November she relocated from Hermanus to
Mbekweni Township in
Paarl. Consequently, on 23 November she attended the Phola Park
Clinic in Paarl. There she was told, without
assessment, to return to
the clinic the following Tuesday, 29 November, that being the next
antenatal clinic day. On her return
to that clinic, on 29 November,
her urine showed no abnormalities and she was referred to Paarl
Hospital for the following day,
as she was assessed to be post
mature.
[8]
On 30 November the respondent’s urine had leukocytes, but she
had no dysuria. A Non Stress Test (NST)
[1]
returned a ‘non-reactive’ result. Dr
Bilson, who attended to her, instructed that a second NST be done and
that if the
result was reactive the respondent was to return in a
week for a follow up assessment. If it was non-reactive she was to be
admitted
to the labour ward. The test was redone on the same day and
was assessed, mistakenly, as reactive. The respondent was told to
return
in a week. When she did so, on 7 December, the NST again
returned a non-reactive result with a ‘poor baseline
variability’.
[2]
She was admitted to hospital and labour was
induced with Misoprostol inducing cream (also referred to as
Cytotec). At 23h15 I. was
born.
[9]
At birth the baby presented with microcephaly.
[3]
Her head circumference of 32cm was abnormally
small compared with her above average length of 54cm and normal
weight 3,48kg. She
had sustained a cephalohaematoma
[4]
and suffered an intra cerebral bleed. Her blood pH
was 7.22. Her Apgar score
[5]
at birth measured four; at five minutes after
birth it was seven, and at ten minutes after birth it had improved to
nine. The medical
staff recorded that the baby had suffered Hypoxic
Ischaemic Encephalopathy (HIE), a brain injury that occurs when an
infant’s
brain does not receive sufficient oxygen and blood.
Damage to I.’s brain had rendered her a spastic cerebral palsy
quadriplegic.
The following day she started having seizures.
[10]
By twelve days after birth I.’s head had enlarged to 38cm. A
sonar showed hydrocephalus.
[6]
She was transferred to Tygerberg Hospital. The
results of a CTG
[7]
scan done at that hospital and the radiologist
report confirmed the HIE and revealed cortical laminar necrosis with
bilateral hygromas
(cysts). These results are discussed more fully
later in this judgment. I. was discharged from Tygerberg Paediatrics
Hospital a
day later and returned to Paarl Hospital from where she
was discharged on 21 December.
Pleadings
[11]
In the summons the respondent’s claim was based on various acts
of alleged negligence by the medical staff during her
pregnancy, at
the time of birth, and after birth. Paraphrased, the allegations were
that they failed to perform investigations
necessary for the proper
detection of danger to the child and to timeously intervene by
performing a Caesarean Section (c-section).
They also failed to
monitor the respondent’s labour contractions and the baby’s
heart rate. After delivery they failed
to place the baby under the
cooling-off system due to lack of beds at Paarl Hospital. As will be
seen below, the evidence led on
behalf of the respondent somewhat
extended the ambit of the alleged grounds of negligence.
[12]
In respect of the antenatal period, the allegations of negligence
related to three periods. Firstly, weeks 32 to 34 of the
respondent’s
pregnancy, when she was suffering from the UTI,
[8]
secondly, on 30 November, when the two NST tests
were done, and thirdly, during the week following 30 November until 7
December
when, due to non-intervention, the respondent’s
pregnancy was prolonged. In relation to 30 November, it later became
evident
that the assessment of the repeat NST done on that day as
reactive was incorrect. The test had, in fact, returned a
non-reactive
result. The respondent’s contention was that the
incorrect recordal was further negligent conduct which resulted in
her pregnancy
being prolonged, thus further increasing the risk of
harm to the baby.
[13]
Although in the summons the negligence during delivery was pleaded as
an alternative to the negligence during the antenatal
period, the
evidence was presented in such a manner that composite consideration
of all the alleged acts or omissions was contended
for. The
respondent persisted in this approach on appeal before us. The MEC
denied any negligence on the part of the employees.
Issues
[14]
The issues were the determination of the damage causing occurrence,
when such damage occurred, whether there was negligence
on the part
of the MEC’s employees and if so, the causal link, if any,
between the negligent conduct and the injury occasioned
to I..
[15]
The respondent relied on three expert witnesses: Prof Andronikou, a
radiologist who performed a cranial MRI on the baby on
17 September
2013, Dr Mtsi, an obstetrician and gynaecologist, then a consultant
at the Chris Hani Baragwanath Hospital, and Dr
Reid, a clinical
neurologist and part-time lecturer in neurology at Tygerberg and
Groote Schuur Hospitals. The MEC relied on two
witnesses: Prof van
Toorn, a paediatric neurologist at Tygerberg Hospital and a part time
lecturer at the University of Stellenbosch,
and Prof Odendaal, a
gynaecologist and obstetrician in private practice, also employed as
a part-time lecturer at Stellenbosch
University.
The
evidence – Joint minute by Dr Mtsi and Prof Odendaal
[16]
Prior to the start of the trial Dr Mtsi and Prof Odendaal concluded a
joint minute. They agreed that the respondent should
not have been
sent home after 30 November when the NST results were non-reactive.
Instead a c-section should have been done on
that day. The different
reasons held by each for this opinion are discussed below. They also
agreed that labour should not have
been induced on 7 December, when
the NST was non-reactive. Furthermore, the CTG monitoring of the baby
should have continued during
delivery because of the assessment of
poor variability. They agreed that the recordal of observations
during labour was poor.
[17]
Disagreement related, firstly, to Dr Mtsi’s acceptance of the
anticipated date of delivery (16 November) as recorded
on the
respondent’s clinic card. Prof Odendaal was of the view that,
deriving from the respondent’s last menstruation,
on 15
February, the correct date of delivery was 22 November.
[18]
Further, according to Dr Mtsi an NST done on 23 November was assessed
as non-reactive. Prof Odendaal could not find such a
test on the
medical records. At the trial Dr Mtsi admitted that her reference to
such a test done on this day was erroneous.
[19]
Lastly, it was Dr Mtsi’s opinion that, had the baby been
delivered by a c-section on 7 December, it would have been saved
from
harm or the extent thereof would have been ameliorated. Prof
Odendaal’s opinion, however, was that the damage to the
brain
had occurred weeks prior to induction of labour. The c-section would
not have improved the baby’s condition as it was
already
severely microcephalic when labour was induced.
[20] At
the trial the respondent gave evidence. As would be expected, apart
from narrating the history of her pregnancy and delivery,
as set out
above, she could not say much about the cause of the brain injury to
her baby or when such injury occurred. Only two
of her qualified
experts testified on her behalf: Dr Mtsi, and Dr Reid. Both Prof van
Toorn, and Prof Odendaal testified on behalf
of the MEC.
Negligence
during the antenatal period 20 September – 12 October
[21]
Dr Mtsi’s opinion, based on a consultation she had had with the
respondent, and examination of the respondent’s
medical
records, was that when the UTI persisted until 4 October, further
investigations should have been done to determine the
cause thereof.
An MST test should have been done as early as 4 October, when the
infection still persisted. Further, on that day
the respondent should
have been admitted into hospital instead of simply continuing with
the antibiotics. This would have provided
a more reliable diagnosis
of the problem. At week 34 of the pregnancy, a c-section should have
been done as the baby could have
survived outside the hostile uterus.
Failure to take these steps constituted substandard medical treatment
by the medical staff.
They ignored ‘signals of something having
gone wrong’.
[22]
Prof Odendaal, on the other hand, was of the opinion that although
infection during pregnancy could result in cerebral palsy,
it was
improbable that the UTI could have had such a result. He referred to
specific medical literature of a study conducted in
this regard, the
results of which revealed no link between UTI during pregnancy and
cerebral palsy developing in a uterus. This
evidence was undisputed.
30
November
[23]
As stated above, two NST tests were conducted on this day. The first
result was flat, showing very low beat to beat variability.
The
second appeared to show significant improvement from the first; the
baseline variability appeared to have improved compared
to the first.
This is the result that was incorrectly recorded. Dr Mtsi’s
evidence was that were it not for the negligent
misreading of the
repeat test, a c-section could have been performed to save the baby.
[24]
Prof Odendaal’s opinion was that even if a c-section had been
performed on this day it would not have prevented the injury
as the
brain damage and microcephaly had already occurred. But both Dr Mtsi
and Prof Odendaal held the view that the respondent
should not have
been sent home on this day.
[25]
Much of the MEC’s case regarding the microcephaly and brain
damage is based on Prof van Toorn’s opinion drawn from
the
medical records of the CTG scan done at Tygerberg Hospital. The
relevance of this opinion straddles the period starting from
week 34
of the pregnancy to delivery of the baby on 7 December.
7
December
[26]
Again, as already stated, both Dr Mtsi and Prof Odendaal were of the
opinion that a c-section should have been done in view
of the
non-reactive NST. Both criticised the sparsity of recordings of the
progress of the respondent’s labour and the baby’s
heart
rate. However, both Prof Odendaal and Prof van Toorn insisted that
the microcephaly had already occurred by this time.
[27]
Professor van Toorn gave detailed evidence of microcephaly
development. He explained that a significant injury to the brain
is
followed by swelling, which subsides a day or so later and is
accompanied by the death of some of the brain cells, leading to
loss
of volume of the head. This process happens over weeks. Where brain
injury is sustained during delivery, the decline in head
growth could
be noticeable in the third to fourth month.
[28]
Against this background, his opinion was that, given the extent of
shrinkage of I.’s head, it was unlikely that it was
a result of
an occurrence during delivery or a week before then. The CTG scan
done after day 12 of the baby’s birth showed
severe cortical
laminar necrosis (loss of the white brain matter). The whole brain
was already severely shrunken. Fluid had collected
and filled up the
gaps around the brain where the white matter had been, hence the
hydrocephaly.
[29]
Prof van Toorn also explained that brain injury (resulting in death
of brain cells) is usually visible on the CT scan at two
weeks. At
that stage the necrosis imaging presents as lines on the scan. It
then peaks at one to two months after the insult. In
this case, at 13
days after birth, the scan already showed ‘global white matter
hypodensity’ (whole layers of cortical
laminar necrosis), which
was out of keeping with an injury at birth. Such extensive brain
damage could only have developed over
four to five weeks. On the
other hand if there had been an intrapartum insult the head
circumfirance would have been normal with
a decline only becoming
evident some months later. Further, the presence of gliosis (scar
tissue) shown on the MRI scan was an
indication that the insult
occurred after 34 weeks as no scar tissue could have been formed
prior to that time.
[30]
In addition, Prof van Toorn referred to four internationally accepted
criteria for diagnosis of an intra partum hypoxic event
were met in
this case. Only two of these were met in this case, the first being
metabolic acidosis with blood acidity of less than
pH 7 within the
first two hours of birth, resulting from the lack of oxygen during
birth. In this case I.’s blood pH of 7.22
at birth, was
inconsistent with intrapartum brain injury. The second criterion –
symptoms of encephalopathy at birth, and
the third – cerebral
palsy of a specific kind, were met. The fourth – the exclusion
of other causes of brain injury
was also not met because an
ultrasound done on day 12 after the baby’s birth showed blood
breakdown products or remnants
of blood clots. This was evidence of
previous bleeding in the baby’s brain or the HIE. Such bleeding
could also have caused
lack of oxygen and breakdown of the brain
cells leading to the brain damage.
[31]
Professor van Toorn also considered that several other factors
militated against brain injury during delivery. The first was
that
there was no ‘sentinel’ (trigger) event during birth.
[9]
Further, the improvement in the Apgar score was
uncharacteristic of intrapartum brain injury where the norm is that
the five minute
Apgar score remains at 0 to 3.
The
high court’s findings
[32] In
upholding the respondent’s claim the high court found that the
defendant’s medical staff breached their legal
duty towards the
respondent and the baby:
‘
by
failing to assess, manage and treat them with the necessary degree of
care, skill and diligence as expected of reasonable medical
practitioners and or nursing staff in their position, particularly on
30 November 2011 and the subsequent induction on 7 December
2011.’
[33]
Apart from this general conclusion the high court made no factual
finding as to the cause of the brain damage. Nor did it set
out
explicitly the reasons for preferring the evidence of Dr Mtsi to that
of the other expert witnesses. It also made no finding
related to the
UTI.
[34]
Although the high court did not make a specific factual finding, it
seemed to incline in favour of a conclusion that the brain
damage to
the baby occurred during birth. It reasoned that Prof van Toorn had
not been ‘absolutely certain’ that the
injury to the
patient’s brain occurred prior to the start of labour. The high
court remarked that there was a likelihood
that it occurred during
the onset of birth.
[35]
It also found weighty the ‘diagnoses’ (contemporaneous
notes) made by clinicians at Paarl and Tygerberg Hospitals,
that the
baby had suffered ‘birth asphyxia’. These notes, the high
court reasoned, belied the conclusion that the injury
occurred before
labour as postulated by Prof Odendaal and Prof van Toorn. Instead,
they supported Dr Mtsi’s opinion.
[36]
The absence of a true factual finding as to the actual cause of the
damage was not raised in the appeal. The MEC’s approach
was to
rather rely on the absence of a causal link between its employees’
alleged acts and/or omissions and the injury (and
sequelae) suffered
by the baby.
Discussion
[37]
It is trite that she who asserts a damage causing event must prove
it. The legal duty owed by the medical staff at the various
health
facilities to the respondent and her baby entailed that they adhere
to the general level of skill and diligence possessed
and exercised
at the time by members of the branch of the profession to which they
belonged.
[10]
They had no duty to provide the highest possible
degree of professional skill. Only reasonable care and skill was
required.
[11]
The respondent had to prove, through credible and
persuasive evidence that the doctors and nurses failed to adhere to
the required
standards.
[38]
The opinion of the medical experts was central to the determination
of the required level of care and whether there was a breach
of it.
The requirement in evaluating such evidence is that expert witnesses
support their opinions with valid reasons. Where proper
reasons are
advanced in support of an opinion, the probative value thereof is
strengthened.
[12]
‘
It is
not the mere opinion of the witness that is decisive but his ability
to satisfy the Court that, because of his special skill,
training and
experience, the reasons for the opinion which he expresses are
acceptable.’
[13]
In
Michael v Linksfield Park Clinic (Pty)
Ltd
[14]
this court held that:
‘
The
court is not bound to absolve a defendant from liability for alleged
negligent medical treatment or diagnosis just because evidence
of
expert opinion, albeit genuinely held, is that the treatment or
diagnosis in issue accorded with sound medical practice. The
court
must be satisfied that such opinion has a logical basis, in other
words that the expert has considered comparative risks
and benefits
and has reached a “defensible conclusion”’.
[39]
The first difficulty with Dr Mtsi’s evidence is that she could
not allude to a specific risk associated with the UTI
that could have
caused cerebral palsy. It was common cause that UTI is common in
pregnant women. In her medico-legal report she
had referred to its
poor response to treatment, without highlighting it as a problem in
the respondent’s management as she
did in her evidence. She
also admitted that the fact that by 4 October the urine still had
nitrates did not necessarily mean that
the respondent was not
responding to the Amoxicillin treatment. In any event, the UTI
problem had resolved by 16 October. Significantly,
she could not
dispute Prof Odendaal’s evidence that there is no study linking
UTI to cerebral palsy and that the limited
instances in which
infection during pregnancy results in cerebral palsy are those in
which the infection occurs in the placenta
and its membranes. On the
common cause facts, that is not what happened here.
[40]
On her own evidence Dr Mtsi could not understand those portions of
the records which were written in Afrikaans. She relied
on the
respondent in this regard. All of this probably affected her
comprehensive understanding of the medical record, and the
admitted
to factual errors in her report.
[41]
Further, there was no factual basis for her opinion that if the baby
had been delivered during the period 32-34 weeks it would
have been
saved from harm, particularly considered against Prof Odendaal’s
evidence that it is best to allow a baby to remain
in utero to full
term and that delivery of a baby prematurely was not a decision taken
lightly.
[42]
In relation to her opinion that the microcephaly was not picked up on
the two occasions when scans were done on the 30 November,
Prof
Odendaal disagreed with her opinion that an ultra sound would have
led to detection of the problem. His opinion was that there
would
have been no previous head measurement to compare with the
measurement done at that stage. It was common cause that the
respondent had missed the 18 week routine scan. Her first clinic
visit was during the 24th week. In any event the evidence was that
by
that stage (30 November) the damage had already been done.
[43]
Prof van Toorn was cross examined extensively on entries made by the
staff at the paediatric ward. The first was the diagnoses
of ‘birth
asphyxia’ on I.’s hospital card. The contention on behalf
of the respondent was that the notes were
a reliable diagnosis of
asphyxia during delivery and could not be ignored, particularly in
the light of lack of the evidence by
the authors thereof. Much was
made of the failure by the MEC, to call these witnesses. Prof van
Toorn’s evidence in this
regard was that loose use of the term
‘birth asphyxia’ was a common occurrence amongst medical
staff at Tygerberg Hospital.
Further, those who made the diagnosis
did not possess his expertise and had had no access to the
information which became available
to him after the CT scan was done.
Hence the note on the same hospital records by those doctors that the
baby should be referred
to him for further medical attention.
[44]
In addition, Dr Mtsi admitted that the term ‘birth asphyxia’
was non-descriptive in relation to the timing of the
damage causing
event; that it can mean antenatal, intrapartum or postpartum and that
the terms ‘birth asphyxia’ and
‘perinatal asphyxia’
were used interchangeably in the medical records at Tygerberg
Hostpital.
[45]
The crux of Prof van Toorn’s opinion was that, on a
consideration of all the evidence, the baby suffered an antenatal
injury at about 34 weeks into the pregnancy or at least some weeks
before labour was induced. Dr Reid agreed in the main with Prof
van
Toorn’s opinion. He accepted, for example, that if the initial
blood sample, from which the baby’s pH level was
taken within
two hours of birth, and the pH level was 7.22, then Prof van Toorn’s
opinions were entirely correct. As for
the rest, Dr Reid’s
evidence was limited to an interpretation of existing medical
records. Regarding the timing of the brain
injury he postulated two
scenarios, antenatally and intrapartum. In his view, both scenarios
were perfectly plausible, although
he personally favoured an
intrapartum asphyxial insult. Moreover and in any event, his field of
expertise was adult neurology,
unlike Prof van Toorn, who was a
paediatric neurologist.
[46]
The second aspect on which Prof van Toorn was cross examined at
length related to notes made by Dr Friedericks, a paediatric
registrar, that the delivery ‘look[ed] like ventouse delivery
(using a vacuum); knob on head; has not cried yet’. The
contention was that the ventouse delivery of the compromised baby
contributed to the brain damage.
[47]
Dr Mtsi’s persistence that the
delivery was by means of ventouse ignored the records from the
obstetrics ward staff, that
this was a normal vaginal delivery. It
also ignored the fact that the entry by Dr Friedericks was, in its
own terms, conjectural.
Prof Odendaal provided a logical response
that if there had been ventouse delivery, the respondent would have
remembered being
placed in the lithotomy
[15]
position to facilitate such delivery. She had made
no reference to that fact. Further, Prof Odendaal’s opinion was
that even
then it was unlikely that such a procedure would have
affected the outcome, as microcephaly would not have developed over a
week.
[48]
The opinion evidence of Prof Odendaal and Prof van Toorn was founded
on clearly established facts. It was logical and well
reasoned.
[49]
Whilst it must be accepted that on the evidence the notional
reasonable medical practitioner in the place of the medical staff
who
attended to the respondent at Paarl Hospital would not have sent her
home on 30 November, the evidence shows that the damage
to the baby’s
head had probably already occurred by that time. Dr Mtsi conceded
that the foetus was probably already compromised
by these date. There
was therefore no causal link between the failure to intervene and the
damage that was occasioned. The same
conclusion must be reached in
relation to reliance on alleged negligence subsequent to the 30
November.
[50]
In the end, not only the cause of the damage remained unidentified
but also its timing. The fact that harm had been occasioned
was not,
on its own, proof that the medical staff had caused it, or that they
had done so negligently, or even that it had resulted
in the brain
injury. In
Goliath v Member of the
Executive Council for Health, Eastern Cape
[16]
this court warned against reverse reasoning of
this kind as follows:
‘…
to
hold a doctor negligent simply because something had gone wrong,
would be to impermissibly reason backwards from effect to cause.’
[51]
Consequently the following order is made:
1 The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
2 The order of the high court is set aside and substituted with the
following order:
‘
The
plaintiff’s claim is dismissed with costs, such costs to
include those consequent upon the employment of two counsel’.
_________________
N Dambuza
Judge of Appeal
APPEARANCE
For
Appellant: A Sholto-Douglas SC (with him S K Witten)
(Heads
also prepared by H Bawa SC)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
Respondent: D B Ntsebeza SC (with him Z L Mapoma)
Instructed
by:
Thamsanqa
Phillips Attorneys, Cape Town
Ponoane
Attorneys, Bloemfontein
[1]
This is an antenatal recordal of a foetal heart
rate pattern. According to the glossary of terms supplied by the MEC,
the result
of the test is ‘reactive’ ‘if there are
two or more foetal heart rate accelerations within a 20-minute
period,
with or without foetal movement discernible by the woman’.
And it is ‘non-reactive’ if there is ‘a lack
of
sufficient foetal heart rate accelerations over a 40-minute period’.
The evidence was that the acceleration should be
15 beats a minute.
The acceleration is then increased over 15 seconds, to at least 20
beats per minute.
[2]
The Cardiotography (CTG) Scan, which traces the
baseline fetal heart rate, recorded a baseline rest rate of 130 bpm.
It is said
to be normal falls within the range of 120 to 160 beats
per minute.
[3]
Abnormally small head. A congenital condition
associated with incomplete brain development.
[4]
A tumor or swelling filled with blood beneath the
periosteum (a specialised connective tissue that covers all bones).
[5]
A scoring system doctors
and nurses use to assess newborns at one minute and five minutes
after birth.
[6]
A condition in which fluid accumulates in the
brain.
[7]
Supra fn 2.
[8]
This is the period starting on 24 September.
[9]
The Professor gave an example of a mother
suffering a cardiac arrest or having high or low blood pressure, or
foetal bradychardia.
[10]
Van Wyk v Lewis
1924 AD 438
at 444.
[11]
Mitchell v Dixon
1914 AD 519
at 252.
[12]
Schwikkard & Van der Merwe,
Principles
of Evidence
4 ed at 103.
[13]
Menday v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 569B.
[14]
Michael v Linksfield Park Clinic (Pty) Ltd
[2001] 1 All SA 384
(SCA) para 37.
[15]
The
lithotomy position is a medical term referring to a common position
for surgical procedures and medical examinations involving
the
pelvis and lower abdomen, as well as a common position for
childbirth.
[16]
Goliath v Member of the Executive Council for
Health, Eastern Cape
(085/2014)
[2014]
ZASCA 182
;
2015 (2) SA 97
(SCA) at para 9. Citing with approval
Medi-Clinic Limited v Vermeulen
(504/13)
[2014] ZASCA 150
;
2015 (1) SA
241
(SCA) at para 27.