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[2017] ZAKZPHC 37
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P.S obo A.H v MEC for Health for the Province of KwaZulu-Natal (14197/2014) [2017] ZAKZPHC 37 (24 August 2017)
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NOT
REPORTABLE
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 14197/2014
In
the matter between:
P
S obo A
H
PLAINTIFF
and
MEC
FOR HEALTH FOR THE PROVINCE
OF
KWAZULU-NATAL
DEFENDANT
JUDGMENT
Delivered
on : THURSDAY, 24 AUGUST 2017
OLSEN
J
[1]
The plaintiff in this matter sues in her capacity as mother and
natural guardian of her minor daughter A. who was born on […]
April 2010 at the Prince Mshiyeni Memorial Hospital, Umlazi, Durban.
A. has cerebral palsy. She is mentally and physically
handicapped as a result of irreversible brain damage. It is the
plaintiff’s case that the brain damage was caused by
the
wrongful and negligent conduct and omissions of the medical staff at
the hospital who were responsible for managing the plaintiff’s
labour and A.’s birth.
[2]
The Prince Mshiyeni Memorial Hospital is a State hospital. The
nursing and other medical staff at the hospital are public
servants
employed by the MEC for Health for the Province of KwaZulu-Natal.
The MEC is sued as the party vicariously liable
for any damages
suffered in consequence of A.’s condition if the hospital staff
are responsible in law for it.
[3]
In the plea the defendant admitted the existence of a contract
between the defendant and the plaintiff (representing herself
and her
child to be born) concluded on admission to the hospital, in terms of
which the defendant undertook to provide such medical
and nursing
care as was reasonably necessary to ensure the safe delivery of the
child and to preserve the well-being of both plaintiff
and her child
prior to, during the course of and after the birth of the child.
The defendant admitted that in terms of the
contract the medical
treatment and nursing care was to be provided with such care and
skill as is reasonably expected of specialised
medical practitioners
and nurses in the circumstances; and that it would not be negligently
performed. The plaintiff also
sues in the alternative in
delict. The defendant admitted that there was a duty of care owed to
the plaintiff and A. to perform
the medical services promised on the
plaintiff’s admission exercising reasonable skill and
diligence, and without negligence.
(As to these concessions
made at the outset by the defendant, see
Oppelt
v Department of Health, Western Cape
2016 (1) SA 325
(CC), para [54].)
[4]
The pleadings reveal disputes of fact as to the progress of the
plaintiff’s labour and the birth of the child, and over
the
nature and quality of the care afforded to the child after birth.
The defendant denied any deviations from the
standard of care due to
the plaintiff and the baby. Negligence was in issue.
[5]
On the pleadings the fact that A. suffers from cerebral palsy was
disputed. However by the time the trial commenced the
defendant
accepted that the child’s brain is damaged as a result of which
she suffers from cerebral palsy. The
real issue centres
around the question as to whether the child’s condition was
caused by any of the alleged shortcomings
in the medical care
provided for the plaintiff and A.. Ultimately this became the
central issue in the case, as, by the end
of the trial, counsel for
the defendant found themselves bound in their heads of argument to
concede that it cannot be seriously
disputed that there were
deficiencies in the treatment of the plaintiff prior to A.’s
birth; and in oral argument they were
unable to say anything to avoid
a conclusion that the deficiencies were the product of negligence.
[6]
The question as to whether there were any deficiencies in the
treatment of A. after her birth remained in issue to the end.
However the complaints about A.’s treatment are not the central
feature of the plaintiff’s case.
[7]
At the commencement of the trial it was ordered at the request of the
parties that the quantification in money terms of any
proven
liability on the part of the defendant be separated from all other
issues in the case, which other issues were to be decided
separately
and first. The question at this stage is accordingly whether
the plaintiff is entitled to an order declaring the
defendant liable
to pay compensation in respect of A.’s condition.
[8]
Four witnesses were called in support of the plaintiff’s case.
The plaintiff herself was one of them. The
other three were
expert witnesses who were called to express opinions based on the
facts available to them. The first of
these was Dr Y Kara, a
paediatrician whose primary field of expertise is neo-natal intensive
care. The second was Dr D M
McLynn, a specialist obstetrician
and gynaecologist. The third was Professor J W Lotz, a
professor of radiology at the University
of Stellenbosch and
Tygerberg Hospital.
[9]
Two witnesses were called for the defence. The first of these
was Professor E J Buchmann of the Department of Obstetrics
and
Gynaecology at the University of Witwatersrand. The second of
the defendant’s witnesses was Dr N Naidoo, a neo-natologist
who
is the clinical head of the Department of Paediatrics / ICU at the
Prince Mshiyeni Memorial Hospital. She headed the
neo-natal
unit at the time of A.’s birth. Like Professor Buchmann,
Dr Naidoo expressed opinions, notwithstanding the
fact that given her
position now and at the material time, she cannot be considered to be
independent. As I understood counsel
for the plaintiff, no
objection was raised to the reception of such opinion evidence,
subject to the qualification that sight should
not be lost of the
fact that it is her hospital and in part her unit which is the
subject of critical analysis in this case.
As to the
facts of this case Dr Naidoo has no recollection of the plaintiff or
A.. Like the other witnesses besides the plaintiff,
her
evidence was confined to commentary on the medical records, with
occasional nods in the direction of the factual evidence given
by the
plaintiff herself.
[10]
The medical records (all of which emanate from the possession of the
defendant) are not models of clarity. Some appear
to be
incomplete. Some are very difficult to read. Where
entries are unclear or cryptic, and open to interpretation,
the
experts were left to draw their own conclusions because none of the
defendant’s staff who were involved in the activities
which the
documents purport to record was called either to give an account of
what happened (if the witness had any recollection
of it), or to
explain the record keeping and what conclusions ought to be drawn
from some of the entries which could have done
with explanation.
Insofar as Dr Naidoo is concerned, by the time her evidence was done
I was no longer certain that she stood
by her initial contention in
chief that she would have been the person who authorised the
discharge of A. from the hospital.
That issue aside, she was
unable to say that she had anything to do in person with this
particular baby during her stay at the
hospital. The nursery
accommodates about 45 babies at a time. The facility receives
some 300 of the 1200 babies born per
month at the hospital.
[11]
It would not be appropriate in this judgment to furnish an account of
the facts separately from an assessment of the opinions
expressed in
connection with those facts. The only witness’s evidence
which requires evaluation for credibility is
that of the plaintiff
herself, and that can be done as the account of the facts proceeds,
when she makes a contribution to an understanding
of them.
Before proceeding with the account of these facts I must also mention
a feature common to the evidence of both Dr
Naidoo and Professor
Buchmann. At the outset the evidence of both of these witnesses
on a number of significant issues was
firmly in favour of the
defendant. But some of these views changed, or became less
firm, by the time their evidence was done.
As I do not think
that any of these shifts in ground, where they occurred, go to the
credibility of the witness, I shall where
possible concern myself
only with the position ultimately adopted by the witness concerned.
(My clear impression is that
they shifted their ground on mature
reflection encouraged by the re-assessment of the case during the
course of giving oral evidence.)
Labour
and the Birth of A.
[12]
According to what she told Dr Kara when he interviewed her, the
plaintiff was 18 years of age when she fell pregnant with A..
This seems to be supported by the hospital records which give her age
as 19 at the time of A.’s birth. It also coincides
with
her date of birth reflected on her identity document which appears in
Exhibit A. For some reason, which was not explored,
when she
gave evidence she said she became aware of her pregnancy when she was
20 years of age. Perhaps she misunderstood
the question which
generated that answer. I certainly did not get the impression
that there is any deficit in the plaintiff’s
understanding of
things which would cause her to believe that she was actually two
years older than she really was when she fell
pregnant. Neither
did I get the impression at any stage of A.’s evidence that she
was trying to mislead the court.
[13]
This was her first pregnancy. She attended the clinic at
Q-Section, Umlazi, once a month between the fourth and ninth
months
of her pregnancy. She described how she was medically examined
on the occasion of each of these visits and said that
no problems
were drawn to her attention at the clinic.
[14]
On 9 April 2010 the plaintiff decided that she was in labour, feeling
pain “both front and back”. At 3pm
on that day she
took a taxi to the Prince Mshiyeni Memorial Hospital. According
to her she arrived there at about 4:30pm
to 5pm. She went to
what she understood to be the designated place, produced her card and
was instructed by a nurse to go
to a place where she would change her
clothing for a hospital gown. Having done that she returned and
she was instructed
to lie on a bed. She was thereafter examined
and then told to go and sit in a waiting area. The hospital’s
admission
record shows that the plaintiff was admitted at 7:20pm.
A two to three hour delay in the examination of a patient who attends
hospital declaring that she is suffering labour pains strikes me as
inordinate. However it seems clear that insofar as timing
is
concerned the plaintiff’s evidence is not reliable. She
was very young and this was her first pregnancy. Furthermore,
no witness advanced the proposition that this particular delay, if it
occurred, should be regarded as particularly material in
the context
of the present enquiry.
[15]
The imperfections in the plaintiff’s memory for times on the
night in question are apparent from Dr Kara’s report
of his
interview with the plaintiff. She insisted that A. was
born by caesarean section at about 3am on 10 April.
The
hospital records show conclusively that this has to be wrong.
According to the hospital records the baby was extracted
at 09h37,
some six and a half hours later than the time the plaintiff asserted
in conference with Dr Kara, despite his attempts
to illustrate to her
with reference to the hospital records then available to him that she
must be wrong. It does seem
that by the time she gave
evidence the plaintiff had reconciled herself to the fact that A.
must have been born later. She
mentioned in her evidence an
examination by a doctor who told her that a caesarean section would
be necessary, and said that when
that happened it appeared to her
that the morning shift had come on duty. The evidence that
somewhere in the middle of the
night a belt was put on her (she says
to see if the baby was still alive) coincides with hospital records,
as does an examination
at 6am by nursing staff and an examination by
a doctor at 7:30am. It strikes me that all that need be added
concerning the
plaintiff’s evidence covering the time up to
A.’s birth is that she stressed more than once that throughout
this period
she felt considerable pain.
[16]
Before commencing a consideration of the medical records, the
plaintiff’s case as to how A. sustained brain injury should
be
stated. It is the plaintiff’s case that during the course
of labour the baby suffered a prolonged partial hypoxic
ischemic
injury. The word “hypoxic” signifies a lack of
oxygen and the word “ischemic” signifies
a diminished
blood supply or drop in blood pressure. Cerebral injury is the
result if these combined conditions endure too
long.
According to Dr Kara twenty minutes may be enough. A period of
45 minutes was also mentioned.
[17]
According to the medical records when the plaintiff was examined at
7:20pm on 9 April 2010 it was known and recorded that she
had
attended the clinic at Q-Section, Umlazi, that it was her first
pregnancy, that she was over 41 weeks (noted as “41+w”)
and that she was complaining of labour pains. She was examined
and found to be 2cm dilated. That signifies early labour.
The head of the baby was four fifths above the brim, which, Dr
McGlynn explained, means that it was not yet reaching the foot of
the
pelvis. The foetal heart rate was 140 beats per minute, which
is normal. The membranes were intact. The form
upon which
all of this was noted makes provision for the examining nurse or
doctor to make an assessment and give instructions.
In this
block on the form the word “CTG” appears, and underneath
that an instruction that there should be a re-assessment
in four
hours. None of the aforegoing is in dispute.
[18]
Dr McGlynn explained in evidence that the letters “CTG”
are shorthand for the word “cardiotocography”.
A
CTG device is comprised of a receptor which is fixed to a belt, which
in turn is placed around the mother’s abdomen.
This
receptor is capable of measuring the foetal heart beat and the
occurrence of contractions. The information it collects
is sent
electrically to a machine which causes it to be inscribed on a
rolling sheet of paper in the form of two graphs, one of
which
records the foetal heart beat and the other the occurrence of
contractions. The two records are synchronised.
The
printout not only enables the medical staff to observe and monitor
both the foetal heart beat and the frequency of the contractions,
but
also to satisfy themselves that a proper relationship between
contractions and the foetal heart beat is maintained.
Contractions affect the foetal heart beat because when they occur
they interfere with the supply of blood to the baby.
[19]
It is not clear from the notes of the examination at 07:20pm on 9
April 2010 whether the instruction was to do a CTG scan of
the
plaintiff there and then, or whether whoever gave the instruction
intended it to be done at the time of re-assessment four
hours
later. The person concerned was not called. We do know
that no CTG scan was done at that time.
[20]
According to Dr McLynn there were at least four factors which should
have signified to any midwife or doctor examining the
plaintiff at
07:20pm on 9 April 2010 that particular attention and close
monitoring of the plaintiff was required. They are
that she was
still a teenager; this was her first pregnancy; the pregnancy had
lasted in excess of 41 weeks; and having regard
to the foregoing and,
as I understand it, the position of the head of the baby at the time,
there was a risk of mal-presentation
and that the pelvis might be too
small for the head (or the head too big for the pelvis). (I
note from the report under the
heading “Pelvic Findings”,
that the block marked “poor” was crossed adjacent to the
word “application”.
I cannot recall this being
mentioned in evidence.)
[21]
Dr McLynn explained that he identifies the fact that the pregnancy
had gone beyond 41 weeks as a risk factor because the placenta
generally starts deteriorating from 40 weeks onwards. A
correctly functioning placenta is necessary
inter
alia
for the mother’s
oxygen to be passed into the baby’s blood supply.
[22]
Professor Buchmann was not in full agreement with Dr McLynn’s
analysis of the issue as to whether the plaintiff ought
to have been
regarded as a high risk patient. He accepted that the fact that
the pregnancy had proceeded beyond 41 weeks
was a risk factor.
He rejected the proposition that the plaintiff was at risk because of
her age, saying that anyone over
16 years of age was fine. He
disagreed with the proposition that a first pregnancy involves
particular risks. He took
the view that anything that happens
can be dealt with. I must say, however, that I was not
impressed with his response when
questioned as to why it is that when
it is a first pregnancy, it is always noted (as it was in this case)
as such, with the word
“primigravida”. His answer
was that it was probably the habit of midwives to do so.
However Professor Buchmann
did express the opinion that a patient
going into labour who was over 41 weeks should be placed, and as I
understood his evidence,
maintained on a CTG monitor throughout.
That was not done in this case. The dispute between the two
obstetricians over
the extent to which the plaintiff presented as a
high risk case need not be discussed any further given events which
followed.
[23]
The plaintiff was placed on a CTG device at 00h20 on 10 April, that
is to say some five hours after she had first been examined.
That is the next record of any attention being paid to the
plaintiff. According to guidelines for maternity care in South
Africa (3
rd
Edition, 2007) issued by the Department of Health, during the latent
phase of labour (when the cervix is 3cm or less dilated) the
mother’s
blood pressure, pulse rate and temperature should be checked every
four hours and at the same four hourly intervals
vaginal examinations
should be undertaken. Contractions and the foetal heart rate
should be checked two hourly. Professor
Buchmann agreed that
this was correct, as he did the proposition that the latent phase of
labour is, according to the guidelines,
prolonged if it exceeds eight
hours. The CTG device was removed from the plaintiff after half
an hour, which was criticised
as inadequate. According to
Professor Buchmann a doctor should become involved if the latent
phase exceeds eight hours.
Judging from the evidence of the
plaintiff herself, the latent phase had certainly exceeded eight
hours by midnight, but the staff
who attended to her in the first
hour of 10
th
April might very well not have known that given that the first
examination of the plaintiff took place only five hours before.
[24]
Before dealing with the CTG referred to immediately above, I should
mention the record of the examination of the plaintiff
in the first
hour of the day which was undertaken or recorded, according to the
document, at 00h40. It deals with the CTG
in the past tense,
which suggests that the watches or clocks of the person managing the
CTG device and the nurse or midwife examining
the plaintiff did not
coincide. What was noted in the course of that examination is
in at least two respects a little confusing.
(a)
Firstly, the maturity of the
baby was recorded as 39 weeks. Professor Buchmann said that
sometimes the nurses estimate the
“age” of the foetus by
their sense of the size of the baby, rather than by having regard to
the records, which may
explain that.
(b)
Secondly, the cervix was
recorded as being 3cm dilated. The record of the next
examination (five or more hours later) records
the cervical dilation
as 2cm; i.e. what it was upon admission.
[25]
The report of the examination of 00h40 ends with the words “re-assess
in two hours!”. Professor Buchmann’s
evidence was
to the effect that the exclamation mark signifies that the nurse is
“shouting” – i.e. emphasising
that the next
assessment must be done in two hours. But he goes on to observe
that he cannot see from the record what it
was or might have been
that made the nurse “shout”.
[26]
The duties of the defendant and the hospital with regard to the
maintenance and production of records were not discharged in
the
present case. (As to the duties of a hospital with regard to
the keeping and protection of records see
Khoza
v MEC for Health and Social Development, Gauteng
2015 (3) SA 266
(GJ).) The plaintiff’s lawyers
tried desperately to ensure that all hospital records necessary for
the conduct
of this case were available at the commencement of the
trial. They were not. Copies of some of them were
produced.
Insofar as CTG recordings are concerned barely
legible copies were first provided to the plaintiff’s
attorneys. On
the morning of the day on which Dr McLynn
commenced giving evidence a slightly better set of copies of CTG
recordings was provided.
It was marginally more legible than
what the witness had before. The only explanation given for
this state of affairs was
from the bar, and it was in effect that
(a)
the original file containing
the original records had been lost and could not be found; and
(b)
a better copy of the CTG
print-outs had been produced on the first day of the trial simply
because it was an earlier copy (perhaps
one taken off the originals)
than the ones which had previously been provided to the plaintiff’s
attorneys.
[27]
At the end of the trial, the hospital file relating to this matter
was miraculously found. There is still no clear explanation
for
all of this. Be that as it may, the plaintiff proceeded with
her action, her lawyers having done the best they could
with what was
available. The file contains the originals of the three CTG
print-outs relating to the plaintiff. The
originals are
obviously more legible than anything that was available when the
obstetricians were giving evidence. The originals
are tracings
on paper which appears to be of the kind which was used in early fax
machines. The imprint of the styli was
either relatively poor
at the outset, or the tracing has faded; or perhaps both.
[28]
Reverting to the CTG taken over a period of half an hour in the first
hour of 10 April, its content generated a debate and
dispute between
Dr McLynn and Professor Buchmann as to whether an excessively high
foetal heart rate (tachycardia), signifying
distress, could be
assessed as such at or above 150 beats per minute or at or above 160
beats per minute. Dr McLynn favoured
the lower figure and
Professor Buchman the higher one. Dr McLynn read the poor
version of the CTG print-out as signifying
a heart rate going up to
just under 160 beats per minute. Having the benefit of the
original, I am just able to see that
at times the heart rate was
above 160 beats per minute. Even according to Professor
Buchmann that would signify a condition
of tachycardia. That is
perhaps why the nurse who examined the plaintiff immediately after
the CTG had been run recorded
that the patient should be examined
again in two hours; and signified that it was imperative that it be
done by using an exclamation
mark.
[29]
The plaintiff was not examined two hours later. According to
the hospital records she was next attended to at 05h20 when
the
second CTG was commenced.
[30]
The CTG that commenced at 05h20 was removed at 06h05. Both Dr
McLynn and Professor Buchmann agree that the device ought
not to have
been removed. That brought crucial monitoring to a stop.
[31]
Reading the poor copy of the CTG print-out available to him Dr
McLynn’s evidence concerning it may be summarised as follows.
(a)
It is difficult to be certain,
but there appears to be a loss of baseline variability.
Baseline variability is, as I understood
his evidence, a variation in
the rate at which the heart beats generated in reaction to the
commencement and cessation principally
of movements by the baby and
contractions. His difficulty was that the print-out on the CTG
paper of the contractions was
all but invisible to him on the copy he
worked with. A loss of baseline variability is nevertheless a
sign of hypoxia when
it occurs in association with tachycardia.
(b)
He observed tachycardia.
He made the observations that from what he could see the heart rate
went above 160 beats per minute.
With the benefit of the
original I am able to make the observation that it was consistently
higher than 160, and at times appeared
to be touching 175 beats per
minute.
(c)
Dr McLynn also observed
decelerations. A deceleration is a drop greater than 15
beats per minute for a period of greater
than 15 seconds. He
observed three or so decelerations, one of which was down by 35 to 40
beats per minute and another by
40 beats per minute.
Decelerations can occur in conjunction with contractions, but if the
rate of the heart is not restored
within a minute or so after the
contraction, that indicates hypoxia. If it carries on and on
there will be an oxygen deficit
which will make the decelerations
become worse. Unfortunately Dr McLynn was unable to express a
view with any precision as
to the qualities of the decelerations as
he was unable to see any of the print-out relating to accompanying
contractions.
There is something to be seen on the original,
but I am afraid that it is not as easily read as the graph upon which
the stylus
plots the heart rate, and certainly not capable of
interpretation at all by anyone who is not an expert in the field.
[32]
Professor Buchmann was critical of the fact that the CTG was removed
at 06h05. The CTG monitoring should have continued.
He
agreed with the proposition that the CTG indicated foetal distress
and ventured a suggestion that with decelerations already
occurring
at 5am, the condition of distress must have started somewhere between
00h50 (when the first CTG was removed) and 05h20.
One does not
know how long a condition of distress subsisted prior to the
commencement of the second CTG reading.
[33]
The nurse’s examination of the plaintiff at 06h00 recorded the
plaintiff’s own condition as satisfactory but the
foetal
condition as distressed. It also recorded a meconium stained
plug. Meconium is a mucus-like material lodged
in the
intestines of a full term foetus, which is apparently a mixture of
intestinal secretions and some amniotic fluid.
If the foetus
passes such substances they will stain the “waters”
(which the medical fraternity calls the “liquor”).
Meconium staining is also an indication of foetal distress. The
cervix was assessed as 2cm dilated.
[34]
The record of the examination at 6 o’clock continues with the
words “for CTG”, which one would think meant
that the CTG
should be maintained; or perhaps reinstated after the next
instruction was carried out, namely the transfer of the
plaintiff to
a bed called “cube 3”. The nurse then also recorded
that the doctor had been informed. The
final instruction noted
at that time was that the mother should be put on oxygen.
[35]
There is then no record at all of anything done to or for the
plaintiff or the foetus prior to a report noted in the records
at
07h30, apparently made by a doctor who examined the plaintiff at that
time.
[36]
It appears to me to be clear that monitoring of the condition of the
plaintiff and the baby up to 7:30am fell short of what
was required.
Monitoring was not even done four hourly. That four hour long
intervals were no longer sufficient is
apparent from the instruction
given by the nurse at 00h40 that the patient should be reassessed in
two hours. It is plain
from the evidence of the obstetricians
that the distressed condition of the baby at and around 6am must have
started earlier on.
No witness was called to offer any
explanation for these defaults, let alone one which could lay the
foundation for an argument
that the apparent defaults were excusable,
and indeed not unreasonable (and accordingly not negligent), because
of any particular
circumstances which were not revealed in evidence
or from the hospital records.
[37]
The note made by the doctor at 07h30 commences with the observation
that the patient had not been reported to the emergency
doctor as
directed at 6am. The doctor recorded that the patient was not
on a CTG but that she was draining meconium stained
liquor grade 3
(the grade apparently indicating the significance of the
phenomenon). Her cervix was only 3cm dilated.
The
membrane was found intact and bulging; the doctor artificially
ruptured the membrane and drained meconium stained liquor.
The
contractions were still mild and the baby had not moved any further
down. The doctor recorded that the CTG (which he
would have
seen in a better condition than we can now) showed decelerations.
He then recorded his plan that there should
be
intrapartum
resuscitation which would, according to Dr McLynn, involve giving the
mother oxygen in order to build up the oxygen deficit or
at least
modify it; and to give intravenous glucose because hypoglycaemia in
association with hypoxia would aggravate damage to
the foetal brain.
But the primary instruction given was “prepare for CS stet”.
The instruction was accordingly
that there should be an emergency
caesarean section.
[38]
The doctor who conducted the examination and signed the report of
07h30 examined the cord to establish whether a prolapse was
the cause
of the condition of distress, and established that it was not.
He endorsed the CTG which had been terminated at
06h05 with the
notation “CTG = NR”). Dr McLynn explained that what
that means is that the CTG is non-reactive.
That indicated that
the baby had stopped moving. That is suspicious and abnormal.
In the light of the evidence of the
obstetricians, and in the absence
of evidence from the doctor who attended the plaintiff at 07h30, the
only conclusion reasonably
to be drawn is that what he or she feared
at 07h30 was hypoxic ischemic injury.
[39]
According to Dr McLynn if the instruction to perform an emergency
caesarean section had been followed and implemented correctly,
one
would have expected the baby to be extracted within 45 minutes.
Dr McLynn said that he himself had managed to do it in
20 minutes on
a previous occasion, but regarded 30 to 45 minutes as reasonable in
the circumstances. As far as can be seen
from the hospital
records the plaintiff’s anaesthetic was only administered at
09h10 and the operation commenced at 09h31.
A. was extracted at
09h37. Both obstetricians found that delay quite unacceptable.
Again no witness present on the
day was called to explain what had
happened. The breach of the standard of reasonable care is
again irrefutable and inexcusable;
or if not the latter, unexcused.
In the light of the aforegoing I experience no difficulty in
concluding that the management
of the plaintiff’s labour and
the birth of A. was done negligently in each of the respects
identified above; and logically,
then, in breach of the standard set
by the contract between the plaintiff and the hospital.
Causation
[40]
Professor Buchmann expressed the view that such evidence as is
available to us from the records about the management by the
hospital
of the birth is not inconsistent either with a good or a bad ultimate
outcome. A. could have survived it without
brain damage; but it
could have caused the brain damage which she suffered.
Professor Buchmann expressed the view that
the damage to A.’s
brain could not have occurred in advance of labour. According
to him a prior injury which might
have caused it can be excluded.
His ultimate attitude was expressed in his evidence that there was
evidence of hypoxia; there
was delay; but “out came an okay
baby”. As the parties are in agreement that nothing prior
to the plaintiff’s
admission caused the brain damage, the
question is as to whether the injury occurred during the birth
process or after the hospital
discharged the plaintiff and A..
Counsel for the defendant argues that the plaintiff has not
established that the shortcomings
in the treatment afforded to the
plaintiff caused the damage to A.’s brain.
[41]
The argument advanced by counsel for the defendant for the
proposition that causation was not established in this case is
constructed around a statement in the report of Dr Kara to the effect
that “the pathway from intrapartum hypoxic-ischemic
injury to
subsequent cerebral palsy must progress through neonatal
encephalopathy”. Dr Kara explained that the word
“neonatal” means after delivery, and that a baby not
prematurely born is called a neonate up to 28 days after birth.
The parties were in dispute as to whether there was evidence of
encephalopathy.
[42]
A.’s condition, cerebral palsy, is a permanent and
non-progressive injury which occurs in an infant that has not reached
maturity. Cerebral palsy is unique to children. Once the
injury occurs it does not get worse, but neither can it get
better.
Hypoxic injury, and in particular intrapartum hypoxic injury, is one
of the possible causes of cerebral palsy.
[43]
Dr Kara explained that when a baby is born it is “scored”
in order to determine whether it needs intervention or
resuscitation
on delivery. The scoring system produces what is called an
“Apgar Score”. I do not propose
to dwell on the
Apgar Score as a prominent feature of the enquiry into whether A.’s
condition at birth evidences neonatal
encephalopathy because
ultimately the witnesses agreed that the assessment is subjective and
not a particularly reliable indicator
for the enquiry in which we are
presently involved, unless something very obvious was observed.
But I think it needs to be
mentioned that two different Apgar Scores
are evident from the records, one noted as 6 and 7 and the other as 7
and 9 (on a scale
where the higher score is better). The
hospital record headed “Record of Neonate” presents
scores of 7 and 9.
The score appears on a form which makes
provision for a specific assessment (on a scale of nought to two) of
each of five factors,
namely heart rate, respiration, muscle tone,
response to nasal catheter and colour. None of those
assessments are actually
recorded in the space provided for the
exercise. (The score of 7 and 9 appears to have been made by a
nurse.) The score
of 6 and 7 appears to have been made by the
doctor who delivered the baby. The nurse who scored A. at 7 and
9 nevertheless
recorded her condition as “fair”. In
another record the nurse recorded the following concerning A..
“Condition
of baby looks fairly ill”. Dr Kara’s
evidence was that a baby who is considered only to be in a fair
condition,
or considered to be fairly ill, would not achieve those
Apgar Scores. The record also shows that A. had meconium Grade
3
and had to be suctioned to clear meconium aspiration. A baby
in that condition could not achieve an Apgar Score of 7 and 9.
[44]
This is a convenient point at which to consider what the plaintiff
herself had to say about the period which followed A.’s
birth.
She was awake and was able to see what was going on when the baby was
removed. The baby was taken to “another
place”.
It had not yet cried. After what she described as a long time
the plaintiff heard the baby crying at
that other place. She
described the crying as that of a tired baby. At some stage the
baby was brought back and shown
to her after which it was taken
away. To the plaintiff the baby appeared to be tired.
[45]
The plaintiff was then taken to her ward. Whilst she was there
she saw other people’s children being brought in,
but not
hers. She thinks it was on the second day that she heard an
announcement that people with babies in the nursery should
go there.
She decided to go but her name was not called out. But on the
third day she went to the nursery and she saw
her baby being kept “in
some container of sorts”. The day before, when she was
not allowed to approach the child,
she had seen pipes and the like on
the baby in the container. On this, the third day, the baby
still appeared to her to be
tired. The plaintiff said she was
confused. She had no explanation as to what was going on.
On the third day
many of the pipes that had been attached were
removed. The one which remained behind was a pipe going through
the nostrils,
which presumably was the oxygen. When asked to
describe what she meant by describing her baby as “tired”
the
plaintiff said the difference between her baby and the rest was
that the others were awake whilst hers was not. The rest were
active and crying, but not hers.
[46]
At a certain stage the plaintiff tried to breast feed the baby.
But it could not suck. It was fed instead with
a little cup
into which the plaintiff expressed breast milk. She fed the
baby in this manner until she left the hospital.
When she got
home the baby could still not suck. She did the same thing that
she had done in hospital, using a cup.
On the seventh day after
the birth she bought a bottle, and managed to use it after she had
enlarged the hole in the teat.
That for the plaintiff was what
she described as a “little victory”
[47]
The plaintiff then took A. to the clinic on a regular basis.
She received her inoculations and reports were made concerning
her
condition and her weight, and so on. The records on A.’s
health chart indicate that she received the required
inoculations in
April, May, June and July 2010 and in January and then October 2011.
It eventually became apparent that she
was not a well child.
When she was nine months old questions were raised as to the
condition of her eyes. She was recommended
for a doctor’s
assessment and opinion when she was a year old. She had a tight
chest. She was a reluctant feeder
and vomited frequently.
The nurse noted that A. looked lethargic and drowsy. In July
2011, at the age of 15 months,
she was assessed at a genetic clinic.
Her present condition was ultimately diagnosed and observed.
[48]
The plaintiff herself said that at a certain stage at home she
observed that the baby had something in the nature of a fit.
Although the event scared her the baby recovered. It is not
clear when exactly this occurred, although it was probably when
A.
was around 3 months old.
[49]
Dr Kara took into account what the plaintiff had to say and drew the
conclusion that there is evidence of neonatal encephalopathy.
Counsel for the defendant argued that the plaintiff’s evidence
is “to say the least” unreliable. I have
already
concluded that her evidence of times when things occurred in advance
of the birth of the child is unreliable. However,
I see no
reason to regard her evidence as to what occurred after the child was
born, until the two were discharged from hospital,
and what followed
in the aftermath, as unreliable. I found the plaintiff to be a
satisfactory witness. I did not get
the impression that she
exaggerated anything. I got the impression that she was a
responsible person and a responsible mother.
The records of her
attendance at the clinic both before and after the birth of A.
suggest that if anything had happened later in
A.’s life to
cause an injury to her brain resulting her present condition, it
would be surprising to find that the plaintiff
had not observed the
event. When it was suggested to Dr Kara in cross-examination
that an event which occurred post-discharge
could have caused the
injury to A.’s brain, he found great difficulty in accepting
that proposition. A minor fit, even
one lasting 10 or 15
minutes, could not have caused the injury, according to Dr Kara.
It is an hypoxic ischemic injury.
It can only occur if there is
circulatory collapse. One would then expect a record of the
baby’s admission to hospital
and a record of the baby being
resuscitated. There are no records of that type. Dr
Kara’s view is that
it would be unlikely that a baby suffering
such an event after birth would survive without medical
intervention. It strikes
me as improbable that anything like
that could have happened to the knowledge of the plaintiff without
the plaintiff seeking medical
help immediately. If anything
like that occurred without her knowledge, then on Dr Kara’s
evidence the question which
arises immediately is how A. survived it
without medical intervention.
[50]
Much of the debate over the question as to whether A. displayed
neonatal encephalopathy centred around the hospital records.
They were far from perfect. They record respiratory distress,
initial feeding problems and, on occasions, that the baby looks
dull
or ill. But there is no record of the observation of a
prominent event, significant with respect to the condition of
A.’s
central nervous system, which everyone would agree to be undoubtedly
evidence of neonatal encephalopathy.
[51]
As I understood Dr Naidoo’s evidence, the only phenomenon she
chose to refer to as a positive indicator of an intact
central
nervous system was the existence of a sucking reflex of the type
which, she said, is required before A. would have been
discharged.
She drew the conclusion from the decision to discharge A. that a
sucking reflex of the type sufficient to accomplish
breast feeding
must have been in place in order to justify the discharge of the
baby. She sought thereby to contradict the
plaintiff’s
statement that such an ability to suck was not present. The
difficulty is that with the best will in the
world one cannot
approach Dr Naidoo’s evidence upon the basis that she ran a
facility where no baby could fall through the
cracks The
records relevant to this case do not support a conclusion that this
was a hospital providing a flawless
service. Going along with
Dr Naidoo’s postulation that the baby’s discharge
evidences the fact that it had an
adequate suck, at least by the
fifth day of her life, entails rejecting the plaintiff’s
evidence on this crucial issue, which
is the only direct evidence led
on the subject. If the defendant had chosen to call
at least some of the members
of the staff responsible for the
neonatal records, that may perhaps have lent some support to what Dr
Naidoo was trying to achieve;
namely acceptance of the proposition
that because the rule is that a baby should not be discharged if an
adequate suck for feeding
has not been established, the fact that the
baby’s discharge was authorised is sufficient evidence that an
adequate suck
had been achieved.
[52]
The neonatal records relating to A. do not record the occurrence of
any fits of the kind which evidence neonatal encephalopathy
suffered
as a result of an hypoxic ischemic injury during the birth process.
Dr Naidoo described the sort of thing which
will be observed if such
fits or seizures are occurring. The examples she gave were
excessive blinking; or an impression
that the baby is staring; or
high pitched crying; or a rowing movement of the limbs; or lip
smacking which she described as pursing
of the lips. These
phenomena she described as subtle, and she made the point that if
they are not treated or attended to
they might last for 30 seconds
before they “self-abort”. Dr Naidoo conceded that
if such seizures had occurred
during the first days of A.’s
life it is not impossible that they were missed.
[53]
Dr Kara is very experienced in his field. His qualifications
were not challenged. In the end his view was that
as long as
one takes into account the plaintiff’s own evidence, the
conclusion he must draw as a medical expert is that the
existence of
neonatal encephalopathy is not discounted by the content of such
hospital records as are available. But, on
the other hand, his
view is that the mother’s evidence and the hospital records
together do not establish the existence of
neonatal encephalopathy.
It was quite apparent, though, that for a number of reasons Dr Kara
experienced some difficulty
adopting this balanced view of the
available evidence. Firstly, he agreed with Professor Buchmann
that nothing which happened
in advance of the plaintiff’s
admission to the hospital caused the injury sustained by A.’s
brain. Secondly,
although he felt himself bound to defer to the
opinions of the obstetricians, it was obvious that his own view of
the record of
the birth was that it showed every sign of a course of
events consistent with hypoxic ischemic injury. Thirdly,
insofar as
an assessment of the injury itself is concerned, Dr Kara
was able to exclude a number of other potential causes of cerebral
palsy
(a subject on which he was not challenged). Finally, and
deferring to the opinions of expert radiologists, Dr Kara was firmly
of the view that the visible damage to A.’s brain was of a kind
which he would regard as typical of that suffered when a
baby suffers
a prolonged partial hypoxic ischemic injury in the course of labour.
In the end the evidence of both Dr McLynn
and Professor Buchmann
supported Dr Kara’s concerns about what happened during the
birth process. Nevertheless, given
Dr Kara’s acceptance
of the proposition that despite his concerns, the mother’s
evidence and the hospital records on
their own do not prove neonatal
encephalopathy, the evidence of Professor Lotz, the radiologist,
becomes crucial.
[54]
Professor Lotz’s qualifications were not challenged. I
think it appropriate to make brief mention of some of his
background
set out in detail in his curriculum vitae. He qualified as a
doctor in 1972 and after achieving a Master of Medicine
in diagnostic
radiology (cum laude) in 1980 he was registered as a fellow of the
College of Radiology of South Africa. In
1982 he became a
fellow of the Royal College of Radiology (London). He practised
as a specialist radiologist from January
1981. He has taught
and practised widely, not only in South Africa. From 2007 to
date Professor Lotz has specialised
in the medico legal assessment of
MRI features of hypoxic ischemic injury in pre-term and term
infants. He has been involved
in international correspondence
with leading experts in the field of such injury in infants, and has
compiled a database of more
than 500 cases of hypoxic ischemic
injury. He assumes that the database he has compiled is
one of the largest in the
world. He has supported research into
the field by affording prospective PhD candidates access to the
database. He
has furnished expert opinions in an estimated 250
cases of either concluded or still continuing civil actions relating
to hypoxic
ischemic injury in neonates.
[55]
An MRI scan was taken of A.’s brain in 2015. His
testimony relates to the conclusions which can (and in his opinion
must) be drawn from the scan.
[56]
Professor Lotz’s evidence concerns a highly specialised area of
the radiologist’s discipline. In giving evidence
he
stressed the complex nature of the human brain. The
complexities of the subject which he was asked to address in evidence
would, it seems to me, have been beyond the comprehension of a lay
judge. Fortunately, because no expert in the field was
called
by the defendant to contradict Professor Lotz, and because such
cross-examination as he was subjected to did not challenge
any of the
scientific propositions which are the foundation of the opinions he
expressed, there is no need for me to concern myself
with any issue
as to whether the science behind Professor Lotz’s opinions is
correct or reliable.
[57]
Professor Lotz found it necessary to use a series of slides in order
to render accessible to a lay person his explanation for
the
conclusions he draws from the MRI scan of A.’s brain.
That series of slides, including the relevant image of A.’s
brain and the injury to it, are part of the record of the case.
I intend no criticism of Professor Lotz in saying that I
do not think
he could have explained what the court had to understand without
those slides; that is to say in words alone.
If he could not do
it, it goes without saying that neither can I. I must confine myself
to a brief account of what Professor Lotz
had to say, sufficient, one
hopes, to justify the conclusion I have reached concerning its impact
on this case.
[58]
The deepest part of the brain is called the reptilian brain. In
the evolution of the human brain it is the most primitive
portion of
the brain, but it contains all the vital centres. By “vital
centres” is meant those portions of the
brain the operation of
which is necessary to sustain basic life. Nature has ordained
that the time and process of birth is
one of the most dangerous times
of life. A. was a term baby. Unlike a baby that is born
prematurely, she had reached (and
on the evidence passed) the time at
which she ought to have been born. In preparation for the life
threatening process of
natural birth, the human brain in the term
infant is automatically programmed to protect the life centre lodged
in the reptilian
brain. This programme prefers the reptilian
brain above the later-developed (in the evolutionary sense) mammalian
and human
brain. Professor Lotz called this “programme”
the auto-regulatory mechanism of blood distribution. In the
event
of partial hypoxia-ischemia this auto-regulatory mechanism will
redistribute blood from the superficial hemispheres of the brain
to
the deeper central nuclei to protect the life centres; which of
course involves a sacrifice in the areas of the brain which
are
deprived of a full supply of blood and oxygen. (This may occur,
for instance as indicated in the example given in one
of Professor
Lotz’s slides, because a partial placental abruption results in
a decrease in blood pressure and accordingly
a decrease in the supply
of blood and decrease in the amount of oxygen in the blood.) If
the event is not partial, but what
is called “acute profound”,
there is not enough time for this redirection of blood and the
results are catastrophic.
The injury we are concerned with is
the prolonged partial hypoxic-ischemic type which allows time for the
redistribution of blood
supply dictated by the auto-regulatory
mechanism in place in the term infant. It involves a growing
crisis over a period
of time, and as the threat to the life centre
increases, more blood is shunted from what Professor Lotz calls the
superficial human
brain to the reptilian brain.
[59]
There are three different arterial supplies of blood to the brain
called the anterior, middle and posterior cerebral arteries.
The last mentioned provides the circulation for the reptilian brain;
and the auto-regulatory system favours the maintenance of
that blood
supply in the event of a partial hypoxic-ischemic event. The
injury to the brain caused in the case of a partial
hypoxic-ischemic
event during birth occurs primarily at the junctions of the three
areas of the brain served by the three arteries
mentioned above.
These are the areas of the brain which first sacrifice blood and
oxygen in order to preserve the life of
the infant. Professor
Lotz called that phenomenon the “watershed infarction”.
A watershed infarction generates
a particular pattern of injury which
is found in the scan of the brain of a person who has suffered such
an event at the time of
birth. The extent of the injury, and
indeed the occurrence of injury beyond those watershed areas, depends
on the intensity
and duration of the hypoxic-ischemic event.
[60]
The pattern of injury is the hallmark of brain injury caused by a
prolonged partial hypoxic-ischemic event during birth, because
once
the baby is born and lives, the programme naturally in place for the
protection of the reptilian brain during the time of
birth is
altered. Professor Lotz is uncertain about the time it takes
for this alteration in the auto-regulatory mechanism
to change to the
one with which humans live after birth. He said it may be
a matter of hours or a matter of days, but
not a matter of weeks.
Once that change has taken place an event which causes a diminution
in the supply of oxygenated blood
to the brain will cause a pattern
of brain injury completely different to the one which occurs at
birth. The reptilian brain
no longer enjoys preference.
[61]
It is the opinion of Professor Lotz that the scan of A.’s brain
provides a more perfect example of the pattern of injury
discussed by
him than the one used in the set of slides he produced for the
purpose of conveying his opinion in evidence.
[62]
Cross-examination of Professor Lotz achieved nothing but more clarity
about the certainty of his opinion. Counsel
for the
defendant did not have the benefit of any witness they proposed to
call to contradict what Professor Lotz had to say.
It was
suggested to Professor Lotz that perhaps his evidence or opinion is
of lesser value because the scan was taken of A.’s
brain when
she was already five years old. His answer to that was that the
brain injury caused at birth, once it has settled,
never changes; if
a similar scan is taken of A.’s brain when she is 70 years of
age the picture will be exactly the same
as it was at 5 years of age.
[63]
Both Professor Buchmann and Dr Naidoo, when they gave evidence, were
asked to comment on what Professor Lotz had to say.
(Of course,
that was done appreciating that radiology was not their speciality.)
Neither of them could offer any response
which devalued the
contribution of the un-contradicted evidence of Professor Lotz to the
consideration of the question as to whether,
as a matter of
probability, the damage to A.’s brain, and her cerebral palsy,
was caused by the negligent defaults of the
defendant’s staff
at the hospital in the provision of proper care and treatment during
the plaintiff’s labour and A.’s
birth.
[64]
I found Professor Lotz’s evidence compelling and logical.
Professor Buchmann conceded that the available evidence
of the
management of A.’s birth is at least consistent with the
proposition that the distress which occurred reflected the
injury to
her brain. I accept Dr Kara’s view that a fair evaluation
of the medical records and the evidence of the
plaintiff herself
concerning A.’s condition at and after birth, seen in
isolation, may not establish, but does not discount,
the existence
of neonatal encephalopathy. To the extent that Dr Naidoo at the
end of her evidence may have continued
to advance the case that her
hospital records, and the customary quality of treatment she believed
must have been provided for
A., discount the possibility of neonatal
encephalopathy, I find her views unconvincing.
[65]
I have accordingly reached the conclusion that the defendant’s
staff at the hospital who were charged with the duty of
caring for
the plaintiff and A.’s birth failed to deliver the standard of
care promised by the admitted contract, that their
conduct was
negligent, and that it is established on a balance of probabilities
that those defaults caused the injury to A.’s
brain and her
most unfortunate current condition.
[66]
Counsel for the plaintiff provided a draft order which they submitted
should be made in the event of me reaching this conclusion.
Two
aspects of the draft order (the scale of costs and the question of
costs incurred in respect of a witness not called) were
canvassed in
the course of argument, but otherwise counsel for the defendant had
no objection to the manner in which the order
was formulated. I
will accordingly follow it.
I
make the following order.
1.
It is declared that the
defendant is liable to compensate the plaintiff in her capacity as
parent and natural guardian of her minor
child, A. H., a girl born on
[...] April 2010 for all damages it is proved that the plaintiff in
her said capacity and the minor
child suffered or in the future will
suffer in consequence of the brain injury sustained by the child at
the time of her birth
at Prince Mshiyeni Memorial Hospital.
2.
The defendant is ordered to pay
the plaintiff’s costs to date, such costs to include:
(a)
the costs of two counsel,
including the costs of their preparation for the trial and their
preparation for the resumption of the
part-heard trial and for their
consultations with the expert witnesses named below and with the
plaintiff;
(b)
the costs of plaintiff’s
attorney attending upon consultations with the expert witnesses who
are named below;
(c)
the costs of obtaining an MRI
scan and report in respect of the minor child including the costs of
the anaesthetist and hospital
fees that were necessary to obtain the
said MRI scan;
(d)
all reserved costs including
the cost of junior counsel in having the matter certified ready for
trial;
(e)
the qualifying fees of the
expert witnesses who are listed below, including the costs of the
preparation of their medico-legal reports,
the costs of qualifying
themselves to testify as expert witnesses at the trial, in respect of
the expert witnesses who testified,
and the cost of their attendances
at consultations with the plaintiff’s attorney and counsel and
as determined by the taxing
master as well as attendance fees for the
days on which they attended the trial, and, in relation to Prof Lotz
the reasonable airfare
and travelling costs for him to travel from
Cape Town to Pietermaritzburg to testify at the trial on 23 May 2017;
the said experts
being:
(i)
Dr Y Kara;
(ii)
Dr DM McLynn;
(iii)
Prof JW Lotz
_______________
OLSEN J
Date of Hearing: WEDNESDAY, 20 APRIL
2016
to
FRIDAY, 22 APRIL 2016
and from
MONDAY, 22 MAY 2017
to
MONDAY,
29 MAY 2017
Date
of Judgment: THURSDAY, 24 AUGUST 2017
For
the Plaintiff : MR M PILLEMER SC with MR B BEDDERSON
Instructed by: FRIEDMAN &
ASSOCIATES
44
ST ANDREWS DRIVE
DURBAN
NORTH…DURBAN
(REF.:
Ms B Balwanth/AS/03/S828/00
(TEL
: 031 – 564 8043)
c/o
AUSTEN SMITH
Pietermaritzburg
(REF.:
CC Smythe/rb/Q2/F0296/14)
(TEL
: 033 – 392 0500
For the Defendant : MR V NAIDOO SC
with MR M CHETTY
Instructed by: STATE ATTORNEY
(KWAZULU-NATAL)
6
TH
FLOOR, METROPOLITAN LIFE BUILDING
391
SMITH STREET….DURBAN
(REF.:
24/004466/14/S/P18 – Mr Ngubane/spm)
(TEL.:
031 – 365 2530)
c/o
CAJEE SETSUBI CHETTY INC.
PIETERMARITZBURG
(REF.:
Mr Essa)
(TEL.:
033 – 345 6719)