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[2017] ZAKZDHC 12
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T.S and Another v Life Healthcare Group (Pty) Ltd and Another (10227/2014) [2017] ZAKZDHC 12; 2017 (4) SA 580 (KZD) (20 March 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL, LOCAL
DIVISION, DURBAN
REPORTABLE
CASE
NO:
10227/2014
In
the matter between:
T.
S.
First
Plaintiff
M.
S.
Second
Plaintiff
and
LIFE
HEALTHCARE GROUP (PTY) LTD
First
Defendant
DR
ABDOOL SAMAD
SULIMAN
Second
Defendant
Order:
The first defendant’s claim against the second defendant
is dismissed with costs, including the costs of senior counsel.
JUDGMENT
Delivered
on: 20 March 2017
PLOOS
VAN AMSTEL J
[1]
The plaintiffs in this matter are the parents of a child who was born
on 12 July 2008 in the Crompton Hospital in Pinetown,
owned by Life
Healthcare Group, which is the first defendant. The second defendant,
Dr Suliman, is the specialist obstetrician
and gynaecologist who
attended to his birth. I shall refer to them as the hospital and Dr
Suliman respectively where it is convenient
to do so. The child
suffered birth asphyxia while his mother was in labour, as a result
of which he developed cerebral palsy. This
led to a claim for damages
by his parents in their personal capacities and on his behalf,
against the defendants jointly and severally.
In addition the first
defendant issued a notice in terms of rule 13 of the Uniform Rules,
in which it sought a contribution from
the second defendant in terms
of the provisions of the Apportionment of Damages Act 34 of 1956 (the
Act). The issues relating to
liability and the quantum of damages
have been settled as between the plaintiffs and the defendants. The
settlement agreement,
in the form of correspondence between the
parties’ respective attorneys, forms part of the second
defendant’s trial
bundle and records that the issue of
liability (negligence and causation) was settled on the basis that
the defendants undertook,
jointly and severally, to pay to the
plaintiffs a sum of R20 million. It also records that the offer was
made without admission
of negligence, breach of contract or liability
on the part of the defendants. The plaintiffs played no part in the
proceedings
before me, which concerned the apportionment of liability
as between the defendants pursuant to the third party notice.
[2]
The hospital accepts that there was negligence on the part of its
nursing staff. Dr Suliman denies that he was negligent and
says he
settled the issues relating to liability and the quantum of damages
without any admission that he had been negligent. He
contends that
the hospital is not entitled to a contribution from him and, in the
alternative, contends for an apportionment in
his favour.
[3]
I deal firstly with the facts, which were mostly undisputed. Mrs S.
was 29 years old when she fell pregnant for the first time
in 2007.
She went into labour at about 10 pm on 11 July 2008 and went to the
Kwadabeka Community Health Centre, where an early
latent phase of the
first stage of labour was diagnosed. The following morning she
requested a transfer to the Crompton Hospital.
She was admitted there
at 10 am. On examination the foetal head was found to be 5/5
[1]
,
which was very high, and the cervix 2 cm dilated. Her
obstetrician-gynaecologist, Dr Maise, was not available, but had
arranged
with Dr Suliman to cover for him. The hospital had obviously
been informed of this arrangement as the nursing staff informed Dr
Suliman telephonically, at about 10.30 am, of Mrs S.’s
admission and her condition. In the course of this conversation Dr
Suliman instructed Sister Savage, a midwife, to allow the labour to
proceed and to sedate the patient if necessary. He prescribed
Pethidine
[2]
and Aterax
[3]
for this purpose.
[4]
At about 2.30 pm the patient was 4 cm dilated and requested pain
relief. She was given the medication which Dr Suliman had prescribed
telephonically. The foetal heart rate was monitored by means of
cardiotocography (CTG), which records the beats per minute as well
as
the contractions. At about 6.35 pm Sister Savage telephoned Dr
Suliman, who had by then not seen or met the patient. She reported
to
him that the patient was 4 cm dilated with the head 3/5 above the
pelvic brim. She also reported a deceleration of the foetal
heart
rate, as recorded by the CTG, at the height of a contraction, which
she said recovered quickly. He ordered that the patient
be
transferred to the labour room, that her membranes be ruptured, that
arrangements be made for an epidural
[4]
and that a further report
be made to him at 8 pm. A second deceleration at about 6.40 pm, when
the heart rate went down to 90 beats
per minute, was overlooked by
the nursing staff and not reported to him, although it was recorded
by the CTG. At about 7.30 pm
the cervix was 7-8 cm dilated and well
effaced. The contractions were strong at 3 per minute, and Dr Suliman
was informed. A further
deceleration at about 7.40 pm was not
reported to him. At about 9 pm he was informed that the patient was
fully dilated. He arrived
at the hospital at about 9.20 pm and did a
vaginal examination. This was the first time for him to see the
patient. The cervix
was fully dilated but the foetal head was still
2/5 above the pelvic brim. When he looked at the CTG graphs he
realised that the
baby had been in distress for some time and had to
be delivered as a matter of urgency. He asked for the vacuum, which
is an instrument
that is applied to the baby’s head in order to
assist in getting it out. The nurse, who was Sister Kuzwayo, could at
first
not find it . When she eventually produced the vacuum it became
apparent that she did not know how to use it. Dr Suliman could not
apply it on his own as two people were required to do so. He asked
for a forceps and again the nurse could at first not find it.
Dr
Suliman said this delayed the birth of the baby by another twenty or
twenty five minutes. At about 10.10 pm he performed
an
episiotomy
[5]
and the baby was born.
[5]
The baby was in a very poor condition and later developed cerebral
palsy. An MRI
[6]
of the brain was
performed on 30 October 2009 and revealed the after effects of
perinatal hypoxic
[7]
ischaemic encephalopathy
of a full term infant. The significance of the reference to a full
term infant is that the insult to the
brain occurred when the foetus
was full term, in other words during labour.
[6]
It was common cause that the foetus was distressed while the mother
was in labour. The cause of the distress is not known, although
Dr
Van Helsdingen thought the rapid rate of dilatation and the powerful
contractions over a period of two and a half hours could
have been
the cause. The hospital accepts that there were warning signs on the
CTG which should have been recognised by its nursing
staff and that
the deprivation of oxygen could have been prevented by delivering the
baby by way of an emergency caesarean section.
[7]
The basis on which the hospital seeks a contribution from Dr Suliman
is that he and the hospital are jointly and severally liable
in
delict to the plaintiffs and that they are joint wrongdoers as
contemplated in the Act. In terms of section 2(12) read with
section
2(6) (a) it seeks to recover from him a contribution in respect of
his responsibility for such damage of such an amount
as the court may
deem just and equitable having regard to the degree in which he was
at fault in relation to the damage suffered
by the plaintiffs and to
the damages awarded.
[8]
The relationship between a doctor and his patient is usually
contractual. The doctor undertakes to treat the patient with the
required degree of skill and care, and the patient undertakes to pay
his fees. These terms are probably seldom, if ever, agreed
expressly,
but those are the obligations that flow out of this kind of contract.
In addition to the contractual duty to exercise
the required degree
of care and skill, the law also imposes such a duty on the doctor,
with the result that if he fails in that
duty he can be sued either
in contract or in delict. In other words, he has a contractual
obligation not to be negligent, and he
also has a legal duty,
independent of the contract, not to be negligent.
[8]
By way of example, where the patient was at all times unconscious and
unable to conclude a contract, the doctor will nevertheless
be under
a legal duty not to be negligent where he has accepted responsibility
for treating the patient. It is in the delictual
context that the
hospital contends that Dr Suliman owed the patient a legal duty and
was negligent, and is liable for a contribution
in terms of the Act.
[9]
I turn to consider the position of the doctor. The main submission on
his behalf was that he owed the patient no legal duty
until he
arrived at the hospital as until then there was no doctor-patient
relationship between them. He contends that Dr Maise
was the
patient’s obstetrician and that he was merely covering for him
in the event of an emergency or imminent delivery.
He also denies
that he was negligent, and in the event that it is found that he was,
he denies that any negligence on his part
was causally related to the
injury to the baby.
[10]
In the light of the covering arrangement to which I have referred
there was much debate before me as to when Dr Suliman’s
legal
duty to the patient arose and what this duty required of him. The
context of this is the requirement of wrongfulness in our
law of
delict.
[11]
Before I consider the issue relating to wrongfulness, or a legal duty
as it is sometimes referred to, a brief reference to
the pleadings is
required. In the annexure to the third party notice, in which the
hospital sought a contribution from the doctor,
it was averred that
Dr Suliman was the obstetrician whose duty it was to deliver the baby
and that he accordingly owed the plaintiffs
and their unborn child a
duty to exercise such care and skill as could reasonably be expected
of a competent and experienced obstetrician
and without negligence.
[12]
He denied these averments in his plea to the third party notice and
pleaded that the mother was not his patient, but that of
Dr Maise,
for whom he had agreed to cover for a few hours. He averred that he
attended to the delivery of the baby and accepted
that in doing so he
was required to exercise the required degree of skill and care, but
denied that he had been negligent. He also
denied that he was under
any obligation to attend to the mother in the hospital earlier than
he did, which was when the delivery
was imminent.
[13]
In argument before me, and in his heads of argument, counsel for the
doctor submitted that no doctor/patient relationship existed
between
the doctor and the mother until he arrived at the hospital to attend
to the delivery of her baby. He also contended, with
reference to a
number of American cases, that in the absence of a contractual
doctor/patient relationship, there is no legal duty
on a doctor which
can give rise to liability on his part for harm suffered by a person.
It is not clear to me that the American
cases go that far. In
Holland
St John MD v Pope and Pope
[9]
,
a decision of the Supreme Court of Texas, a physician who was on call
was telephoned at home by a doctor in the emergency room
at a
hospital. Having listened to the information provided to him
telephonically the physician recommended that the patient be
transferred to a different hospital as he did not have the required
skill in neurology or neurosurgery. It later transpired that
the
patient had meningitis and he sued the physician who had declined to
see him. The claim was dismissed on the basis that there
had been no
doctor/patient relationship. The court said it agreed with a number
of cases where it was held that the duty to treat
the patient with
proper professional skill flows from the consensual relationship
between the patient and physician, and only when
that relationship
exists can there be a breach of a duty resulting in medical
malpractice. It also said that the creation of the
physician/patient
relationship does not require the formalities of a contract, and the
fact that a physician does not deal directly
with a patient does not
necessarily preclude the existence of a physician/patient
relationship. In
Wheeler
and Others v Yettie Kersting Memorial Hospital, Sergio Rodriguez and
Others
,
[10]
a
decision of the Court of Appeals of Texas, Houston (1
st
Dist.), the court said
the question was whether Dr Rodriguez actually rendered services to
Mrs Wheeler, ‘thus establishing
a physician/patient
relationship’. It will be surprising to find anywhere that a
doctor who renders medical services to a
person who arrives at the
hospital in a state of unconsciousness, and therefore cannot conclude
a contract, is not under a legal
duty to exercise the required degree
of care and skill.
[14]
Be that as it may, the test for wrongfulness in our law is different.
It is trite and has been stated in many reported decisions.
The
general norm to be employed in determining whether a particular
infringement of interests is unlawful is the legal convictions
of the
community: the
boni
mores.
It
is an objective test based on the criterion of reasonableness. The
question is whether the community regards a particular act
or form of
conduct as delictually wrongful.
[11]
The
legal convictions of the community must be seen as the legal
convictions of the legal policy makers of the community, such as
the
legislature and judges.
[12]
In
the case of an omission which causes harm to someone the omission
will only be wrongful if in the particular circumstances a
legal duty
rested on the defendant to act positively to prevent harm from
occurring and he failed to comply with that duty. The
question of
whether such a duty existed is answered with reference to the
flexible criterion of the legal convictions of the community
and
legal policy.
[13]
In
Le
Roux v Dey
[14]
the
Constitutional Court said that in the context of the law of delict
the criterion of wrongfulness ultimately depends on a judicial
determination of whether – assuming all the other elements of
delictual liability to be present – it would be reasonable
to
impose liability on a defendant for the damages flowing from specific
conduct; and that the judicial determination of that reasonableness
would in turn depend on considerations of public and legal
policy in accordance with constitutional norms. The Court added
that
what is meant by reasonableness in the context of wrongfulness has
nothing to do with the reasonableness of the defendant’s
conduct, but it concerns the reasonableness of imposing liability on
the defendant for the harm resulting from that conduct.
[15]
In
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
[16]
Harms
JA said conduct is wrongful if public policy considerations demand
that in the circumstances the plaintiff has to be compensated
for the
loss caused by the negligent act or omission of the defendant.
[15]
The test is no different in the case of a doctor, or so-called
medical negligence. It is generally accepted in our law that
a doctor
who manages, treats or performs a procedure on a patient is under an
obligation to do so with the degree of care and skill
that can
reasonably be expected of a doctor in his position. This is so
whether or not there is a contract between them. In
Correira
v Berwind
[17]
the court quoted the
following with approval:
[18]
‘
In the great
majority of cases the duty owed by a medical man or a medical
institution towards the patient is the same whether there
exists a
contract between them or not. Where there is no such contract, a duty
arises by reason of the assumption of responsibility
for the care of
the patient; where there is such a contract, this duty in tort exists
side by side with a similar duty arising
out of the contract. But the
implied contractual duty is normally the same as that which exists
apart from contract’.
[19]
[16]
The question is therefore not whether there was a doctor/patient
relationship between Dr Suliman and the patient. The question
is
whether public policy considerations, as explained in the authorities
to which I have referred, require that Dr Suliman owed
the patient
and her unborn baby a legal duty and whether he should be held liable
to compensate them for the damage caused by negligence
on his part.
Any omission by him at a time when he owed the patient no legal duty
would not have been wrongful and he cannot be
held liable for its
consequences.
[17]
Dr Suliman accepts that he owed the patient a legal duty once he
arrived at the hospital to deal with the delivery. It is necessary
however to determine whether the legal duty existed earlier, at a
time when it is contended that he failed to act as was required
of a
reasonable obstetrician.
[18]
The question when the legal duty arose must be decided in the context
of the relevant facts. The mother was not Dr Suliman’s
patient.
Her obstetrician was Dr Maise, who had asked Dr Suliman to cover for
him. Dr Suliman testified that it is common practice
for an
obstetrician to ask a colleague to cover for him while he is not
available. This is obviously a sensible precaution and
one readily
understands that obstetricians are sometimes not available for
personal or professional reasons. Dr Van Helsdingen,
an experienced
gynaecologist and obstetrician, and academic, who testified on behalf
of the hospital, referred to it as ‘a
very familiar situation’.
[19]
When Dr Suliman was asked to describe how the arrangement worked he
said a colleague would phone and say that he was going
to be
unavailable for a while and ask whether he was available to cover him
in the event ‘of any emergency or any delivery
or anything…’.
On this particular occasion Dr Maise telephoned him and made the
request some time between 9am and
10am.
[20]
The patient was admitted to Crompton Hospital at about 10 am. She had
gone into labour the previous day. A nursing sister
telephoned
Dr Suliman at about 10.30 am and informed him of the patient’s
admission. He knew that she was not his patient
and that the hospital
had phoned him because he was covering for Dr Maise. He instructed
the nurse to allow the labour to proceed
and to sedate the patient if
necessary. He prescribed the medication required for this. It was
common cause before me that at no
stage during that day was there any
indication to Dr Suliman that Dr Maise had become available again.
The nurse phoned again at
about 6.35 pm and reported to him on the
progress of the labour. Again he gave telephonic instructions
regarding the management
of the patient. This happened again at about
8pm.
[21]
Dr Van Helsdingen testified that in his view and in his experience,
where an obstetrician covers for a colleague in respect
of a pregnant
patient, it is the responsibility of the covering doctor to look
after the patient as if she is his own patient.
He is, as Dr Van
Helsdingen put it, ‘100 percent responsible for the care of the
patient’. I think it is no exaggeration
to say that Dr Van
Helsdingen was horrified by the suggestion that the covering doctor’s
duty to take care of the patient
only arises when he arrives at the
hospital.
[22]
It is of course for the court to decide whether a legal duty existed
at the relevant time, although the opinion of medical
experts, such
as Dr Van Helsdingen, as to what is regarded as proper and reasonable
in the medical profession may be helpful in
this regard.
[23]
This is not a case of a doctor who declined to treat a patient. It
seems plain to me that by giving the nurse the telephonic
instruction
at 10.30 am Dr Suliman accepted the mother as his patient for as long
as this was required, and a legal duty arose
to manage her, the
labour process, the unborn child and the delivery for as long as he
covered for Dr Maise. I do not agree with
the submission that Dr
Suliman was doing no more than monitoring the situation in order to
determine whether an emergency had developed.
The process of labour
is inherently dangerous and calls for expert monitoring and
management of both mother and foetus. The implication
of the case
sought to be made by Dr Suliman is that during the process of labour
there was no obstetrician who had the responsibility
of managing the
patient and her unborn child. Dr Maise was not available and Dr
Suliman was not obliged or willing to do anything
until an emergency
developed or the delivery was imminent. I am satisfied that in those
circumstances considerations of reasonableness
and public policy
require that the doctor should be held liable for the consequences of
any negligent omissions on his part. He
in other words had a legal
duty to exercise the required degree of care and skill, and that duty
arose at the latest at 10.30 am
when he was informed of the patient’s
admission and gave telephonic instructions to the nursing staff with
regard to her
care.
[24]
This brings me to the question of negligence. With regard to what is
reasonably expected of an obstetrician who has been informed
that a
patient who is in labour has been admitted to hospital, Dr Van
Helsdingen said even in the case of a low risk patient he
has to see
her at least twice during the active phase of labour, and is required
to verify that everything is well. One assumes
that he also has to
assess whether the patient is in fact a low risk patient. He said no
reasonable obstetrician will leave the
patient entirely in the hands
of the nursing staff until the baby is about to be born. Dr Suliman
confirmed that he would normally
go and see his own patient within
three or four hours after admission. His explanation as to why he did
not see the first plaintiff
in the hospital while she was in labour
was unacceptable. He said he did not want to interfere with the
personal relationship that
existed between the patient and her own
obstetrician as this could cause anxiety on her part, and he did not
want there to be a
discrepancy between his management of the patient
and that of Dr Maise. The alternative of no obstetrician examining
and managing
her while she was in labour was unreasonable and not in
her interest or that of her unborn baby.
[25]
An instrument known as a cardiotocograph was used by the nursing
staff to monitor the regularity and duration of the patient’s
contractions, and the foetal heart rate. Dr Van Helsdingen explained
that one does not only look at the rate of the foetal heart,
but also
the baseline variability, which reduces when the foetus is not
getting enough oxygen. One also has to look for decelerations
in the
heart rate and their relationship with the mother’s
contractions. He said it is common knowledge that the interpretation
of CTG graphs is fraught with interpersonal and intrapersonal
variability because the valuation is not always easy. They are
controversial
and 60 % of positive CTG’s are false positives.
An average obstetrician is expected to have a reasonably good insight
as
to what is a normal or abnormal CTG. It is also expected of a
nursing sister to know when a CTG is abnormal, but they are not
expected
to be able to diagnose what the cause of the abnormality is.
[26]
Dr Van Helsdingen said if non-reassuring decelerations are detected
the reasonable obstetrician would stay with the patient
for the next
couple of hours and see what sort of pattern develops. His main
criticism of Dr Suliman was that by the time the nurse
phoned him at
about 6.30 pm the patient had been in the hospital for about eight
and a half hours and had not been seen by a doctor.
It was her first
pregnancy and he would have expected Dr Suliman to go the hospital
within an hour or so after this call and verify
for himself that
everything was in order. This was also Dr Harris’ view. An
important point made by Dr Van Helsdingen is
that CTG tracings should
not be looked at in isolation. They must be considered in the context
of the progress of the labour. He
said Dr Suliman should have gone to
see the patient within an hour or so to satisfy himself that the
information given to him by
the nursing staff was correct and to
verify for himself that everything was in order. He said an early
visit to see the patient
would have alerted Dr Suliman to the high
head, which made her a high risk patient which required a frequent
and vigilant observation.
This underlines why an obstetrician who has
not seen a patient who was admitted eight and a half hours earlier,
cannot sit at home
and judge the situation simply on what the nursing
staff reports telephonically about the CTG readings. Dr Suliman
accepted in
his evidence that a reasonable obstetrician will not rely
exclusively on the midwife. He said if the patient had been his he
would
have gone to check for himself. The reason he did not go was
that he regarded her as Dr Maise’s patient.
[27]
This was a serious lapse which fell short of the degree of care and
expertise that was expected of him as a specialist obstetrician.
He
was accordingly negligent.
[28]
To summarise thus far, in my view Dr Suliman owed the patient a legal
duty as a specialist obstetrician from the time that
he was notified
of her admission and started to manage her treatment, and he was
negligent in not examining her earlier and verifying
for himself that
everything was in order. It remains to consider the question of
causation.
[29]
Dr Suliman was criticised by the expert witnesses for not having gone
to the hospital earlier to see the patient. She was admitted
at about
10.30 am and it was said that he should have gone to see her within a
few hours after this. The main purpose is to reassure
her and see
that everything is in order. Dr Suliman agreed with this in principle
and said he normally does so in the case of his
own patients. It
however seems clear that had he gone to see Mrs S. within a few hours
of her admission he would have found nothing
untoward.
[30]
During the phone call from Sister Savage at about 6.35 pm he was told
that there had been a deceleration in the foetal heart
rate at the
height of a contraction but that it had recovered quickly. The
experts agreed that this information would not have
been a matter of
concern. Dr Van Helsdingen and Dr Harris said Dr Suliman should
nevertheless have gone to see the patient within
an hour or so after
this phone call, as by then he had not seen her at all.
[31]
If Dr Suliman had done so, he would have arrived at the hospital at
about 7.30 pm. It may be accepted that after an examination
of the
patient and an inspection of the CTG graphs he would have realised
that there was a problem and that an emergency caesarean
section had
to be done. It seems from the evidence that at best this would have
taken 30 minutes, and probably a bit more.
[32]
The question is whether this would have avoided the harm that caused
the cerebral palsy. Dr Van Helsdingen’s evidence
was that he
could not say that the baby would have been saved if it were
delivered by caesarean section at some time between 7.30
and 8 pm. He
also said, in response to a question about causation: ‘I cannot
even begin to answer the question whether that
would have salvaged
the baby and I don’t think anybody can tell you that, M’Lord’.
It was pointed out to Dr Van
Helsdingen by counsel for the hospital
that he and Dr Cronje had stated in a joint minute that it was likely
that the brain damage
had occurred after 8 pm or perhaps after 9 pm.
When he was asked whether there was a specific reason for that
opinion his answer
was: ‘No, I don’t think there is, it
is almost impossible to estimate how long it takes it depends on the
degree of
hypoxia. I think it was estimated on the basis of what the
CTG picture showed after 20:00’.
[33]
It is trite that a court cannot simply accept the say so of an expert
who expresses an opinion on a matter within his field
of expertise.
The court must consider whether it can safely accept the opinion and
it will have regard to whether the opinion appears
to be reasonable
and logical and what the reasons for it are. The opinion expressed in
the joint minute that the damage probably
occurred after 8 pm and
perhaps 9 pm was not supported by reasons and appears to have been no
more than an estimate based on the
CTG graphs after 8 pm. What in
those graphs supported the estimate was not explained. And when Dr
Van Helsdingen was asked whether
there was a specific reason for the
opinion he said he did not think so. He was very clear in saying that
he could not say when
the brain damage occurred or whether the baby
would have been saved by a caesarean section at about 8 pm. He said
it was possible
that by then the Rubicon had been crossed. It is true
that Dr Suliman did not contend that a caesarean section at 8 pm
would have
been too late, but I think it is clear that he simply did
not know.
[34]
The onus to prove a causal link between Dr Suliman’s negligence
and the cerebral palsy suffered by the baby was on the
hospital. This
had to be established on a balance of probabilities. In this case it
had to be shown that if Dr Suliman had gone
to the hospital an hour
after the 6.35 pm phone call, as the experts said a reasonable
obstetrician would have done, the baby would
not have suffered
cerebral palsy. In the light of the evidence of Dr Van Helsdingen I
agree with counsel for the doctor that this
was not established on a
balance of probabilities.
[35]
I find therefore that Dr Suliman was negligent and in breach of his
legal duty to the patient by not exercising the required
degree of
care, but I am unable to find that had he acted as it is said he
should have, the tragic outcome would have been avoided.
[36]
The first defendant’s claim against the second defendant is
dismissed with costs, including the costs of senior counsel.
________________
Ploos
van Amstel J
Appearances:
For
the First Defendant
:
B A Acker SC
Instructed
by
: Norton Rose
Fulbright South Africa Inc.
Durban
For
the Second Respondents
:
O A Moosa SC
Instructed
by
:
Pather &
Pather Attorneys Inc.
Date
Judgment Reserved
: 13
February 2017
Date
of Judgment
: 20
March 2017
[1]
This is a reference to how many fingers the head was above the
pelvic brim.
[2]
A painkiller and sedative.
[3]
For nausea.
[4]
A form of anaesthesia, administered by an anaesthetist.
[5]
Cutting the outlet of the vagina so as to facilitate the birth of
the child.
[6]
Magnetic resonance imaging.
[7]
The deprivation of oxygen before it was born.
[8]
Correira v Berwind
1986 (4) SA 60
(ZHC)
[9]
901 S.W.2d 420 (1995)
[10]
866 S.W.2d 32 (1993)
[11]
Neethling, Potgieter, Visser, Law of Delict, 6
th
ed, p36-41 and the cases
cited there.
[12]
Ibid. p42
[13]
Ibid. p57
[14]
Le Roux
and Others v Dey (Freedom of Expression Institute and Restorative
Justice Centre As Amici Curiae)
2011
(3) SA 274
(CC) para [122].
[15]
Also see
Gouda
Boerdery BK v Transnet
2005
(5) SA 490
(SCA) par [12] and [13].
[16]
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 13.
[17]
Correira v Berwind
1986 (4) SA 60
(ZHC) at 63H.
[18]
Lord Nathan, Medical Negligence, p15.
[19]
Also see The Law of South Africa, 2
nd
ed, Volume 17 Part 2,
par 30.