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[2016] ZAKZPHC 27
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Madida obo S.S.M v MEC for Health for the Province of KwaZulu-Natal (14275/2014) [2016] ZAKZPHC 27 (14 March 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE
NO: 14275/2014
DATE:
14 MARCH 2016
In
the matter between:
NOMPUMELELO
POLITE
MADIDA
............................................................................
APPLICANT
(OBO
[S…….] [S……..] [M……..])
And
THE
MEC FOR HEALTH FOR THE
PROVINCE
OF
KWA-ZULU-NATAL
...........................................................................
DEFENDANT
ORDER
[1] The
defendant is liable to pay the plaintiff for such damages as she is
able to prove in due course.
[2]
The defendant is ordered to pay the
plaintiff’s costs to date (including the costs of the formal
application for the adjournment
of the trial) on the scale as between
party and party; such costs to include,
inter
alia
:
a.
The costs of both senior and junior
counsel, including their fees for preparation for the trial, the
opposed application and for
consulting with the expert witnesses Dr
Kara and Dr McLynn.
b.
The costs of the MRI scan including the
costs of Dr Misser to prepare his report, the anaesthetist and
hospital fees that were necessary
to obtain the MRI scan.
c.
The qualifying fees of the expert witnesses
Dr Y Kara (specialist paediatrician) and Dr D McLynn (obstetrician
and gynaecologist),
including the costs of preparation of their
medico-legal reports, the costs of qualifying themselves to testify
at the trial, the
costs of their attendance at consultations with the
Plaintiff’s attorney and counsel and their reservation fees as
determined
by the taxing master, namely:
[3]
All costs shall be payable within
fourteen days of the taxation by the Registrar and Taxing Master of
this court or within fourteen
days of agreeing them.
JUDGMENT
Date of hearing: 24-25 February 2016
Date of judgment: 14 March 2016
D. Pillay J
Introduction
[1]
[S……..], born on 29 January
2009 has spastic quadriplegic cerebral palsy, epilepsy, scoliosis,
chest deformity poor
cognitive ability, feeding difficulty and no
hand function. Her young mother the plaintiff instituted an action
for her for damages
arising allegedly from medical negligence of
employees of the defendant, the Member of the Executive Council for
the Province of
KwaZulu-Natal (Health). On the morning of the trial
the defendant applied formally to adjourn the trial set down for
three days.
The plaintiff opposed the application. In Part A of my
judgment I give reasons for refusing the adjournment. In Part B I
determine
negligence and liability for damages.
Part A:
Application for adjournment
[2]
The basis for the adjournment was that the
defendant did not have the complete medical records of the plaintiff.
It was submitted
that the defendant was unable to respond in any way
to the plaintiff’s claim without its medical experts having
expressed
their opinions on the complete medical records.
[3]
In support of the application the defendant
relied on the affidavits of Ms Kim Donnelly and Stuart Clive Chambers
who are officials
from the Legal Services Unit in the Provincial
Department of Health. Much of Mr Chambers’ affidavit is devoted
to setting
out the plaintiff’s case. He also acknowledged that
it was the plaintiff who gave the state attorney a bundle of the
defendant’s
records. He omitted to mention that they were given
on 14 April 2014 and that they covered the relevant period of labour
and birth
of [S……..]. In October 2015 the
defendant’s representatives were furnished with another
incomplete set
of hospital and medical records at the consultation
held at Eshowe Hospital the very institution whence this claim
arises.
[4]
Notwithstanding its acquiescence in
securing preferential trial dates it occurred to the defendant’s
representatives on a
date not disclosed in Mr Chambers affidavit that
given the lateness of the defendant’s own discovery the
defendant’s
experts had not had an opportunity to examine its
discovered hospital and medical records. Having seen the hospital
records and
the reports from the plaintiff’s experts the
defendant’s experts recommended that [S……] be
assessed to
determine the nature of the disability, that a
radiologists opinion be obtained as well as an MRI scan, despite the
plaintiff having
already supplied the defendant with an MRI and her
expert’s report. An obstetric opinion was also recommended on
the standard
of medical care and whether or not the defendant was
negligent. Once these reports were available the defendant and its
experts
would have been in a better position to assess the merits of
the plaintiff’s claim. Otherwise the defendant was not able to
make such an assessment.
[5]
The defendant had inadequate time to
investigate the merits of the plaintiff’s claim. Crucially it
needed experts to comment
on the opinion of the plaintiff’s
experts. Experts also had to attend to preparing joint minutes.
Counsel for the defendant
Adv J Singh was unable to inform the court
as to what the basis of the defence was without the experts’
reports.
[6]
Ms Donnelly started emailing the Chief
Executive Officer of Eshowe hospital and the uThungulu District
manager from 12 November
2015 to obtain the complete hospital
records. She received no response right up to 27 January 2016 when
she instructed the state
attorney to apply for the adjournment. They
finally received the complete records on 9 February 2016.
[7]
The plaintiff’s attorneys contended
that the original records have at all times been at Eshowe Hospital
under the control
and administration of the defendant. Hence the
defendant had access to these records at all times and was free to
uplift them from
Eshowe Hospital.
[8]
In reply Mr Chambers acknowledged on behalf
of the defendant that the records were ordinarily in the possession
of Eshowe Hospital
but that the applicant was unable to obtain them
timeously as was apparent from the numerous correspondence from Ms
Donnelly to
the hospital. Mr Chambers continued in reply to point out
that the defendant is dealing with public health and public funds and
that there are limited resources, which require responsible handling.
Hence whenever the question of liability arises expert evidence
is
necessary to inform the defendant’s decision as to whether to
concede the question of liability.
[9]
I refused the application for adjournment
for the following reasons:
The defendant
cannot be heard to say that it did not have medical and hospital
records of which its employees were custodians. It
is not as if the
medical records were held by the plaintiff or some other person. They
were the defendant’s own records.
The defendant weakened its
own position by failing to avail the records on time to its own team.
[10]
In terms of
ss 13
and
17
of the
National
Health Act 61 of 2003
the defendant’s
employees have a statutory duty to preserve and protect such hospital
and medical records. Failure to do so
opens the defendant’s
employees to criminal prosecution
and liable on conviction to
a fine or to imprisonment for a period not exceeding one year or to
both such fine and imprisonment
.
[11]
The Health Professions Council’s
Guidelines on the keeping of patient records dated May 2008 applies
to health care practitioners
in both the private and public service.
It identifies what constitutes health records, why documents or
materials should be retained
and what information is compulsory for
recording.
[1]
[2]
It prohibits alteration of records and requires reasons for any
amendments to be specified on the record.
[3]
Errors may be corrected but the date of the change must be entered
and the correction signed in full. The original record must
remain
intact and fully legible.
[4]
Additional entries at a later date must be dated and signed in full.
The guidelines also provide for the retention of health records,
which must be stored in a safe place and if stored electronically
then safeguarded by passwords. In the case of minors their records
must be kept until the minor’s twenty-first birthday. For
mentally incompetent patients the records must be kept for the
duration of the patient’s life. Health records kept in a
provincial hospital or clinic including the records of minors and
mentally incompetent patients may only be destroyed with the
authority of the Deputy Director General concerned.
[5]
[12]
I have detailed the
National Health Act and
Guidelines to emphasise their importance and the rationale and
seriousness with which the health professions view the keeping of
patients’ records. So when they are not available when they
should be there is potentially a breach of a rule of law and
codes of
good practice. Non-compliance with statutory requirements and codes
of good practice that impact directly on the health
of members of the
public is cause on its own to refuse the adjournment. To do otherwise
would lead to the mistaken inference that
the court is prepared to
condone or tolerate the illegality. The lack of a bona fide
explanation for the unavailability of the
records fortifies my
opinion.
[13]
No affidavit by the custodian(s)
accompanies the application. Neither Mr Chambers nor Ms
Donnelly was a custodian of the medical
and hospital records of
Eshowe Hospital. They cannot explain why the custodians of the
records at Eshowe Hospital were unable or
unwilling to hand over the
records to them. Were they lost? Were they misfiled? Did anyone even
attempt to look for them? These
are questions for which the
defendant’s managers must find answers in order to not only
succeed in the application for an
adjournment but also to hold public
officials accountable to do the job they are meant to do. How else
does one begin to fix the
recurring and costly problem of missing
records if one cannot unravel why they are missing or unavailable?
[14]
The custodians are the persons who should
have knowledge of the records. They must explain what happened to
them, why they were
not made available to the defendant’s Legal
Services Unit as soon as possible after the plaintiff instituted
proceedings
and at the latest when the defendant requested them, and
why they failed to respond to the numerous correspondence from the
Legal
Services Unit. It could not be that the records were not
available because the defendant had given the bulk of the reports to
the
plaintiff. The plaintiff relied on them to issue summons. The
lack of an explanation from the custodians was another ground
sufficient
on its own to dismiss the application. But there is more.
[15]
Ironically it is the plaintiff who gave the
defendant’s representatives copies of defendant’s own
records. She did so
on no less than on two occasions: once on 14
April 2015 and again on 7 October 2015. Therefore the defendant had
the bulk of the
records upon which the plaintiff’s claim was
founded as early as April 2015. Albeit they were incomplete they were
sufficient
for the plaintiff’s purpose of formulating her
action. The subsequently produced records included the CTG during
labour (which,
as will be seen, supported the plaintiff) and the
treatment of [S……] after birth which was not
particularly material.
[16]
In her letter of demand dated 25 September
2014 the plaintiff pinned her case to the negligence of the
defendant’s employees
for the medical services they rendered
from the time she was admitted to the delivery of [S……]
between 28 and 29
January 2009. The defendant had the most relevant
records on the basis of which its experts could have formulated a
view as to
whether the defendant was negligent during that period. In
fact its experts had to formulate a view on the same records that the
plaintiff relied on in order to participate meaningfully in any
debate to determine the merits of the plaintiff’s claim.
Quite
literally, without a view on the same records the defendant would
not, to use a cliché, ‘be on the same page’
as the
plaintiff and the court hearing her claim. That is not to say that
additional records would not be relevant. It simply means
that the
defendant must formulate a view as to whether the plaintiff is able
to discharge her onus based on the records she relied
on. If she did
not that would be the end of the matter. If she did then the search
for additional information becomes essential.
[17]
It surprised me therefore that the
defendant’s representatives were able to deliver a plea without
its medical records. To
my repeated questions to Adv Singh as to what
her client’s defence was I received no coherent answer other
than that the
plea was a bare denial because the defendant had not
obtained opinions from its experts.
[18]
Experts express opinions after the fact
once all the evidence is gathered. The starting point to establish
the facts as to what
transpired during the crucial hours between
labour and delivery of [S……] had to be the medical
personnel directly
involved in rendering the services at that time.
The crux of the case is whether a doctor was called. This was an
elementary enquiry
that should easily have been established by the
hospital personnel who attended to the plaintiff. It implicated a
material fact
that the plaintiff had to prove if the defendant
disputed her version that no doctor attended to her at crucial times
during labour
and delivery.
[19]
Instead in its plea the defendant noted the
facts that the plaintiff pleaded in paragraph 8 of her particulars of
claim, which were
extracted from the defendant’s records from
the plaintiff’s admission to the hospital at 11h00 on 28
January 2009.
It also noted that [S…….] was diagnosed
with hypoxic ischaemic encephalopathy (HIE) grade 2/3 and neonatal
convulsions
probably as a result of birth asphyxia. But it denied any
knowledge as to the cause of these consequences. It also had no
knowledge
as to whether its hospital personnel were negligent in any
of the ways contended for by the plaintiff. Disconcertingly the
defendant
had no knowledge as to whether nursing staff reported
foetal compromise to a doctor and whether a doctor was ever called to
attend
to the plaintiff during what the plaintiff contended was a
difficult delivery. It pleaded no facts about what protocols if any
the staff did implement.
[20]
To plead ‘no knowledge’ and to
put the plaintiff to the proof of facts that should be easily
ascertainable was not a
plea in good faith. It is hardly the response
of a caring health service. Proof as to whether a medical doctor had
attended to
the plaintiff had to come from the hospital staff on duty
at the time and from their records. As far as the plaintiff was
concerned
no doctor attended to her at the crucial stages of labour.
[21]
The defendant had indicated its intention
to engage its experts on several occasions. It offered no explanation
as to why it did
not do so timeously. At the
rule 37
conference
on 28 July 2015 the defendant represented by Adv Singh undertook to
revert about whether the defendant would engage
its own experts. The
defendant neither reverted nor signed the conference minutes, which
the plaintiff eventually filed in court
unsigned. On both occasions
when the defendant’s representatives received the records from
the plaintiff the defendant did
not say that the records were
inadequate or that it was unable to proceed without complete records.
On the contrary the state attorney
responded on 8 October 2015 that
he was consulting with witnesses on 13 October 2015 and would revert
by the end of October to
the plaintiff’s attorneys. When the
plaintiff’s attorney received no response she enquired on 23
November 2015 whether
the defendant had intended instructing experts
as the trial dates were close. She also requested proper compliance
with
rule 36(2)
relating to possible examinations of [S…….]
and
rule 36(9)(a)
in respect of experts. Still the defendant failed
to comply. To date the court has no explanation as to why the
defendant failed
to engage its experts timeously or at all.
[22]
The defendant cannot be heard to say that
it did not have sufficient time to prepare for trial. Mr
Chambers had agreed with
the plaintiff that the matter was ripe for
trial. The plaintiff applied for and secured preferential trial dates
without opposition
because the claimant is a child.
[23]
The following chronology is a
self-explanatory basis for refusing the adjournment. The plaintiff
delivered a letter of demand on
the defendant on 30 September 2014.
On 15 October 2014 the plaintiff served summons on the defendant. On
26 November 2014 Ms Donnelly
instructed the state attorney Mr Kunene.
Notwithstanding the plea falling due twenty days later, four months
after the summons
was delivered the state attorney requested on 17
February 2015 a three-week indulgence to deliver its plea. Despite a
further four-week
indulgence the state attorney had not delivered the
plea by 16 March 2015. The defendant had to be compelled to plead by
a notice
of bar. The defendant delivered its plea without having
sight of its own medical records.
[24]
On 14 April 2015 the plaintiff delivered a
bundle of the defendant’s hospital records on which it relied
to allege negligence
on the part of the defendant’s employees.
At a
rule 37
conference held on 20 July 2015 the defendant indicated
that it would revert as to whether it intended to engage its own
experts.
[25]
On 1 September 2015 the plaintiff invited
the defendant to concede negligence and liability as [S…..]
was in immediate need
of physiotherapy, occupational therapy and
speech therapy and such costs had already been incurred. Furthermore
[S.…..]
also needed to consult with an orthopaedic surgeon to
investigate a possible dislocation of her hip.
[26]
At a
rule 37
(8) conference convened on 11
September 2015 the court by consent certified the matter ready for
trial on the issue of negligence
and liability with quantum being
held over for determination at a later date. Three days were
allocated for trial by consent.
[27]
On 1 October 2015 Mr Kunene and Ms Donnelly
were advised of the trial dates. On 2 October 2015 they asked the
plaintiff’s
representatives for medical records of the
plaintiff to enable them to consult experts with a view to
determining whether liability
should be conceded. Seemingly Ms
Donnelly had not received the records and reports previously
delivered on 14 April 2015. Furthermore,
a copy of the compact disc
of the MRI scan had been sent to the state attorney’s offices
on 2 September 2015. Nevertheless
the plaintiff’s attorneys
emailed the hospital records to Ms Donnelly again on 7 October 2015.
[28]
On the same day the plaintiff’s
attorneys advised Mr Kunene and Ms Donnelly that they had not
responded to the
rule 37
minute; they had undertaken to do so within
two months from 28 July 2015. On 8 October 2015 the state attorney
enclosed the signed
minutes and advised that it was consulting with
its witnesses on 13 October 2015 and would revert by the end of
October.
[29]
On 23 November 2015 the plaintiff’s
attorneys reminded the state attorney Ms Naidoo and Ms Donnelly that
the defendant had
not responded about its intensions to instruct
experts. The plaintiff’s attorney also enquired whether they
had received
the CD of the MRI scan.
[30]
On 4 December 2015 the defendant abandoned
its special plea and indicated its intention to engage the services
of a gynaecologist,
a neonatal paediatrician and a specialist
radiologist as experts. Mr Kunene undertook to provide their reports
within the time
limits prescribed by the rules.
[31]
On 7 January 2016 the plaintiff applied to
compel the defendant to respond to outstanding pre-trial issues. The
court ordered the
defendant to pay the costs of that application. On
30 November 2015 Mr Kunene had asked to have [S……]
assessed on
13 January 2016. The plaintiff acquiesced but requested a
notice in terms of
rule 36(2).
The plaintiff received no response. By
20 January 2016 the plaintiff’s attorneys reminded Mr Kunene,
Ms Naidoo and Ms Donnelly
that they had not received the
rule 36(2)
notice to have [S……] examined on 13 January 2016. The
plaintiff was emphatic that no adjournment would be entertained
as a
consequence.
[32]
On 3 February 2016 the defendant’s
representatives were again reminded that they had the CD of the MRI,
that no arrangements
had been made for [S……] to be
examined on 13 January and of its undertaking to deliver its reports
within prescribed
time limits. Again the plaintiff emphasised that no
adjournment would be granted.
[33]
On 3 February 2016 Mr Kunene informed the
plaintiff’s attorneys that the defendant had additional
hospital records. As at
4 February 2016 despite several requests Mr
Kunene had not delivered these to the plaintiff’s attorneys.
About 8 February
2016 the defendant’s representatives arranged
to have the medical records from Eshowe hospital that were given to
defendant’s
counsel during her consultation there to be
delivered to the plaintiff’s attorneys. Eventually the
plaintiff’s attorneys
arranged to have them collected from the
defendant’s counsel on 9 February 2016. Mr Kunene advised that
because he had now
found further records he required an adjournment
for an opportunity to assess [S……] on 17 February 2016
barely a
week before the trial. The plaintiff refused to adjourn the
matter.
[34]
The plaintiff’s attorneys arranged
for Dr Y Kara the paediatrician and Dr D.M McLynn the obstetrician
gynaecologist to report
on the additional hospital records. They were
able to do so in good time to avoid an adjournment.
[35]
The defendant applied formally for a
postponement of the trial on 16 February 2016.
[36]
The defendant is entitled to seek whatever
advice or opinions it needs to arrive at its decision. However it is
unreasonable to
seek expert evidence only at the time of trial and
not when the demand is made or even by the time a plea has to be
delivered.
Manifestly the earliest assessment of liability will avoid
the escalating costs of litigation involving two counsel, four
experts,
huge bundles of pleadings, several pre-trial conferences at
the end of which the defendant still remains unprepared for trial as
in this case.
[37]
The application for a postponement might
well have been for a short duration. The plaintiff might well have
taken five years to
launch the action as submitted for the defendant.
Although her reasons for doing so are not before me it is not hard to
fathom
why an indigent single mother with a child with severe
disabilities would delay litigation. In contrast the defendant is not
similarly
disadvantaged. It has not demonstrated any reasons why the
hospital records could not be found, why it could not have proceeded
with the copies of its own records furnished by the plaintiff and be
ready for trial within two years from receiving the letter
of demand.
[38]
It is also not open to the defendant to
object as it does to the delivery of further expert reports based on
the supplementary hospital
records it supplied because they are late
when it is in fact the defendant who delivered them late. That would
be the plaintiff’s
call. But she is prepared to press on with
the trial.
[39]
A postponement is an indulgence granted or
refused in the exercise of judicial discretion. Also weighing heavily
against the defendant
is the overriding consideration that at issue
is the rights of a child which, constitutionally speaking, are
paramount. The
defendant has not shown any good cause for the
adjournment.
[40]
The defendant tendered to pay the
plaintiff’s costs occasioned by the adjournment on a party and
party basis and the costs
of reserving six experts. The plaintiff
claimed:
a.
costs of two counsel including their fees
for preparation for trial and consulting three experts and their fees
for the first day
of the trial,
b.
the costs of the plaintiff’s attorney
attending consultations with the expert witnesses,
c.
the trial reservation fees in the amount of
R15 000.00 each for three expert witnesses,
d.
the costs of counsels’ fees to be
assessed by the society of advocates and to be payable within
fourteen days,
e.
the attorney’s costs to be paid
within fourteen days,
f.
and all remaining costs to be paid on
taxation.
[41]
If the court had granted the postponement
it would have had to award most of these costs to the plaintiff.
Otherwise as a student
in her third year of study she would have had
to bear them personally if she did not recover them from the
defendant.
[42]
The tender was for payment of costs from
public coffers. It was not accompanied by any explanation as to
whether the custodian of
the records had been identified, held
accountable for the wastage of public funds, and whether the
defendant was implementing remedial
measures institutionally to hold
those responsible for delays and transgressions accountable. The
defendant already had an order
for costs for non-compliance with
pre-trial procedures. In these circumstances to award another huge
amount again as wasted costs
arising from an adjournment would have
been an unconscionable imposition on the fiscus.
[43]
For these reasons I dismissed the
application for the adjournment but reserved costs.
Part B:
The Trial
[44]
The trial commenced after I dismissed the
application for an adjournment and continued the following morning.
The following morning
the defendant instructed senior counsel from
Durban to travel to Pietermaritzburg to inform the court that it
intended to note
an appeal when the court gives its reasons for
refusing the application for the adjournment on some future date. It
was incomprehensible
to me as to why such costs at the expense of the
fiscus had to be incurred when Ms Singh who was still on record could
have communicated
this information to the court. Besides, without
reasons being furnished the defendant could not properly note an
appeal. Furthermore,
the defendant had yet to formulate its view on
liability, which if conceded, would dispense with any appeal against
my refusal
of the adjournment. After informing the court
of the defendant’s intention its legal team withdrew from the
proceedings.
The trial proceeded and was concluded in the absence of
representation for the defendant
Dr D.M
McLynn
[45]
The first witness for the plaintiff Dr D.M
McLynn a specialist obstetrician and gynaecologist took the court
through his report
based on the hospital records and interview with
the plaintiff. He outlined generally how maternity units operate
before delving
into the specifics of the plaintiff’s case.
Generally a hospital’s maternity unit has a senior midwife in
charge, a
senior doctor, specialist or experienced obstetrician and a
number of midwives. On admission the patient’s antenatal card
would inform the midwife of the patient’s complaints and
obstetric history. The midwife would conduct a basic obstetric
examination of the patient’s abdomen to ascertain the
presentation of the baby, the level of the baby’s head above
the pelvic brim and whether the patient is having labour
contractions. Depending on the clinical status of the patient the
midwife
would execute a plan of action. If there are complications
she would request an obstetric and medical assessment. Observing
these
protocols, which enable abnormal labour to be sifted out from
normal labour are ‘extremely important’.
[6]
[46]
Once in the labour ward a partogram system
of observation enables regular examination and charts the progress of
labour. If the
labour is not progressing normally then the
obstetrician on duty has to supervise the management of the patient
and intervene at
his or her discretion. If the labour is progressing
normally then the attending midwife supervises the management of the
patient.
These are standard protocols that generally are observed.
[47]
Dr McLynn had regard to a bundle of the
Eshowe Hospital records relating to the pregnancy and postpartum care
of the plaintiff,
some paediatric documentation relating to [S…….],
the medico-legal report of Professor Nolte, the nursing expert and
a
statement by the plaintiff. He found the entries from the midwives to
be adequate but the medical obstetric patient records were
minimal
and incomplete. For the first stage of labour he drew on the
following entries made by the nursing and the midwifery staff:
[48]
On 28 January 2009 the plaintiff was
admitted at 11h20 complaining of labour pains, which had started at
08h00. A midwife assessed
her and authorised her admission to a ward
for a
cardiotocography
(CTG).
A CTG
is equipment used to monitor both the foetal heart and the
contractions of the uterus for early detection of foetal distress.
Dr
McLynn had no copies of the CTG when he prepared his initial report.
[49]
The plaintiff was at the time of her
confinement a primagravida, that is a first pregnancy; she was also a
teenager of short stature.
He measured her height as 1,44 m.
Each of these three features on their own increase
the risk of complications and the presence of all three significantly
increase
the risk. Thus the plaintiff presented as a high risk labour
which could lead to complications. The possibility of complications
became clearer as her labour progressed over twenty hours and ten
minutes before she delivered her baby. The midwifery and obstetrical
staff at the hospital should have been aware of these risks and paid
specific attention to the probability of positional labour
complications that did arise in this case. But they failed to observe
these standard protocols.
[50]
At 14h30 the plaintiff complained of labour
pains again. Her mild contractions were palpable. The nursing plan
was to review the
plaintiff in four hours; in the meantime she was
urged to walk up and down the ward to encourage the foetus to
position itself
for birth.
[51]
The nursing staff did not call for a
doctor. Eshowe Hospital is large enough to have a dedicated
medical officer on call.
Usually doctors on call go on rounds
about every four hours. In the management of the plaintiff between
11h10 and 14h30 Dr McLynn’s
only criticism of the medical
services rendered to the plaintiff was that the midwife had failed to
call the medical officer to
assess the plaintiff, who was a high risk
pregnancy, to decide how the labour would be managed going forward.
[52]
At 20h00 labour was progressing well and
the clinical notes indicated that the plan was to reassess the
plaintiff in two hours.
Two hours later the plaintiff experienced
strong contractions and she was transferred to the labour ward for
further management
of active labour.
[53]
At 22h00 the medical records show that both
the maternal and foetal conditions were good and the labour
progressed well. The enduring
concern for Dr McLynn remained the
initial observation of the high risk factors. She was diagnosed as a
right occipito-posterior
position,
meaning that the back of
baby's head was against the plaintiff’s back.
From
this position
the top of the head would enter or try to enter
the pelvis first instead of the circle of the crown, which molds more
easily.
Furthermore a posterior head circumference is larger
than the anterior head circumference. Typically
a
right occipito-posterior position
c
auses
long delays in the first and the second stages of labour, as happened
in this instance. As a foetal malposition that could
lead to
adverse maternal and neonatal consequences
standard
protocols required medical intervention, more so on account of the
plaintiff’s pre-existing condition as a primagravida
teenager
of short stature. Instead, the plaintiff was left to allow labour to
take its natural course between 22h00 and 03h00.
[54]
At 23h00 on examination in the labour ward
a nurse recorded ‘monitor foetal maternal condition half
hourly’ and ‘report
abnormalities to MO’. If such a
report was made, there is no record of it.
[55]
At 2h00 the plaintiff was 9cms fully
dilated with a posterior occipital lie resulting in excessive caput
(that is swelling due to
injury to the brain hitting against the
pelvic tissue), moulding and foetal distress. At this point, if not
before, the baby should
have been delivered.
[56]
At 3h00 an hour and ten minutes prior to
delivery she was given intrapartum resuscitation or oxygen. From
this Dr McLynn inferred
that the staff were ‘well aware’
that the foetus was distressed. Some damage might already have
occurred. Still
nursing staff failed to call the obstetrician
on duty as standard operating procedures required them to do. The
doctor would then
have had to decide on the best mode of delivery of
the baby either through caesarean section or assistance via suction
or forceps.
This was not a decision for the nursing staff.
[57]
An occipito-posterior foetal position is a
normal occurrence. Usually midwifes would wait for the foetal head to
rotate and descend
into the perineum before the patient starts
pushing. In this instance the baby’s head did not rotate
anteriorly. The plaintiff
testified that the midwife applied fundal
pressure in the second stage of labour. Applying fundal pressure when
the foetal head
had not descended into the perineum ran the risk of
(further) injury to the foetus as the baby’s soft head pressed
against
the mother’s bony pelvis. This was dangerous for both
the plaintiff and her baby.
[58]
For the last four hours of her labour she
was on continuous CGT. The CTG records reflect accelerated
contractions of the plaintiff
and heightened foetal heart rate for a
prolonged period until delivery at 04h10. As the plaintiff’s
contractions increased
the foetal heart rate also increased. Normally
over ten minutes there should have been three to four contractions;
however the
plaintiff was having eight to nine contractions. The
uterus had been over stimulated from quiescent to active. From this
Dr McLynn
deduced that the plaintiff might have been given drugs to
accelerate the contractions. There is no record of any drugs being
given
to the plaintiff. The accelerated contraction did not allow the
child’s heart rate to recover between contractions. As a result
of the accelerated heart rate the foetus developed an oxygen deficit.
Reduced oxygen supplied to the foetal brain over a prolonged
period
resulted in hypoxic ischemic
encephalopathy
or brain damage. The foetus was delivered without the assistance of
the obstetrician.
[59]
The Apgar ratings were overestimated. Apgar
the acronym for appearance, pulse, grimace (or reflexes), activity
(or muscle tone)
and respiration, is an assessment of a new born
baby’s physical condition immediately after birth to determine
whether any
additional medical or emergency interventions are need.
For respiration and muscle tone the readings should have been 0
instead
of 1. On a scale of 0-10 the total of 6/10 was an over
estimation considering that the baby started breathing on her own
only after
three minutes. Intubating the baby immediately would have
resuscitated her instantly and prevented the damage that the
three-minute
delay would have caused. But intubation is a procedure
performed by the medical officer. And none was in attendance. The
ischemia
or lack of blood supply to the brain had probably set in six
hours earlier at around 22h00.
[60]
Dr McLynn opined that apart from an early
visit from a doctor the lack of obstetrical intervention at any time
throughout the process
was a failing of the medical staff to do their
jobs properly. If they had been monitoring the situation they would
have noticed
the deficiencies of the midwifery staff in their
handling of the situation. Obstetric intervention at the various
critical stages
would most probably have resulted in the decision to
deliver immediately either by caesarian section or with assistance in
order
to minimize damage to the baby and end the plaintiff’s
predicament of a prolonged and difficult labour. The failure to so
intervene was negligent.
Dr Yatish Kara
[61]
Dr Yatish Kara the specialist paediatrician
who corroborated Dr McLynn in several respects testified as follows:
Generally when
the oxygen and blood supply to the brain is cut off
over a prolonged period then the body resorts to autoregulatory
action to adapt
to or mitigate the adverse effects of an oxygen
deficit to the brain. It enables the limited oxygenated blood to flow
to the vital
part of the brain that sustains life, the basal ganglii
or the ‘primitive centres’ at the expense of the other
areas
in the brain which become starved of oxygen and are damaged.
In contrast, an immediate interruption of supply
does not allow the body to trigger this coping or mitigating
mechanism.
[62]
In this case the MRI scan and the reports
of the radiologists indicate that the brain of the foetus was
deprived of oxygen for a
prolonged period resulting in the partial
prolonged hypoxic ischaemic (oxygen deprivation) injury. This
kind of injury occurs
in a term infant at the time of childbirth.
[63]
Dr Kara concluded that the foetal distress
would have occurred at 2h00 when the plaintiff was 9cm dilated. The
fundal pressure aggravated
the hypoxic ischemic injury. The
encephalopathy or brain damage at birth was sufficient to cause
cerebral palsy. Pointers at the
neonatal stage that is, immediately
post birth, allowed him to conclude that the cerebral palsy was
probably caused by the injury.
For instance [S…….] had
convulsions soon after delivery. She had a poor cry for two weeks,
poor oral feeding for
over a week all of which suggested stage two
encephalopathy, which lasted longer than seven days. He excluded
other possible causes
of intrapartum hypoxic injury such as
meningitis and pre-existing obstetric conditions.
Nothing
suggested a postnatal event that could have caused the hypoxic
injury.
[64]
Furthermore, [S……] was
delivered with a low Apgar score and compromised respiration. The
Apgar score at one minute
recorded her heart rate as over 100, slow
and irregular respiration, her muscle tone showed some flexion, poor
cry and body pinkness.
Like Dr McLynn, Dr Kara also disputed the
correctness of the Apgar score of 6/10 at one minute and 8/10 at five
minutes considering
that the child did not cry at delivery and
breathing had been delayed for three minutes. Essential blood
profiling was not done
at this stage.
[65]
The hospital records of 30 January 2009
show that [S…..’s] neck was hyperextended, poorly
responsive, with her eyes
flicking and she seemed to be fitting. The
diagnosis of HIE with seizures appears on the hospital records. The
following day the
entry in the hospital records reads ‘HIE
grade 2/3, neonatal convulsions, likely birth asphyxia’.
[66]
Dr Kara also criticised the fact that the
first blood sugar test was done three hours after birth and not at
birth. Neither oxygen
saturation nor blood pressure of [S……]
was recorded during neonatal care. Monitoring blood pressure and
blood sugar
was essential to minimise on-going injury in hypoxic
ischemia. The fact that the doctor saw [S…….] eight
hours after
delivery according to the records also concerned him.
[67]
Dr Kara bolstered his opinion by referring
to the work by Volpe (Neurology of the Newborn) who had identified
factors that were
also present in this case and supported his finding
of causation. He also referred to the criteria set by the American
College
of Obstetricians and Gynaecology, which supported his
conclusion that there was sufficient evidence to link the cerebral
palsy
to a hypoxic insult at birth.
The
Plaintiff
[68]
The plaintiff testified and confirmed that
fundal pressure was applied to her. [S……] was
discharged after two weeks.
In the nursery she was on a drip and an
oxygen mask. A hospital physiotherapist informed her that [S……’s]
progress
would be delayed but that the plaintiff had ‘nothing
to worry about’. [S…….] is unable to walk, talk,
crawl or stand. She also cannot see. At 7 years she is still wearing
napkins implying that she has no bowl or bladder control.
She
recognises the plaintiff by her voice. The plaintiff is currently in
her third year of study for an NQF diploma in education
and
development.
[69]
Findings
[70]
The plaintiff has established a causal link
between the medical and hospital services rendered by the employees
of the defendant
and the injuries sustained by [S……]
during birth, the consequences of such injury being HIE. Accordingly
I find that
the defendant is liable for having negligently caused
[S……] to suffer hypoxic ischemic encephalopathy.
Costs
[71]
In awarding the plaintiff the costs of the
application for the adjournment I decline her request that it be on
the scale as between attorney and own client, such
costs to include the costs of experts who did not eventually testify.
I refused
the application and so no trial costs were wasted. As
unreasonable as the conduct of the defendant’s employees was,
any cost
order drains the health budget at the expense of health
services for all. It does not punish the wrong doers. Some
proportionality
has to be maintained in making cost awards in these
cases.
[72]
As for the experts who did not testify Prof
Nolte and Prof Lotz were superfluous; their fees should not be for
the defendant’s
account. Drs McLynn, Kara and Misser who
obtained and reported on the MRI were sufficient to establish the
plaintiff’s claim.
Institutional
Diagnosis, Possible Remedies
[73]
This case is a microcosm of a greater
social phenomenon. It is no secret that with RAF (Road Accident Fund)
cases waning medical
malpractice is the new source of revenue for
enterprising practitioners. Medical malpractice cases now occupy the
space on the
court roll vacated by RAF claims. Whilst RAF cases
generated much abuse by some claimants and the legal, medical and
other professionals
who assisted them, not all practitioners
exploited the system. Many claimants would have been left
destitute without professional
assistance given the statutory regime
that operated at the time. Foreseeably, a similar experience as in
RAF matters could replicate
itself in medical malpractice suits.
And when commercial interests become entrenched change will be harder
to implement,
as the experience in RAF matters shows.
[74]
In another matter against the defendant
[7]
set down for trial two days before this case a child had suffered
brain damage, seizures and was mentally handicapped allegedly
on
account of the medical negligence of the defendant’s employees.
The defendant sought and obtained an adjournment with
an order to pay
huge wasted trial costs because its officials initially deposed to
affidavits stating that they did not have medical
reports only to
discover days before the trial that they did. The defendant’s
counsel had no instructions to explain
to the court how this
catastrophe arose. Hence I directed that the person(s) responsible
should depose to affidavits explaining
how the records were initially
unavailable and then available. The affidavits had to be submitted to
the National Minister of Health
and the defendant for further action,
and copied to the registrar for the court’s information. My
reason for doing so was,
in deference to the separation of powers
principle, to alert the political heads of a chronic administrative
deficit in health
services that is also impacting on the efficiency
of the courts as time is lost in trial matters being adjourned. The
problem of
medical and hospital records being unavailable timeously
or at all is a recurring feature in medical malpractice cases that
result
in adjournments and extraordinary waste of legal and experts’
costs at the expense of the public purse.
[75]
A quick survey of claims against the
defendant enrolled for hearing from August 2015 to February 2016 is
attached as an appendix
to my judgment to give some statistical
support for why medical malpractice is a matter of public interest
law and why we should
all be concerned. The survey reveals the
following:
a.
Fifty-eight (58) matters were set down for
pretrial, trial and/or applications to compel between August 2015 to
February 2016.
b.
Forty-three (43) set-downs were for
applications to compel (discovery, pre-trial information) against the
defendant.
c.
In 10 matters the defendant was ordered to
pay the costs.
d.
Of the 15 set-downs for trial 4 were
adjourned with the defendant paying the costs in all these matters;
in 3 of the 4 the defendant
agreed to or was ordered to pay the whole
or a portion of the plaintiffs’ claims plus costs.
e.
Costs were reserved, not ordered or
undecided in 35 matters.
f.
The defendant was ordered to pay attorney
client costs in 1 matter.
g.
Costs ordered against the defendant
included experts and 2 counsel in 11 matters.
h.
In 10 cases the claimants were born
severely handicapped mentally and physically. These claims range
between R11m and R20m.
i.
In only 1 matter the plaintiff withdrew the
action and tendered the defendant’s costs.
[76]
A disturbingly large number of matters are
postponed with the MEC having to pay costs. It has not been possible
to assess the amount
of costs awarded as the bills are not left in
the court file for taxation. On average plaintiffs engage three
experts and two counsel.
When matters are adjourned with the
defendant having to pay the wasted costs the disbursements alone are
therefore huge.
[77]
Medical malpractice cases against the
defendant are escalating rapidly. A knee jerk dispute resolution
response instead of a problem
solving approach is unlikely to yield
sustainable institutional reform. On the contrary it is likely to
increasingly compromise
the delivery of efficient health services as
the health budget is drained to meet malpractice claims and costs.
[78]
One approach to minimising legal costs and
litigating more efficiently is for either party to initiate a
conference between the
parties and, if necessary, before a judge in
chambers as soon as summons is delivered to identify the issues in
dispute, what needs
to be proved and how that might best be
accomplished. Availability of medical and hospital records and the
possibility of engaging
experts jointly can be canvassed at an early
stage. Unlike traditional commercial litigation medical malpractice
suits is a matter
of public interest law. The approach should as far
as possible be investigative with a view to problem solving. However,
if plaintiffs
make fraudulent claims or the defendant does not plead
in good faith as I have found in this case, the litigation will be
adversarial.
[79]
Although they present as a bipolar dispute
between a plaintiff and a defendant with the remedy being findings on
liability, compensation
and costs the problem of malpractice remains
institutional. Malpractice suits are retroactive in the sense that
they seek to remedy
past wrongs. The litigation resolves the dispute
but not the institutional problems. Remedies that are
forward-looking, that seek
to resolve problems for the future should
be considered for long-term sustainable solutions. The court cannot
initiate such remedies
without the co-operation of the litigants.
[80]
Most
plaintiffs have no capacity or inclination to solve institutional
problems their main aim being limited to resolving their
dispute with
an award of compensation and costs. Practitioners who have vested
commercial interests in malpractice suits have even
less incentive to
participate in fixing the problems. For reasons best known to the
defendant it has not taken the court into its
confidence to disclose
what obstacles it has to overcome to deliver health services
efficiently to avoid malpractice claims. Nor
does it proactively
elicit the court’s intervention by way of say, meaningful
engagement with early court intervention as
suggested above,
structural reform, experimental remedies or similar supervisory or
interventionist remedies to address its problems
institutionally.
Structural reform and some suggest even experimental remedies
[8]
have been issued by the Constitutional Court in the housing cases.
[9]
Defendants who struggle to get their institutions
to comply tend to support experimental remedies.
[10]
In this case the defendant’s Legal Services Unit who struggle
to get the hospital records can benefit from experimentalist
interventions.
[81]
The growth of malpractice suits has been
sudden. It might have caught the defendant unprepared. With the
escalation of claims over
the past five years the problems may seem
overwhelming and insurmountable. These bespoke remedies could assist
in fixing the problems.
But this case shows that they are
fixable if the law is simply obeyed. The challenge then is to
implement measures to ensure that
the law is obeyed.
[82]
In this case the defendant was in a weak
position not because of anything that the plaintiff or her lawyers
did or did not do. It
must be remembered that the plaintiff’s
case was based entirely on the medical facts produced by the
hospital. The defendant’s
case was weak for two reasons both of
which are violations of the rule of law. As sector specific rules
these rules enjoy the support
of the health professions. In the first
instance the duty to keep medical records is a statutory obligation.
The second rule is
the professional protocols that required a medical
officer to attend and manage high risk labour. Both rules and
especially the
rule relating to the keeping of the records are
non-discretionary requiring strict compliance. If management of a
risky labour
is open to the exercise of discretion that discretion
has to be exercised reasonably by the medical officer not the nursing
staff
who are unskilled to manage the kind of life threatening
complications that can and did arise in this case.
[83]
The institutional remedies in this case as
in every case in which medical records are not supplied to persons
authorised to receive
them is obvious: Efficient systems must be in
place for preparing and preserving hospital and medical records in
order to comply
with the
National Health Act and
the Guidelines. This
is a non-negotiable absolute requirement non-compliance with which
will continue to escalate the claims and
costs against the defendant.
Given the instrumentality of this institutional deficit to
malpractice costs, and for no better reason
than that it is the law,
the defendant must look to holding the custodians of the records
personally accountable, if necessary
on pain of discipline, criminal
prosecution or both. Similarly the doctor on duty on the night that
[S…….] was born
has to account for his non-attendance
on the plaintiff at crucial times of her labour.
[84]
Without compliance with these rules the
defendant would not be able to defend itself effectively against
escalating malpractice
claims. Compliance with both rules is
unrelated to either the volume of patients or the number of claims
being lodged. They are
about having efficient systems in place and
law abiding, accountable employees responsive to patient needs.
Order
a.
The
defendant is liable to pay the plaintiff for such damages as she is
able to prove in due course.
b.
The defendant is ordered to pay the
plaintiff’s costs to date (including the costs of the formal
application for the adjournment
of the trial) on the scale as between
party and party; such costs to include,
inter
alia
:
i.
The costs of both senior and junior
counsel, including their fees for preparation for the trial, the
opposed application and for
consulting with the expert witnesses Dr
Kara and Dr McLynn.
ii.
The costs of the MRI scan including the
costs of Dr Misser to prepare his report, the anaesthetist and
hospital fees that were necessary
to obtain the MRI scan.
iii.
The qualifying fees of the expert witnesses
Dr Y Kara (specialist paediatrician) and Dr D McLynn (obstetrician
and gynaecologist),
including the costs of preparation of their
medico-legal reports, the costs of qualifying themselves to testify
at the trial, the
costs of their attendance at consultations with the
Plaintiff’s attorney and counsel and their reservation fees as
determined
by the taxing master, namely:
c.
All costs shall be payable within fourteen
days of the taxation by the Registrar and Taxing Master of this court
or within fourteen
days of agreeing them.
D. Pillay J
APPEARANCES
Counsel for the Plaintiff
: M Pillemer SC, Z Rasool
Instructed by : Friedman &
Associates
Tel: (031) 564 8043
Ref: Ms B Balwanth
Counsel for the Respondent
: J.M Singh,
Instructed by : State
Attorney (KwaZulu-Natal)
Tel: (031) 306 2545
Ref: Mr
B.M Kunene/ju
[1]
Clause 4 of the guidelines
[2]
Clause 2 of the guidelines
[3]
Clause 8 of the guidelines
[4]
Clause 3 of the guidelines
[5]
Clause 9 of the guidelines
[6]
Page 14 of Exhibit D Doctor McLynns report
[7]
P T Seme v MEC Health KZN
Case No
14197/14.
[8]
Woolman,
Stu ‘The Selfless
Constitution- Experimentalism and Flourishing as Foundations of
South Africa’s Basic Law’
(2013) Juta.
[9]
Government of the Republic of South Africa &
others v
Grootboom & others
2001 (1) SA
46
(CC);
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC); and
Occupiers of 51 Olivia Road, Berea Township
and 197 Main Street, Johannesburg v City of Johannesburg &
others
2008 (3) SA 208 (CC).
[10]
Sabel and Simon ‘Destabilization Rights: How
Public Law Litigation Succeeds’ at 1065.