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[2016] ZAKZDHC 5
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A.B.M v Member of the Executive Council for Health KwaZulu Natal (4401/2014) [2016] ZAKZDHC 5 (15 February 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 4401/2014
In
the matter between:
A.
B. M.
PLAINTIFF
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
DEFENDANT
KWAZULU
NATAL
JUDGMENT
DELIVERED
ON:
POYO
DLWATI J:
[1]
On 14 October 2009, A. B. M. (Ms M.), the mother and natural guardian
of A. V. M. (the baby), received the tragic news that
her daughter
was blind as she had developed stage 5 retinopathy of prematurity
(ROP). She believes that the doctors and nurses
at King Edward
Hospital in Durban were negligent in treating her child and are
therefore responsible for her blindness hence this
action. The
parties agreed in terms of Rule 33 (4) that only the issue of
liability be determined at this stage.
[2]
The evidence has established that on 24 May 2009, Ms M., whilst about
28 weeks pregnant, was admitted at King Edward Hospital
in Durban
(the hospital) for premature and prolonged rupture of membranes.
On 27 May 2009 at 19H12 she gave birth to her
baby by caesarean
section. The baby was born prematurely at 28 weeks gestation,
before the 40 weeks gestational period of
a normal baby. She weighed
1.13 kg. She was transferred to the neonatal intensive care
unit as she was distressed at birth
and had to be ventilated.
She suffered from a severe respiratory distress syndrome. She was
given surfactant and intermittent
positive pressure ventilation for
about 48 hours. Thereafter she was taken off the ventilators and was
placed on nasal prong oxygen.
On 1 June 2009 she was transferred to
the high care unit as the ventilators were no longer needed.
[3]
The baby was thereafter dependant on oxygen for about 28 days until
24 June 2009. It is common cause between the parties
that
although the oxygen saturation levels were monitored, they were
consistently high and above the required levels of 92%. During
this
period the baby required additional respiratory support and was
placed on continuous positive airway pressure (CPAP).
She was
also treated for suspected sepsisand received at least two blood
transfusions as she was anaemic. She was also managed
for a suspected
patent ductus arteriosus, a heart congenital abnormality. A cranial
ultrasound of the brain revealed an agenesis
of the corpus callosum.
The CT scan of her brain confirmed that she had colpocephaly which is
a congenital structural abnormality
of the brain.
[4]
On 25 June 2009 Ms M. and the baby were discharged from the
hospital. Both the medical and nursing staff discharge notes
make reference to bookings for various follow up appointments
including ophthalmology at Inkosi Albert Luthuli Central Hospital
for
ROP screening on 29 June 2009, cardiac clinic on 1 July 2009,
audiology clinic on 14 July 2009 and a neonatal follow up on
23 July
2009. On 14 October 2009 the baby was seen by an ophthalmologist, Dr
Visser, the defendant’s expert, at the eye clinic
at Inkosi
Albert Luthuli hospital (Inkosi hospital). She was diagnosed with
bilateral stage 5 ROP. Dr Visser, in his report handed
in by consent
between the parties as exhibit B, commented that the baby was seen
too late by Inkosi hospital and no intervention
could be done. After
some considerable time, Ms M., having tried to seek for answers from
the hospital and the defendant, launched
this action.
[5]
The issue in this matter is whether the blindness of the baby was
caused by the negligent conduct of the medical and nursing
staff at
the hospital during their treatment and care of the baby. Central to
this enquiry is whether the oxygen saturation levels
that were
administered to the baby were within the acceptable levels of 86% -
92% as prescribed by the National Guidelines on Prevention
of
Blindness in South Africa issued by the Department of Health in 2002
and amended in 2013 (these were attached to Prof Smith’s
report
contained in bundle B from page 30 onwards). Secondly, is whether Ms
M. was advised and given a letter when she was discharged
at the
hospital to attend an eye clinic at Inkosi hospital for her child to
be screened for ROP and thereby preventing the ROP
from developing to
stage 5.
[6]
With regards to the first issue, Professor J Smith, a paediatrician
and neonatologist, and also the plaintiff’s expert
witness,
together with Dr N Mckerrow, also a paediatrician and the defendant’s
expect witness and Dr R Singh, a
paediatrician and a
neonatologist that was amongst the doctors that treated the baby, all
agreed in a joint minute handed in by
consent between the parties
during the trial as exhibit B1 that the oxygen saturation levels
maintained on the baby were consistently
higher than 95% which is
regarded as a safe upper limit for such saturations. Prof Smith and
Dr Mckerrow further agreed that there
was no evidence on the hospital
records that showed that any action was taken to reduce the high
levels of oxygen saturations.
They concluded that the hospital failed
in the primary prevention of the development of ROP in that they
failed to adjust the administered
concentrations of oxygen according
to actual patient requirements and therefore failed to follow
reasonable protocol to avoid development
of ROP. However, Dr
Singh disagreed.
[7]
Her view was that the doctors’ and nurses’ notes as
indicated on the hospital records showed that attempts were
made to
wean the baby off oxygen but it was difficult since the saturation
levels would drop to between 77 and 80%. During
her testimony,
Dr Singh was asked to point to a file note that suggested that the
oxygen levels were reduced and that they did
drop. She first
testified that the oxygen levels had dropped but the medical
registrars did not record this in their notes.
She further testified
that if one looked at page 254 of exhibit A, it becomes evident in
that blood gas form under column FiO2
(fraction of inspired oxygen),
that the oxygen was weaned from 60 - 40 - 30 – 25% and the baby
was extubated to nasal prong
oxygen. However on my observation of
that form there is only one instance where the oxygen saturation
levels were recorded as 77
% and that was on 3 June 2009. At
all the other times the levels were fluctuating between 97 and 100 %
with the majority
being at 100%.
[8]
Furthermore, even though it was not disputed, there was no evidence
tendered as to who the author of page 254 was. Dr
Singh
testified that various medical registrars would have made the notes
in page 254 but she personally never made those notes.
Whilst
Dr Singh testified that they were concerned by the high levels of
oxygen saturation on the baby, there is no note throughout
the baby’s
hospital records that shows or records that this was the case.
It is my view in fact that the doctors that
treated the baby at the
hospital were not concerned with the high oxygen saturation levels.
One wonders whether they knew that
the oxygen saturation levels were
not supposed to be above 92%. Prof Smith’s undisputed evidence
was that the oxygen saturation
levels are easily monitored by placing
a clip with a built in alarm on the finger of the baby which gives an
instant reading. Once
the alarm is switched on and the saturation
level is higher than the acceptable level then the alarm would beep.
There was no evidence
that this was done on this baby. In one of her
articles,
[1]
Dr Singh has
written that all neonates receiving supplemental oxygen should be
monitored with a pulse oximeter and SaO2 should
be recorded. Oxygen
should be humidified. An oxygen saturation guideline should be
displayed in the neonatal ICU. It was not the
evidence before me that
this was complied with at the hospital. Dr Singh therefore fell short
on her own standards. I am also not
persuaded that attempts were made
to reduce the oxygen saturation levels.
[9]
In this regard Dr Singh’s evidence was not objective but
subjective. She was more defensive than assisting the court in
revealing the truth. She was argumentative in the witness box and she
tried to mislead the court but was caught out under cross
examination. For instance, in her report handed in by consent during
the trial, she states that visual defects can be associated
with
colpocephaly but under cross-examination she conceded that
colpocephaly does not cause ROP which has nothing to do with the
brain but is the result of the failure of the retinas to develop
(page 49 of bundle B). Her evidence was unsatisfactory and I was
unimpressed by her as a witness.
[10]
In my view and as submitted by Mr
Pillay
SC who
appeared with Mr
Oliff
on
behalf of the plaintiff, Dr Singh’s evidence does not qualify
as one of an expert but a mere witness of the defendant.
[2]
She was one of the doctors that treated the baby. She was and still
is the head of the Neonatology department at the hospital.
It is
understable, and her evidence revealed as much, that she would not
like to see her department or hospital for that matter
to be
portrayed in a bad light. I therefore agree with the experts, Prof
Smith and Dr Mckerrow, that the hospital failed to adjust
administered concentrations of oxygen according to the child’s
requirements and therefore failed to follow reasonable protocol
to
avoid development of ROP as prescribed in the national guidelines for
blindness. According to Prof Smith, and his evidence was
undisputed
in this regard, these guidelines are available in all government
hospitals and the doctors are taught this in their
undergraduate
degrees. They therefore failed to exercise reasonable care and
skill in treating the baby and were therefore
negligent.
[3]
[11]
That, however, is not the end of the matter. It was common
cause between the experts and Dr Singh that because the child
was
born prematurely at 28 weeks gestation, weighed 1.3 kg, had at least
two blood transfusions and suffered from severe distress
syndrome,
she was at high risk to develop ROP. As a result, according to
Dr Singh, an eye clinic for ROP screening was booked
for 29 June 2009
at Inkosi hospital, three days after the date of discharge.
According to Dr Singh the mother of the child
did not honour the
appointment after having been advised of the appointment and its
importance. Dr Singh however, had no
personal knowledge that
the mother was advised of the ROP appointment.
[12]
However, Ms M. testified that when she was discharged at the
hospital, she was never advised of any appointment that she had
to
attend after being discharged. She testified that only when she
arrived at her home did she discover two letters that
were in a
packet that had the baby’s medication which she was given by a
nurse. One letter was written ‘audiology’
whilst
the other was written ‘cardiology’. She testified that on
the morning when she was being discharged, Dr Nair
advised them at
about 06H00 that all children were going home that day as there was a
doctor’s strike. The very sick
children would be sent to
private hospitals. She testified that that was the last time
she saw Dr Nair that day. She
was thereafter discharged by a
nurse who never told her of any appointments she had to attend.
[13]
She testified that two or three days after she was discharged from
the hospital the child became sick and distressed and she
took her to
Port Shepstone hospital. She gave the two letters she saw in
the packet with the baby’s medication to the
doctors and nurses
at Port Shepstone. There they rebooked those appointments. She
was adamant that there was no letter written
‘ROP’ or
‘eye clinic’ in that packet. She denied that she was
discharged by Dr Nair and given the letters
during the discharge
process. She testified that had she known about the ROP appointment
she would have attended as she was concerned
with her baby’s
health
[14]
Dr Nair, who was the attending doctor on the day that Ms M. was
discharged testified that she did not have an independent
recollection of the matter but after having refreshed her memory by
reading the medical records, she now remembered the matter.
She
testified that she probably would have seen the patient between 09H00
and 10H00 that morning but not at 06H00 as testified
to by Ms M..
She testified that once she deemed the child fit for discharge, she
ensured that she counselled the mother about
the importance of all
the follow up appointments. She could not recall that she was
at work at 06H00 as alleged by the plaintiff.
She also did not
recall making the announcement that all babies would be discharged
that morning and only very sick babies would
be transferred to
private hospitals as there was a doctor’s strike during that
period.
[15]
She did however confirm that there was indeed a doctor’s strike
during that period and a decision had been made to discharge
all the
babies and those that were critical would be sent to private
hospitals as they had skeleton staff in the ward. She further
testified that only doctors discharged patients but not nurses as
alleged by Ms M.. She recalled that the only appointment
she
had to book for Ms M. was for the audiology clinic as the dates of
appointment for ROP and cardiology were already written
on the
patient’s file. Under cross-examination she testified that she
could not say that the plaintiff’s evidence was
false when she
said nobody gave her the letters and the two she found were on the
packet that was handed to her. On why Ms
M. would not hand over
the letter for ROP at Port Shepstone hospital when she was admitted
there, Dr Nair testified that maybe
she did not see the letter.
Contrary to Dr Naidoo’s evidence that the discharge summary is
kept in the patient’s
file, she testified that she gave a copy
of that summary to Ms M. during the discharge process. This
summary, according to
her, would have a follow up date for Ms M. to
attend the neonatal clinic.
[16]
From the evidence of Ms M., that summary was not in that packet.
She was also asked as to why she never recorded that
she had
counselled Ms M. about the appointments during the discharge process
and her response was that she did not?
[SB1]
always
recorded that she had done counselling. On perusal of the nursing
staff notes on Bundle A, the nurses always recorded
the identity of a
doctor that attended to Ms M. except the one made on 25 June that she
was seen during doctors’ rounds.
There is therefore a ring of
truth to Ms M.’s testimony that she was discharged by a nurse
and not Dr Nair. She was adamant
that she was not discharged by Dr
Nair as she knew her and also pointed her out in court as the doctor
that made the announcement
early that morning. The question really is
why would Ms M. not attend the eye clinic appointment if she knew
about it and was told
about its importance and the consequences if
she failed to attend.
[17]
There are two irreconcilable versions on this issue. I have to
make a finding on the credibility of the two witnesses,
their
reliability and the probabilities.
[4]
I was impressed by Ms M. in the witness box. She clearly
remembered the events whilst she was at the hospital more
so the
events on 25 June 2009 when she was discharged. Her evidence was
clear and in my view she was a credible witness. It
is
probable that Dr Nair did announce that all babies would be
discharged that day and the very sick children would be transferred
to private hospital, otherwise how would she have known about it?
In any event Dr Nair and Dr Naidoo both confirmed that
this was
discussed amongst the doctors but they do not recall the announcement
about it. Ms M. recalled that the announcement
was made whilst
they were bathing their children and that must have been early in the
morning. She infact testified that
it was 06H00. All that
Dr Nair said in this regard is that she did not recall being at work
at 06H00. In my view, it
is probable that she would have been
at work early as there was a doctor’s strike. She would
have been there before
all the striking people would arrive.
[17]
Dr Nair did not have an independent recollection of the events of 25
June 2009 and yet Ms M. clearly remembered them. Dr Nair
testified
about what her usual routine was but on that day it was not usual
because of the doctor’s strike. In my view she
must have
written the notes and advised the nurses of what needed to be done
which they never did. I am satisfied that Ms M. was
not discharged by
Dr Nair but by a nurse as per her testimony. The nurse did not
explain to her about the appointments she had
to attend and she was
not given the letter for the ROP appointment. In fact it is my
finding that she was not given the letters
and they were merely put
in her medication packet. It is for that reason that she was not
counselled about the appointments she
had to attend. Had she been
advised of the appointments, it is my view that she would have
attended the ROP appointment as she
appears to me as having been
quite concerned about her child.
[18]
Further, in my view, had it not been for the fact that there was a
doctor’s strike during that period, Ms M. and the
baby would
not have been discharged but would have waited for the appointment of
29 June 2009. I agree with Prof Smith that
it would have been
safer and reasonable for the doctors, especially knowing the high
risk of ROP that the baby was facing, to keep
Ms M. and the baby at
the hospital as her appointment was only four days later and in any
event she had stayed at the hospital
for almost a month. In my view,
it was negligent for the hospital to have discharged her on that day
instead of transferring her
to the private hospital. They were
aware of the risk that the baby was facing and should have taken
precautionary steps to
ensure that the risk was mitigated but they
failed to do so. I am therefore satisfied that the negligent
conduct of the doctors
at the hospital in ensuring that acceptable
oxygen saturation levels were maintained on the baby and their
failure to advise Ms
M. of the appointment for ROP screening of the
baby caused the baby to develop stage 5 retinopathy.
[19]
Finally, Mr Pillay has urged me to award a punitive costs order
against the defendant. His submission was that the defendant’s
expert witness, Dr McKerrow, had advised them to concede liability
but they persisted in defending the matter, therefore wasting
the
state resources. However, in my view the defence by the defendant was
not mala fides. There was a dispute of facts on whether
the plaintiff
had been advised of the ROP appointment at Inkosi hospital and I had
to make a finding on that issue. I am therefore
not persuaded that
this is an appropriate matter where punitive costs must be awarded.
[20]
Accordingly, I make the following order:
(a)
The defendant is liable for all of the plaintiff’s proven or
agreed damages arising
out of the blindness of A. V. M., a girl born
on 27 May 2009;
(b)
the defendant is liable for all the plaintiff’s reasonable
costs of suit as agreed
or taxed including:
(i)
costs consequent upon the employment of two counsel where employed.
(ii)
reasonable costs of the reports, consultation fees including costs of
attending pre-trial conferences plus qualifying and attendance
fees
including costs of travelling for the plaintiff’s expert
witnesses, namely Prof Smith and Dr Sara.
(c)
The matter is adjourned sine die for the determination of quantum.
________________________
POYO
DLWATI J
APPEARANCES
Case
Number
: 4401/2014
Plaintiff
:
A.
B. M. (
ref
M2469
)
Represented
by
: Adv M Pillay
SC with Mr Oliff
Plaintiff’s
Attorneys
:
Justice
Reichlin Ramsamy -
031 305 3844
Defendant
:
The Member of The Executive Council for Health
Kwazulu-Natal (
ref
24/004232/14/M/P10)
Represented
by
:
Mr TSI
Mthembu
Defendant’s
Attorney
:
State
Attorneys Office -
031 365 2559
Date
of Hearing
: 27,
28, 29 January and 05 February 2016
Date
of Judgment
:
15 February
2016
[1]
South
African medical journal No.2 Vol 103 February 2013 at page 117
handed in as part of bundle E at page 15
[2]
Pricewaterhousecoopers
Incorporated and Others v National Potato Co-operative Ltd and
Another
[2015]
2 All SA 403
(SCA) paras 98 and 99.
[3]
Goliath
v MEC for Health
,
Eastern
Cape
2015
(2) SA 97
SCA para 8.
[4]
Stellenbosch
Farmers’ Winey Group Ltd and Another v Martell et Cie and
Others
2003
(1) SA 11
(SCA) para 5.
[SB1]
Not
sure what this is meant to mean?