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[2016] ZAECMHC 38
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Mene v Member of the Executive Concil for Health in the Province of the Eastern Cape (1365/2013) [2016] ZAECMHC 38 (22 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 1365/2013
DATE:
22 SEPTEMBER 2016
MSAWENKOSI
MENE
............................................................................................................
Applicant
And
MEMBER
OF THE EXECUTIVE CONCIL FOR
HEALTH
IN THE PROVINCE OF THE
EASTERN
CAPE
..................................................................................................................
Respondent
JUDGMENT
BROOKS
J
[1]
The plaintiff is an adult male who is resident at M L in T, Eastern
Cape. On 11 June 2013 he issued summons against the
defendant
on the basis that the defendant is nominally liable for all wrongful
acts committed by persons acting in the course and
scope of their
employment by the Department of Health, including those employed at
St Lucy’s Hospital, Tsolo.
[2]
Plaintiff’s claim is for damages. It is based upon
allegations that employees of the defendant stationed at St Lucy’s
Hospital, Tsolo, breached the terms of an oral agreement concluded by
them with the plaintiff, represented by his mother, to provide
diligent and adequate medical, surgical, nursing and midwifery
treatment, alternatively that the defendant’s employees
stationed
at St Lucy’s Hospital, Tsolo, acted negligently
whilst under a legal duty of care to render such services to the
plaintiff
and his mother.
[3]
Both causes of action relied upon by the plaintiff arise from the
circumstances which arose subsequent to his mother’s
presentation on 24 July 1994, at approximately 05h00, at St Lucy’s
Hospital, Tsolo. The allegations common to both causes
of action are
that at the material time the plaintiff’s mother was in labour
prior to the birth of the plaintiff, that the
defendant’s
employees failed to assess properly and monitor the pre-natal
plaintiff and his mother so as to establish whether
the plaintiff
should be delivered naturally or by caesarean section, that they were
negligent in not doing so, in delivering the
plaintiff by vacuum
extraction instead of caesarean section thus causing injuries to the
plaintiff’s right arm and/or shoulder
resulting in Erb’s
palsy and the lameness of the limb, in not detecting promptly the
injury to the plaintiff and in not referring
the plaintiff promptly
for remedial surgery so as to obviate or mitigate the effects of the
injury.
[4]
The plaintiff alleges that due to the negligence of the defendant’s
employees the plaintiff suffers with an atrophied
and useless right
arm and that this is a permanent condition.
[5]
In due course, the plaintiff’s action was defended and the
defendant filed a plea which denied liability on the basis
that the
plaintiff and his mother were given optimal care, examination,
treatment and advice with such skill, care and diligence
as was
reasonable in the circumstances that presented. Significantly,
in the plea the defendant merely “notes”
that the
plaintiff sustained injuries to the right arm and/or shoulder
resulting in Erb’s palsy and that he suffers permanently
from
an atrophied and useless right arm, but denies that the defendant’s
employees were negligent in performing the vacuum
extraction
procedure and the delivery of the plaintiff.
[6]
Accordingly, excluding the elements of the dispute between the
parties pertaining to the
quantum
of the plaintiff’s damages, the ambit of the dispute between
the parties relating to the issue of casual negligence is limited.
At the commencement of the proceedings the parties sought an order by
agreement in terms of the provisions of Rule 33(4) of the
Uniform
Rules of Court which had the effect of separating the issues
pertaining to the liability of the defendant from the issues
pertaining to the
quantum
of the plaintiff’s damages and postponing the latter
sine
die
. Such an order was granted.
[7]
Subsequent to the close of pleadings, expert notices and reports in
support of the plaintiff’s claim were provided by
Dr M. D. du
Trevou, a neurosurgeon and Dr C. B. Hulley, an obstetrician and
gynaecologist.
[8]
Expert notices and reports provided by Dr L. Z. Gqiba, an
obstetrician and gynaecologist and Dr J. Retter, an orthopaedic
surgeon
were filed on behalf of the defendant. The latter
report does not enter into the debate about the introduction of the
vacuum
assistance into the delivery of the plaintiff. The
former report expresses the view that the vacuum extraction should
not
have been performed during the delivery of the plaintiff.
The plaintiff’s mother, suggests the report, should have been
offered a caesarean section.
[9]
It is apposite to record at this point that none of the defendant’s
expert witnesses were called to testify. After
the closure of
the plaintiff’s case the defendant’s case was closed
without any evidence being led.
[10]
It follows that the issue of casual negligence falls to be determined
upon the evidence presented on behalf of the plaintiff.
[11]
The first witness for the plaintiff was his mother. She
testified that her pregnancy with the plaintiff was without problems
and that she had attended an ante-natal clinic regularly. It
seems that towards the end of her pregnancy there was a suspicion
that she may be carrying twins and some concern was expressed about
her diminutive stature in coping with the delivery. This
was
her first pregnancy and her usual body weight was fifty two
kilograms. She was advised to ensure that she presented herself
at hospital so that her delivery could be monitored. This she
duly did at the onset of labour pains, presenting at St Lucy’s
Hospital, Tsolo, at approximately 05h00 on 24 July 1994. She
eventually gave birth at approximately 05h00 on 26 July 1994.
During the forty-eight hour labour she experienced regular labour
pains which increased in severity. On each occasion that
she
approached the labour ward the sister-in-charge told that her
dilation was insufficient to give birth and that she should walk
up
and down the hospital corridors until full dilation was achieved.
This she did, notwithstanding little sleep, increasing
levels of pain
and exhaustion. Eventually at about 15h00 on 25 July 1994 she
asked the sister-in-charge to arrange for surgery
because the pains
were unbearable. She was told that she would see the doctor but
in the meantime must continue moving up
and down the corridors.
She complied with these instructions. At 18h00 she reported to
the sister-in-charge that her
labour pains were very strong, that she
experienced difficulty in walking as one leg had become stiff and
that she felt weak.
The sister-in-charge told her that she
would call a doctor but then went off duty.
[12]
Close to 21h00 the plaintiff’s mother realised that her “waters
had broken”. She reported to the nurse
on duty in the
labour ward that this had occurred and was told that the nurse would
look for a doctor. Eventually at approximately
03h00 on 26 July
1994 the pains were unbearable and the plaintiff’s mother felt
that she “was giving in”.
This appears to have
galvanised the nurses on duty to call the doctor and the plaintiff’s
mother was taken to the labour
ward. She was told to “push”
because she was ready to give birth but it was difficult. Once
the doctor
arrived she asked again for an operation but the doctor
said that she was about to give birth and must “try by all
means”.
At approximately 04h20 the plaintiff’s
mother was still trying to “push” but said that she could
not continue
to do so. She was losing power and becoming weak.
At that stage the baby’s head was visible but not completely
out of the cervix. It is then that the plaintiff’s mother
lost consciousness. She regained consciousness only
after the
delivery.
[13]
Sometime during the morning of 27 July 1994 the plaintiff’s
mother noticed that the plaintiff’s right arm was lame
and just
rotating. She tried to ask the sister on duty who was handling
the plaintiff why this was but she was reprimanded
and told not to
ask questions. She was undeterred and when she was told to go
back to the ward she started screaming.
The plaintiff’s
mother was then taken to another room and was told that she and the
plaintiff would be taken to Bedford Orthopaedic
Hospital in Mthatha
as the plaintiff “had a dislocation”.
[14]
Before the plaintiff and his mother were discharged from St Lucy’s
Hospital, Tsolo, a nursing sister employed there advised
her to look
for Dr Hulley. She was not taken to Bedford Orthopaedic
Hospital in Mthatha and sometime after her discharge
she took the
plaintiff there herself. At Bedford Orthopaedic Hospital the
plaintiff’s arm was bandaged and his mother
was told that he
would be attended to. However, before any further treatment was
administered to the plaintiff, his mother
made her own way with him
to Groote Schuur Hospital in Cape Town. There she saw two
doctors. By then the plaintiff
was approximately eight months
old. Two surgical procedures were conducted on the plaintiff
without success. The plaintiff’s
mother was told that she
has brought the plaintiff in too late; she should have come to Groote
Schuur earlier on when she was still
at St Lucy’s hospital,
Tsolo.
[15]
It was the evidence of the plaintiff’s mother that she had not
been scanned or subjected to an X-ray. Only mechanical
tools of
some sort were used for the ante-natal examination of the plaintiff’s
mother. Notwithstanding the suspicion
that she was carrying
twins, only the plaintiff was
in
utero.
To
use the words of his mother, he was “a very big boy”.
[16]
The plaintiff’s second witness was Dr. C.B Hulley. He
confirmed that he had examined the plaintiff and was confident
in his
diagnosis that he presented with a right arm exhibiting all the
symptoms of Erb’s palsy. He stated that the
palsy results
from damage to the brachial plexus of nerves just under the clavicle
that run down the arm and into the hand.
The injury arises
during the delivery by women with small pelvises or in whom the baby
presents in a breach position. It
can be encountered in babies
born to diabetic mothers or mothers in pre-diabetic condition; in
such circumstances the babies were
usually large but with a normal
head size. During delivery the shoulder of the baby can become
stuck behind the pubis.
[17]
Dr Hulley opined that the plaintiff’s recorded birth weight
(variously recorded as 4,7 kg or 4,9 kg) indicated that he
was a very
large baby “ not made for a vaginal delivery”. The
height of the plaintiff’s mother was only
1,7 m and the
plaintiff was far too large to pass through his mother’s
pelvis. In these circumstances, Dr Hulley was
of the opinion
that the plaintiff’s right shoulder had become stuck behind the
pubis; although his head had passed through
the pelvis it was not
possible for his body to do so uninjured.
[18]
No documentary evidence was available of any monitoring of the
labour. Due to the lapse of time since 1994, one cannot
simply
assume that no records were completed relating to the development of
the labour process encountered by the plaintiff’s
mother.
However, whether records were kept or not, the evidence is clear that
the plaintiff’s mother was in labour
for at least forty eight
hours. Given suspicion that the plaintiff was one of a set of
twins, informed most probably by the
evident size of the foetus, the
diminutive size of his mother, the fact that this was her first
pregnancy and the alarming length
of her unproductive labour, Dr
Hulley was of the firm opinion that vacuum assistance should never
have been used in the delivery.
After twelve hours of labour at
the most the plaintiff’s mother should have been assessed by a
doctor. Had she been,
the doctor would have come to the
conclusion that a caesarean section delivery was called for. If that
had been the case, the plaintiff
would have been born almost
certainly without injury. It was Dr Hulley’s concluding opinion
that such a lengthy labour in
a hospital environmental demonstrated
an unacceptably low standard of medical care.
[19]
In my view, the evidence tendered on behalf of the plaintiff
demonstrates both that a factual link exists between the conduct
of
the defendant’s employees at St Lucy’s Hospital, Tsolo,
and the harm sustained by the plaintiff and, indeed, that
the
defendant should be held legally responsible for the consequences of
that conduct.
[1]
[20]
It follows that I am of the view that the plaintiff has succeeded in
discharging the
onus
of establishing casual negligence on the part of the defendant’s
employees who saw to the delivery of the plaintiff at St
Lucy’s
Hospital, Tsolo. The harm directly caused was the Erb’s
palsy with the resultant permanently lame right
arm and hand about
which there is no apparent dispute. The plaintiff is entitled to such
damages as may be proven or agreed between
the parties in due course.
[21]
In the result, the following order is made:
“
1.
The defendant is directed to make payment to the plaintiff of such
damages as may be proven by the plaintiff on trial or as may
be
agreed upon between the parties as having been suffered by the
plaintiff arising out of the Erb’s palsy caused by the
delivery
of the plaintiff on 26 July 1994 at St Lucy’s Hospital, Tsolo;
2.
The defendant is further directed to pay the plaintiff’s costs
of suit, such costs to include the travelling expenses,
reservation
and appearance fees, if any, together with the costs of the
preparation of the report and qualifying fees, if any,
of Dr. C. G.
Hulley, and the travelling and accommodation expenses incurred by the
plaintiff’s mother, Nosiseko Mene, in
attending court.
3.
The defendant is directed to pay interest on the aforesaid costs,
such interest to be calculated at the prescribed rate of interest
from a date fourteen (14) days after date of allocatur, or after date
of agreement, to date of payment
.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances:
For
the plaintiff: ADV J.L. HOBBS
Instructed
by: J. S. Sikhungo & Associates,
55
Maderia Street,
Meyers
Building
Suite
13,
MTHATHA
For
the defendant: ADV I. J. SMUTS S.C. And
ADV
L. SAMBUDLA
Instructed
by: State Attorney
MTHATHA
Date
heard: 19 September 2016
Date
delivered: 22 September 2016
[1]
HLOMZA
v MINISTER OF SAFETY AND SECURITY AND SECURITY 2013(1) SACR 591
(ECM) para [35].