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[2016] ZAGPPHC 1022
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Makhanya v Netcare Hospitals (Pty) Ltd t.a Netcare Femina Hospital and Another (53151/2015) [2016] ZAGPPHC 1022 (9 December 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 53151/ 2015
9/12/2016
Reportable:
Yes
Of
interest to other judges: No
Revised.
In
the matter between:
MAKHANYA,
SIBUSISWE AUDREY
ON
BEHALF OF O.
M. PLAINTIFF
And
NETCARE
HOSPITALS (PTY) LTD
T/A
NETCARE FEMINA
HOSPITAL 1
st
DEFENDANT
DR
F. M.
MOLOKOANE 2
nd
DEFENDANT
JUDGMENT
Fabrlclus J
1.
While
part of the world celebrated Christmas for various reasons on 25
December 2013, a young boy's life was destroyed by the negligence
of
medical personnel, either due to the negligence of the staff of First
Defendant, the Netcare Femina Hospital, or the acts or
omissions of
Dr F. M. Molokoane, an obstetrician, who is the Second Defendant in
these proceedings, or both.
2.
The
child's mother acts herein in her representative capacity as the
mother and natural guardian of the minor son who suffered a
permanent
and total brain impairment (cerebral palsy), arising during the
labour process at the hospital on 25 December 2013. It
was agreed
that the trial would proceed on the issues of liability only, i. e.
negligence and causation, and that the issue of
quantum would be
determined at a later stage, if Plaintiff proved her case.
3.
After
the close of Pleadings, the parties agreed on matters that were
common cause between them, and prepared a document setting
out these
facts which was handed in as exhibit A, and which forms part of the
record. Expert reports and joint Minutes of experts
were also handed
in, and it was agreed that these documents were what they purported
to be without the need to call the author,
although the correctness
thereof was not admitted. It was further agreed that the expert
reports would serve as evidence into the
record, on the condition
that the parties were able to lead evidence and cross-examine the
experts should they so wish.
4.
Plaintiff
gave evidence and also called the following expert witnesses:
4.1.
Dr L. Pistorius, a maternal and foetal
specialist;
4.2.
Prof Jan Lotz, a paediatric neurological
radiologist; and
4.3.
Sister Barbara Hanrahan, a nursing specialist.
The
qualifications of these witnesses as experts were not placed in
dispute, nor was their expertise.
5.
Plaintiff
s evidence:
She
fell pregnant during March 2013 with her first child. She had
attended a private obstetrician, Dr Sulliman for her ante-natal
care.
There were no ante-natal problems. She had also attended ante-natal
classes, where she was educated as to what to expect
during the
labour process, and had done research herself on this topic over the
internet.
6.
On
25 December 2013, she experienced lower abdominal pains in the early
hours of the morning. Relying on the knowledge that she
had gained
from her own research, she did not think that she was then in active
labour and went about her normal day-to-day activities,
which
included making prepared meals for her husband and also going for a
walk after lunch. After 1ShOO, the pains increased and
she was taken
to First Defendant's Femina Hospital in Pretoria. She was admitted,
taken to a receiving room in the labour ward,
was examined, had
contractions, and was told that she was in labour. At about 18h00, Dr
Sheik saw her and looked at her file. At
that time she had confirmed
that she did not want pain medication.
7.
After
20h00, the pain became more intense and she was struggling with the
intensity of th1se labour pains. A nursing sister told
her that they
were busy preparing the delivery room and left. After a while, she
returned and told her that she had been unable
to contact Dr Sheik.
She was taken to the delivery room and when she went to the bathroom
she saw blood dripping down her legs.
She told the nurse about the
bleeding and the pains.
8.
She
had very strong labour pains. After 21h00, Second Defendant arrived.
She checked dilation and she heard that she told the nurse
that she
was eight centimetres dilated, that the child's head was a bit high
and asked whether her ''waters" been broken.
The nurse answered
in the negative, whereupon Second Defendant proceeded to "break
her waters". After a few minutes she
told the doctor that she
had a strong urge to push, but this was ineffective and she had very
little energy.
9.
Second
Defendant then asked the nurse to obtain the suction apparatus which
the doctor then used three times, and thereafter attempted
to use
forceps. Thereafter the doctor told the nurses to prepare for a
caesarean section. The doctor had also asked the nurse to
put her on
a drip and whilst the nurses prepared for the caesarean section, the
paediatrician arrived. She still had the urge to
push at the time and
told the nurses so, but in reply she was asked not to do so and to
lie on her side. The paediatrician was
at the foot of the bed and
said to the nurse that he could see the baby's head. The nurse
replied that there was a need for a caesarean
section, but was then
told that the baby had "come ouf'. The nurse turned her around
and gave instructions to push further.
Eventually the baby was born.
10.
Second
Defendant did not explain the risks and nature of the instrumental
delivery attempts to her and did not obtain her consent,
but told her
that the procedure was needed as the baby was suffering from
distress, which she accepted.
11.
The
evidence of Prof L
otz:
He
gave evidence about the images of the MRI taken in August 2014, which
still correctly reflected the pattern of injury to the
brain at the
time of birth. The white areas appearing on the MRI images were areas
where cells had died as a result of blood being
drawn from the brain
and shunted to the basal nuclei. These areas effectively now
consisted of water. The images show extensive
white matter
destruction over almost all areas of the brain. The corpus callosum
is globally destroyed, commensurate with extensive
peripheral white
matter destruction. The MRI images indicated a global and near-total
pattern of injury, which meant that the impairment
probably arose
over a period of at last three hours before the birth. He was of the
opinion that the clinical findings would corroborate
this time frame.
It is not in dispute that the child was born at 23h40.
12.
Dr
L. Pistorius:
He
is a foetal and maternal specialist, which was a sub-speciality of
obstetrics. He also holds a Ph.D. degree in foetal brain imaging.
He
was of the view that there were no factors, either ante-natal or
post-natal, to show that the child would have been born with
a brain
impairment, but for the negligence of Defendants. He explained how
hypoxia arose. Oxygen from the mother's blood diffuses
across the
membranes to the foetal tissues. Each and every time the mother
experiences a contraction, the blood supply to the foetus
is
compromised, thus cutting off the oxygen llJ the foetus and hence its
brain. The longer the foetus is exposed to this compromise
whilst the
mother is having contractions, the worst the effects would be the
foetus, as it cannot recover in time before the next
contraction
begins. This "snow-balling effect" sets in and compromises
the blood-oxygen supply. The stronger, longer
or more frequent any
contractions are, the more such blood/ oxygen supply is interrupted
to the foetus. During the trial, the Plaintiff
sought an amendment to
her Particulars of Claim relating to a ground of negligence relied on
vis-a-vis
Second Defendant. This was that "she prescribed
the drug Pitocin when it was contra-indicated in the presenting
circumstances".
There was no objection to this application for
amendment and it was granted. In this context Dr Pistorius testified
that Pitocin
(oxytocin) was an artificial uterine stimulant which
amplified the frequency and strength of the contractions in an effort
to stimulate
such activity and expedite delivery. This drug must be
used with caution, because as the uterine activity increases, it
effectively
has the downside of enhancing the limitation of oxygen to
the foetus and retaining C02 in the contraction process. He was of
the
view that it would have been negligent to have commenced Pitocin
was administered at 2 2h05 at the time when Plaintiff was already
experiencing strong contractions, her labour was progressing well and
she had experienced vaginal bleeding. It should have been
stopped
immediately when foetal bradycardia of 60 to 80 beats per minute was
noted at 22h08, as the on-going administration thereof
would have
been harmful to the foetus if this was probably precipitating
bradycardia. The effects of Pitocin could and should have
been
reversed with the administration of a counter drug. There was no
indication that the Pitocin was stopped, and during this
time the
foetus would have been subjected to the mechanisms of hypoxia. I will
deal with the topic of the Pitocin when I deal with
the evidence of
the Second Defendant.
13.
As
far as instrumental delivery was concerned, he testified that it was
not indicated, because a number of pre-requisites were required
according to normal standards, and there were no written entries that
these pre-requisites were present before commencing the procedure.
He
gave details as to how ventouse (vacuum) delivery should be attempted
according to protocol, and also when and how forceps should
be used
according to protocol. Again, I will deal with this topic when I
analyse the evidence of Second Defendant and the parties'
submissions
thereon.
14.
He
added that after the attempts at instrumental delivery failed, the
foetal heart rate continued to show bradycardia (low foetal
heart
rate below the norm). The relevant records indicated that Plaintiff
had been pushing for more than one hour whilst they were
waiting for
an anaesthetist.
He
added that the actions or the omissions of the Second Defendant in
attempting the failed instrument deliveries, and then not
commencing
with a caesarean section delivery immediately, was contrary to
protocol, and most probably led to the foetus suffering
from hypoxia.
15.
Record
keeping:
Dr
Pistorius was of the view that First Defendant (obviously through its
employees), failed to keep proper records. The partogram
was not
completed properly. Had it been done, it would have provided the
Second Defendant with an overview as to the progress of
labour, or
the lack thereof, the foetal condition, and any complications that
were arising at the time. In response to a question
by me, he stated
that if it had been completed properly, then a doctor would most
probably have been called at an earlier stage,
and told that the
foetus was in distress. This in turn would have led to an earlier
caesarean section, and avoidance of the events
that led to the
cerebral palsy. All of this would have happened a lot earlier than
when Second Defendant arrived at the hospital
at 21h45. If dilation
had been recorded correctly to show lcm at 16h00, but quick progress
thereafter, this could be either reassuring,
alternatively it could
be an alert that the mother was experiencing over-active uterine
contractions. The foetal condition should
have been assessed and
entered into the program and this could have alerted the staff to
foetal distress.
It
was also protocol that the foetal heart rate should be assessed every
30 minutes in the active phase of labour, before, during
and after
contractions. The foetal heart rate is a crucial indicator of foetal
condition and is assessed by means of an electronic
cardio topography
("CTG"). The condition is determined by taking into account
the baseline foetal heart rate, as well
as other factors including
variability (range between beat-to-beat), decelerations,
accelerations and variations. There were no
CTG tracings available to
indicate foetal heart condition from 21h07 to 23h2 5. This was most
probably the most critical time when
it should have been done after
bradycardia arose. There were only tracings of a foetal heart rate at
16h10, 21h48 and 2 3h25.
16.
Foetal
heart rate variability:
Foetal
heart rate variability represents the balance between the sympathetic
and para-sympathetic nervous system. Lack of variability
can be an
indication of foetal distress. From 16h10, the continuous cardiograph
showed that the foetal heart rate had a lack of
variability. This was
admitted on behalf of First Defendant. There was no indication that
the cause of variability at the time
was investigated. Lack of
variability could also be due to foetal sleep pattern, but there was
no indication that foetal distress
was excluded. This meant,
according to Dr Pistorius, that it could not be excluded that foetal
distress could have arisen from
as early as 16h10.
17.
Apgar
scores:
Apgar
scores are a subjective assessment of the baby's first response to
life. Five factors are graded on a scale of 10 at one minute,
five
minutes and 10 minutes. In this case the one minute score was 3 /10
and five minute score was 6 /10, indicating that the foetus
suffered
distress shortly before the birth. The 10 minute score of nine
indicated that the baby had responded well to resuscitation.
18.
Blood
gas results:
The
results of blood gas taken shortly after birth yielded a pH reading
of
7
.083, which was well below the accepted level of 7.2. The
base excess reading of -15.2 similarly was unfavourable. The higher
the
negative BE value above -12, the worse the condition of the
infant. In his view these readings indicated that the baby was
suffering
from metabolic acidosis, an imbalance which arises from
foetal distress in which the body has accumulated too much acid and
does
not have enough bicarbonate to effectively neutralize the
effects thereof. In his view both the pH and base excess levels
indicated
that the baby had been suffering from foetal distress
during the labour process.
19.
Ante-partum
haemorrhaging:
Plaintiff
was noted to have had blood in her urine at 15h45 at admission. This
could have been due to ante-partum haemorrhaging
or due to normal
process of dilation. She experienced vaginal bleeding at 20h30. This
was still present 45 minutes later when it
was reported to Second
D1fendant at 21h15. There was no indication that the cause of this
was investigated either at 15h45 or at
20h30, or thereafter. The
bleeding at 15h45 and 20h30 could be linked, but was probably due to
cervical dilation.
Ante-partum
haemorrhage was an indication for continuous CTG monitoring. CTG
should have commenced and should not have been discontinued.
It
ceased at about 16h50, but should in any event never be considered as
a substitute for clinical observation.
20.
Intra-uterine
resuscitation:
He
was of the view that Second Defendant should have started
intra-uterine resuscitation after the failed instrument deliveries
whilst waiting for the caesarean section. In his view it was possible
that this resuscitation could reverse what would have been
a more
serious hypoxic ischaemic encephalopathy ("HIE"). There was
no indication in the records of such resuscitation.
He also added
that it could take up to an hour for a caesarean section to be
performed from the time of decision.
21.
The
joint Minute between specialist obstetricians:
Dr
C. Sevenster and Dr Pistorius:
The
date of this joint Minute was 12 October 2016. The joint Minute can
in a number of respects not be reconciled with the expert
report of
Dr Pistorius, and on behalf of Second Defendant, it was put to him
and also argued that she did not consider herself
bound by the
contents of paragraphs 16, 18, 19 and 21 thereof. I mention the
following example: in par. 16 of this report it appears
that "Dr
Molokoane instructed that Su of Pitocin/11t of - lactate be started
at 2 2h05". There is no record of any such
instruction and a
complete lack of evidence as to when Pitocin had been administered,
how and when it had been obtained, and who
had initiated this
process. Dr Molokoane in fact denied in her evidence that she had
given such instruction, and also added that
she was not even aware
that it had been administered, or was so administered at the time of
her arrival. It was also said in par.
18 of this Minute that the
Second Defendant made an incorrect choice by not stopping the
Pitocin, which was used to increase contractions.
Par. 19 contains a
conclusion that a Court is called upon to make, and it is an
unjustifiable intrusion into the duty of the Court
which detracts
from the objectivity or good judgment of the particular
obstetricians. It said the following: "There is adequate
evidence that the hypoxic ischaemic injury to the brain of the baby
was a result of the Second Defendanf'. Dr Pistorius conceded
during
cross-examination that he S>hould not have signed the joint
Minute, and that after signing it he attempted to reach agreement
with Dr Sevenster to amend it, but the latter refused. He confirmed
that his report was accurate and that after preparing his report,
he
obtained no new information that would have persuaded him to amend
it. He therefore did not confirm the joint Minute as being
correct.
The content of his report can in a number of material respects not be
reconciled with the joint Minute.
In
par. 54 of his expert report the following was said: "With
regard to foetal monitoring and the tracings, it thus appears
that
the foetus could have been suffering from distress from as early as
16h10 till 16h50; from 20h48 till 21h07 (and perhaps longer,
but the
tracing ends there), and from 23h2 5 till birth at 23h40. Read in
conjunction with other factors dealt with thereafter
(MRI and blood
gas results), he is of the opinion that the CTG tracings are evident
of the fact that the staff and doctor failed
to properly monitor the
foetal condition and take heed of warning signs of foetal distress,
either timeously or at all. Had they
reacted sooner, the foetal
distress would have been prevented or limited". In par. 43 the
following was said: "Late FHR
decelerations coupled with lack of
variability are indicative of lack of oxygen to the foetus".
In
par. 68 the following view was expressed: "Because a decision to
expedite the delivery by c/s is made because the foetus
is suffering
from distress, during this time the foetus could be monitored
continuously by CTG. There is no record of foetal monitoring
(or of
foetal condition) until the CTG tracing which commenced at of 23h25.
When tracing be11ins, the foetus is seen to already
be suffering from
distress (lack of variability and late decelerations), so the
question arises as to how long prior to the tracing
havin!J commenced
was a distress present. Having regard to the Apgar scores and blood
gas results (especially the base excess score),
it would seem that
the foetus is su1fering from distress for a period before the tracing
commenced at 23h25".
22.
"OPINION":
The
following was said: "On the evidence available it appears that
the management of the Plaintiff's labour was plagued by
an on-going
chain of unfortunate events which were not properly managed or
attended to. There is a possibility that the foetus
was suffering
from distress from as early as 16h10, yet there is no indication that
this was investigated or attended to. Observations
noted are at odds
with tracings. Each tracing from 20h48 and 2 3h25 shows continued
lack of variability, yet there is no indication
that this was reacted
or attended to. The 20h48 tracing ends during an abnormal pattern and
there is no indication as to why the
CTG was not continued or what
was done to attend to the problem. As 23h25 tracing starts with a
similar lack of variability, (and
that there is no other tracing in
between to indicate the contrary), it is most likely that the FHR
pattern was also abnormal during
this absent period, yet was not
picked up and reacted to. It was inappropriate to have attempted
three vacuum extractions contrary
to good practice, and then a
further attempt at forceps delivery. The birth seems to have not
taken place within an hour after
the decision to operate. The MRI,
blood gas and Apgar scores all corroborate this opinion. The
unfavourable outcome could have
been prevented with prudent medical
care, attention and care, and O.'s impairment can reasonably be
directly linked to the negligence
of the hospital". In the light
of these opinions and others expressed in his expert report, Second
Defendant's Counsel Mr
P. Delport SC justifiably criticized the
witness for arriving at the conclusion with Dr Sevenster as contained
in par. 19 that
I have quoted.
23.
The
joint report also contains the conclusion that the record keeping by
the midwife was sub-standard according to the guidelines
for
maternity care in South Africa. However, given that the birth
asphyxia was most likely caused by a prolonged second stage,
aggravated by repeated failure of instrumental delivery, the
sub-standard midwifery care is unlikely to have had a significant
contributory effect on the final outcome. Another conclusion which is
one that Court must make was contained in the last paragraph
of this
joint Minute, namely "that there is no clear evidence that
Netcare Hospital (Pty) Ltd t/a Femina Hospital was negligent".
The statement itself is surprising given the opinions offered in
resp1ct of record-keeping, and actions relating thereto.
24.
In
the context of these paragraphs which do not accord with the
conclusions contained in his expert report, Dr Pistorius admitted
that when he signed the joint Minute, it was "not his best
momenf' as an expert witness.. I will deal with this aspect when
I
deal with the evidence of the Second Defendant and Counsel's
argument.
25.
Sister
Hanrahan:
It
is not in issue that Sister Hanrahan is a highly qualified expert in
nursing with over 30 years' experience in midwifery. She
and Sister
Els, another expert in nursing who the Second Defendant intended to
call as a witness, had met and had compiled a joint
Minute of their
findings. Their joint Minute is very detailed and
vis-a-vis
the
allegations made by the Plaintiff against First Defendant, they
agreed as follows:
25.1.
The Hospital failed to render good and proper
medical service that would be expected to be given to a mother and
the unborn foetus
during labour and birth;
25.2.
The Hospital failed to keep proper records of the
ante-natal care and/or of the labour and/or both, which records are
vital in order
to ensure proper assessment, management and treatment
of the mother and foetus;
25.3.
The Hospital failed to recognise that she was
experiencing complications of prolonged labour and have failed to act
accordingly;
25.4.
The Hospital failed to manage the Plaintiff
having regard to the fact that she was potentially a high-risk
patient at term;
25.5.
The Hospital failed to timeously enlist the
services of a duly qualified person to attend to the management of
Plaintiff during
labour and delivery, when it appeared that she was
experiencing complications;
25.6.
The Hospital failed to establish the reasons for
the complications or at least should have alerted the doctor thereto
with a view
to establish the reasons of the complications. There is
no record that they did so, and accordingly they failed to act as
good
practice would require to be done;
25.7.
The Hospital failed to notice that the foetus was
suffering from intermittent foetal distress from as early as 16h00 on
the day
of admission, and/or if they did, failed to act accordingly;
25.8.
The Hospital failed to record the failed
Wrigley's forceps delivery and take action to prepare for a caesarean
section;
25.9.
The Hospital proceeded to assist Second Defendant
with ventuse and forceps delivery procedures without first ensuring
that the informed
consent of Plaintiff had been obtained, either by
First Defendant or the Second Defendant;
25.10.
The Hospital failed to monitor the foetal heart
rate properly which would have alerted them to the foetal distress,
and failed to
react to indications that the foetus was suffering from
distress.
This Minute is dated 8
October 2016
26.
In
her evidence and by way of a summary, Sister Hanrahan stated that the
record keeping level of nursing care which could be gleaned
from the
records, was poor and contrary to the guidelines, the
Regulations
to the Nursing Act,
the SA Nursing Council and accepted nursing
practice. She also gave evidence about the role of Pitocin, and the
importance of CTG
tracing. She stated that from 16h10 till 16h35, the
tracing showed a lack of variability. This could be an indication of
foetal
hypoxia. There was no indication as to what was done to
establish if this was due to a foetal sleep cycle or foetal distress.
A
simple stimulation test could be performed to establish this. There
was no evidence that this was done or evidence to show that
foetal
distress was excluded. Vaginal bleeding was reported at 20h30, and
there was no record to show what was done to establish
the extent and
cause thereof.
27.
First
Defendant chose to rely on the joint Minutes of the experts and did
not call any witnesses. At this stage it is my opinion
from the
evidenc11 presented that the nurses on duty on that particular day
who attended to Plaintiff could have given material
evidence as to
her condition and the factors that I have referred to, including
details of the foetal heart rate, the readings
of the CTG and other
observations that they made during the critical hours, but did not
make a note of. It is clear on the undisputed
facts relating to the
absence of proper note keeping, that the particular witnesses were
not called by the First Defendant, because
it knew that such evidence
would damage its case by giving such evidence, and by subjecting
themselves to cross-examination. A
strong negative inference is
therefore justified.
See:
Galante v Dickenson
1952 SA 460
(A) at 265.
28.
Second
Defendan’s evidence:
Second
Defendant only became involved in the management and treatment of
Plaintiff and her unborn baby when she received a telephone
call from
Sister Bekker at 21h15. She testified that the Sister told her that
she tried to contact Dr Shaik, but was unable to
do so. The patient
was bleeding in the active phase of labour. The CTG was reactive. She
assumed therefore that it was normal.
She asked Sister Bekker whether
a caesarean section was necessary and was told that the bleeding was
not much, that the CTG tracing
was reactive, and that a caesarean
section was not necessary. She told Sister Bekker that she would be
on her way to see the patient.
This part of her evidence was not
disputed and, as I have said, Sister Bekker was not called by First
Defendant. In the context
of this telephone conversation, both Dr
Pistorius and Sister Hanrahan testified that "reactive"
meant "normal",
and Second Defendant then also testified
that that is how she understood it. I do not know 1Jn which grounds
Sister Bekker informed
the doctor that the CTG tracing was normal.
Sister Bekker was an experienced nurse. In her expert summary, Sister
Hanrahan said
that in terms of the
Regulations to the Nursing Act,
which prescribed good record keeping, the
Regulations
also
demanded of the duties of a registered nurse that a patient's vital
signs be monitored, and that the duties of a registered
midwife also
entailed the monitoring of the progress of pregnancy, labour, the
vital signs of the mother and child, and the reaction
of the mother
and child to various conditions. Wilful and negligent omissions were
also wrongful in terms of the
Regulations.
In accordance with
the exigencies of the circumstances and the seriousness of a
patient's condition, a nurse may also not neglect
to refer a patient
for medical care where such care is beyond the scope of practice of
the nurse, and may not delay such referral.
The keeping of good
medical records was essential for continuity of care, especially when
many clinicians are involved in a patient's
care and work in shifts.
Good record keeping is an integral part of good professional
practice. Records should include sufficient
detail for someone else
to take over a patient's care, seamlessly, from where one has left
off. Records that ensure continuity
of care will also be adequate for
evidential purposes, in the event of a complaint, a claim or
disciplinary action. Medical records
must therefore be clear,
objective, contemporaneous, tamper-proof and original. The timing of
each entry is most important.
29.
Second
Defendant arrived at the hospital at 21h45. She went to the labour
ward, examined Plaintiff, saw that the CTG was reassuring,
the
abdomen was soft and non-tender, and she tried to exclude causes of
the bleeding. The membranes were bulging and Plaintiff
was 9cm
dilated. She ruptured the membranes and after rupture waited to see
that the CTG was still normal. Since Plaintiff was
progressing
quickly, she went to the nurses' tearoom. The CTG at 22h00 was not
printing, but she could see the tracing on the monitor.
At about 2
2h10, the patient was bearing down and she was called to the delivery
room. She noticed that Plaintiff was pushing and
immediately attended
to the delivery. Plaintiff had been pushing for several minutes
without effect. The foetal heart rate was
60 to 80 beats per minute
at that time. She became concerned and decided to expedite delivery.
She therefore performed an assisted
delivery via vacuum extraction.
She did inform Plaintiff that the foetal condition was not well. The
vacuum process did not work
well and she asked the Sister to arrange
a caesarean section. The Sister returned and told her that she could
not get hold of an
anaesthetist and that she had given the duty to
call one to another Sister. At that time the foetal heart was not
improving during
the delay. She attempted a further vacuum attachment
to get the baby delivered. This as also not successful, and she then
did her
best to attempt a forceps delivery, which was also
unsuccessful. There was also me1ternal exhaustion at that stage. At
that stage
the foetal heart rate was 120 beats per minute.
She
did not prescribe Pitocin and was not aware until a week before the
trial commenced that it had been administered. The allegation
that
she was negligent in one or other manner in this context was not
contained in the Particulars of Claim, but this allegation
was
effected by way of an amendment which was granted during the trial.
She
did not look at the available records and would not have handled the
patient differently if she had, because the patient was
so dose to
delivery.
Her
instruction to Sister Bekker to prepare for a caesarean section was
at around 22h40 and she remained at the Plaintiff's bed
side. She
added that if she had been presented with a patient in latent labour,
and summoned to her bed side and was told of vaginal
bleeding and
lack variability, she would have started preparing for a caesarean
section. She agreed that it was against protocol
to have more than
two attempts at vacuum extraction where the cup slipped twice, and
adherence to protocol was important. She agreed
that her own clinical
notes were incorrect and not reflecting the interruption after the
second cup detachment, but explained that
she had only summarized the
events at the time. She agreed that her notes in this context were
sub-standard. She agreed that save
for her notes appearing in the
bundle of records, she made no other clinical notes and especially
none of her first consultation
and examination of the Plaintiff at
21h45. She added that she did perform intra-uterine resuscitation at
approximately 2 3h00 after
she had abandoned the efforts at assisted
delivery, but conceded that no record thereof was made in the notes.
She agreed with
Dr Pistorius' opinion in this context that
intra-uterine resuscitation could improve foetal condition, and if
initiated sooner,
the better could be the result. She could not
explain why nurses would prescribe Pitocin on their own, if they had
done so, whilst
she was in attendance at the hospital, and agreed
with Dr Pistorius that the unauthorized administration of Pitocin by
nurses was
a serious allegation. She also agreed that at 21h15 when
Sister Bekker called her and told her that Plaintiff was experiencing
vaginal bleeding, but that a caesarean section was not needed, that
it would have been a safer option for her to have started making
arrangements to get a team together in the event that a caesarean
section would indeed be needed.
30.
Plaintiff’s
argument:
Even
before that however, there were no notes to show that CTG lack of
variability was investigated and that foetal distress was
excluded at
16h10. In that context the nurses failed to timeously consider
alternatives to normal delivery by way of caesarean
section when the
presenting complications required that this be done from as early as
16h10.
They
also failed to monitor the foetal heart rate properly or at all,
which would have alerted them to foetal distress, alternatively
they
failed to react to indications that the foetus was suffering from
distress. The foetal heart condition was not monitored every
30
minutes before, during and after contractions as per the nursing
guidelines and accepted protocol. Tracings were also not kept
of all
observations and there was no record as to what the foetal heart
condition was from 21h08 until 23h25, save for the brief
note of
bradycardia at the time of the failed ventuse delivery attempts.
31.
The
results of the combined acts and omissions referred to was that they
allowed the foetus to become severely asphyxiated and to
suffer from
hypoxic ischaemic encephalopathy.
32.
The
opinions of Dr Pistorius and the detailed comments of the expert
nurses that I have referred to in some detail must be obviously
considered under this heading as well.
33.
Plaintiff
s argument vis-a-vis Second Defendant:
I
have mentioned the aspect of Pitocin. In my judgment there is no
evidence to show who ordered the administration of such, when
this
was done and for which period it had been administered. The
allegation that Stcond Defendant had been negligent in this context
was not contained in the original grounds l)f negligence relied on in
the Particulars of Claim, but was only introduced during
the trial at
a late stage. It was argued by Plaintiff's Counsel Mr Austen that
Second Defendant was not a good witness in that
she contradicted
herself and in regard to the allegations made in her plea in regard
to the sequence of events relating to the
ventuse detachments, and
exactly when a caesarean section was called for. It was submitted
that her denial that she prescribed
Pitocin, or knew that it had been
administered, as being unlikely on the balance of probabilities. It
was argued that she failed
in her duties to keep proper records of
the indications for ventuse delivery, the core details of the
procedure itself, read the
hospital file on arrival, record the
details of intra-uterine resuscitation, keep notes of her assessment
and examination on her
arrival at 21h45 and also transgressed
protocol by administering three ventuse applications.
34.
I
do not agree that the Second Defendant was an untruthful witness. She
readily admitted much of the criticism against her conduct
and it was
certainly not my impression in Court that she intended to give false
evidence. Certain of her actions or omissions were
indeed subject to
criticism, but it was not my impression during her evidence-in-chief
or cross-examination that she had lied about
the ventuse cup
detachments or about the administration of Pitocin, as Plaintiff's
Counsel would have it.
35.
It
is important to note what Plaintiff's state was, and that of the
foetus upon her arrival at 21h15. I have referred to what she
did and
what she did not do. It is common cause that at 21h15, when regard is
had to the evidence relating to the phone call of
Sister Bekker,
which was never in issue, that Plaintiff had been progressing well
and had strong contractions. One of the questions
that arises in this
context is: why would the doctor then resort to Pitocin? The relevant
hospital record with the heading "PARTOGRAPH",
indicates
that at 22h05 IVI was commenced. The document titled "CONDITION
OF PATIENT POST TRANSFER TO DELIVERY ROOM/THEATRE"
refers to the
"SECOND STAGE" form. It refers to "Pitocin in ll RV".
The signature next to that entry is not
of Second Defendant. In the
expert report of Sister Els, which led to the joint report by the
nurses that I have referred to, it
was stated that it was not
observed in the record keeping that the Pitocin five units injected
into the litre of Renous Lactate
infusion line at 2 2h05 was
discontinued when foetal distress was observed towards the initiation
of emergency foetal resuscitation
in-utero. There was no evidence who
had ordered the Pitocin, what the process was in obtaining it, and
who had injected it into
the infusion line at 22h05. It was not
recorded in the relevant record keeping that this infusion was
discontinued when foetal
distress was observed towards the initiation
of emergency foetal resuscitation in-utero, as the joint report of
the expert nurses
state. There is in my view on the available
evidence and record keeping insufficient grounds for holding that
Second Defendant
was not truthful when she said that she did not know
at the time of her arrival or thereafter that Pitocin had been
injected into
the infusion. Also, on her evidence she was in the
nurses' tearoom at about 20h00 that evening and was only called to
the delivery
room at about 22h08.
36.
Dr
Pistorius said the following in his expert report in this particular
context (par. 66 to 67): "66: It is unclear from the
records as
to when Molokoane made the decision to operate, but it must have been
shortly after the sequence of events which transpired
after starting
with her examination at 2 2h08. The birth only took place at 23h40
and whilst they were waiting for the anaesthetist
to arrive, and so
it would appear that they would not have been able to (and did not)
perform the procedure within the hour after
decision.
67:
Having regard to the indications of foetal distress, the possibility
of a c/ s should have been considered early and preparations
made
timeously. An anaesthetist and paediatrician should have been present
or on close call from early evening when the CTG tracings
were
showing possible distress. It was unacceptable that a period (of
seemingly an hour) elapsed while waiting for an anaesthetist,
when
they all knew that the foetus was in distress".
In
evidence Dr Pistorius said that the reference to "timeously"
in his report referred to the time between 20h50 and 21hl5,
and the
preparations referred to by him referred to the nurses.
37.
It
is common cause that an anaesthetist did not arrive within an hour
and it is also not in issue that he or she had still not arrived
at
the time of the baby's birth, or at any time thereafter.
38.
The
undisputed evidence of Prof Lotz, when being cross-examined by
Counsel for Second Defendant was that at 20h30 there should have
been
indications of foetal distress if proper observations had been made,
but at 20h50 there were definite indications of foetal
distress. I
asked him at that stage what he meant by that and he replied that he
meant "get the child out as soon as possible".
39.
Having
regard to the functions and duties of Second Defendant it is in my
view inexplicable, and certainly no attempt has even been
made to
explain it, how it could accept patients, who may or who may not,
require the services of an anaesthetist, without having
sufficient
arrangements in place for such to be on stand-by and actually be at
the hospital at the very least within an hour's
notice. I will return
to this topic.
40.
Counsel
for Plaintiff argued that it was the undisputed evidence of Prof Lotz
that the impairment to the baby's brain was global
near-total and
would have arisen over a period of at least three hours prior to
birth. As I have said, Dr Pistorius was also of
the view that an
anaesthetist should have been present or on close-call from early
evening, and in any event long before Second
Defendant arrived at the
hospital.
41.
It
is of course clear that negligence on the part of a medical
practitioner must be causily related to the result. It must be asked
whether a reasonably skilled and careful medical practitioner in the
position of a particular Respondent would have realised that
a
serious condition was developing or threatening and, if so, when such
practitioner would reasonably have come to realise this.
It must then
be asked whether there was remedial action which could reasonably
have been taken, and whether this practitioner would
have known of
it, and would have realised that it had to be taken. The resulting
question then is whether the remedial action,
if taken when the need
for it ought to have reasonably have been realised, would have
prevented the damage suffered by the particular
Plaintiff. Lastly,
the question then is whether the particular Respondent failed to take
remedial action.
See:
Blyth v Van den Heever
1980 (1) SA 191
(A) at 220
;
Kruger
v Coetzee
1966 (2) SA 428
A
.
42.
First
Defendant’s argument:
The
conclusion was that the damages
in casu
were caused
exclusively by negligence of the Second Defendant. I will deal with
the criticisms levelled against the Second Defendant
when I deal with
the argument on her behalf.
43.
Second
Defendant's argument:
In
the summary of admissions and denials that I have referred to, which
was handed up as an exhibit, Second Defendant admitted the
following
relevant allegations:
43.1.
That she had a general legal duty subject to the
facts that I will mention hereunder;
43.2.
She saw Plaintiff at 21h45 after nursing staff
contacted her and advised her of vaginal bleeding. She examined
Plaintiff and found
no complications. Contractions were strong. The
foetus was of average size. CTG was reassuring. Membranes were
bulging. Plaintiff
was fully dilated and draining clear liquid. She
was restless and pushing prematurely;
43.3.
She reassessed Plaintiff at 2 2h08, now fully
dilated. She was requested to bare down, but there was poor maternal
effort. Vacuum
was applied three times, but it slipped each time,
because of caput. Forceps were then applied, but could not lock to
head position.
FHR was 60 to 80 bmp and not improving. She then
called for an emergency caesarean section in the light of the
prolonged second
stage and failed instrumental delivery;
43.4.
Whilst waiting for the anaesthetist, Plaintiff
started bearing down and Second Defendant, assisted by a nurse,
delivered the baby
with an Apgar score of 3 /10. Resuscitation was
taken over by the paediatrician Dr Reddy;
43.5.
As far as grounds of negligence against the First
Defendant were concerned, Second Defendant referred to the joint
Minute of Plaintiff
and Second Defendant's nursing experts;
43.6.
Dr Shaik was the gynaecologist on call between
16h10 and 16h3 5;
43.7.
There was a lack of base line variability
according to CTG in respect of the period 21h00 to 23h25;
43.8.
The second stage of labour was prolonged;
43.9.
There was bradycardia (between 60 to 80 bmp) at
full dilation;
43.10.
There was 10cm dilation at 22h00 according to the
partogram;
43.11.
The partogram was incomplete;
43.12.
The MRI report of 2 April 2014 was admitted. In
respect of the report done jointly by Drs Pistorius and Sevenster, it
was said in
the same document that the reports could be handed in
subject to the reservation that Second Defendant was not a party to
the joint
Minute, and did not regard herself as being bound by it,
whilst at the same time being of the view that the opinions expressed
therein did not constitute admissible evidence. There was also no
objection to the joint Minute of the nursing experts being handed
in
subject to the reservation that evidence in that context was
necessary to enable a proper understanding thereof by the Court.
Second Defendant's view as expressed in the exhibit was further that
the hospital had failed to establish the reasons for the
complications, or at least should have alerted a doctor thereto with
a view to establishing such reasons. There is no record that
they did
so and accordingly it failed to act as good practice would require to
be done. She also agreed that First Defendant failed
to notice that
the foetus was suffering from intermittent foetal distress from as
early as 16h00 on the day of admission, or, if
they did, they failed
to act accordingly. It was further said that the hospital failed to
record the failed forceps delivery and
to take action to prepare for
a caesarean section. She added that the hospital failed to monitor
the foetal heart rate properly
which would have alerted them to
foetal distress, and failed to react to indications that the foetus
was suffering from such. In
regard to aspects of the joint Minute of
Drs Pistorius and Sevenster it was pointed out to me by Second
Defendant's Counsel that
in any event I was not bound by an opinion
expressed by an expert, be it during evidence or in a joint Minute.
Reference was made
in this context to
Van Wyk
v Lewis
1924 AD 438
at
447 to 448,
where the following was said by
Innes CJ: "The testimony of experienced members of the (medical)
profession is of the greatest
value in questions of this kind. But
the decision of what is reasonable under the circumstances is for the
Court; it will pay high
regard to the views of the profession, but it
is not bound to adopt them".
In
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at 1200,
it was said by GJurt that ...
"it is perhaps as well to re-emphasize that the question of
reasonableness and negligence is
one for the Court itself to
determine on the basis of the various, and often conflicting, expert
opinions presented. As a rule
that determination will not involve
considerations of credibility, but rather the examination of the
opinions and the analysis
of their essential reasoning, preparatory
to the Courts reaching its own conclusion on the issues raised".
44.
I
have already referred to Second Defendant's Counsel's submission that
I should not regard myself as being bound by paragraphs
16, 18, 19
and 21 of the joint Minute. The differences between the opinions
expressed by Drs Pistorius' report and the statements
in the joint
Minute must detract from his evidence, so it was submitted. The
argument was that despite this criticism, his evidence
and opinions
expressed by him in his report should be accepted insofar as they
were supported by evidence given at the trial. A
Court's approach to
opinions by medical experts has been dealt with in a number of
decisions and many of them were referred to
in
SS v Road Accident
Fund
[2016/ 3 ALL SA 637
{GP) at 664 par. 50.
At the end of the
day, the crux is that a Court must assess evidence not by scientific
standards, but by the legal standard of the
balance of probabilities.
In the present context the question is: what acts or omissions most
probably led to the child's brain
damage?
45.
When
did the foetus start experiencing foetal distress? In his report, Dr
Pistorius expressed the view that the foetus could have
been
suffering from foetal distress as early as 16h10 until 16h35. This
opinion was based on the 16h10 tracing. He also stated
that this
tracing showed marked lack of variability from start until about
16h35. This opinion was supported by the evidence given
by Prof Lotz,
and in his report he stated that the injury pattern suggested a
prolonged partial hypoxic ischaemic event. During
his evidence he
explained this, and stated that this event endured for approximately
three hours. As a result of poor record-keeping
by First Defendant's
nursing staff, one does not know what exactly happened from
approximately 17h00 until 20h30. However, based
on the CTG tracing
that was done from 20h50 to 21h05, and which also showed marked lack
of variability, Dr Pistorius said that
the foetus suffered from
distress from this time. In his evidence he expanded on this and
testified that a caesarean section ought
to have been performed at
this time. It was submitted that if regard was had to the vaginal
bleeding that Plaintiff experienced
at 20h30, the foetus on the
probabilities was suffering from distress at least from this time.
46.
The
causal connection between any act or omission by Second Defendant and
the result
Regarding
the test for negligence I have referred to this in par. 41 above. At
the end of the day, a Court must exercise a value
judgment in this
context. All the facts and circumstances of any particular case must
be taken into account. It will, for instance,
not be required of a
doctor who acts in an emergency situation to exercise the same level
of skill as a doctor acting under normal
circumstances. In this
context I was referred to
Mkhatswa v Minister of Defence
200 (1)
SA 1104
SCA,
with reference to
Sea Harvest Corporation (Pty)
Ltd v Duncan Dock Cold Storage (Pty) Ltd
2000
(1) SA 827
(SCA),
and the dictum of Scott JA that "It is probably so
that there can be no universally applicable formula which will prove
to
be appropriate in every case". The Court said that whether or
not conduct constitutes negligence ultimately depends upon a
realistic and sensible judicial approach to all relevant facts and
circumstances that bear on the matter at hand. What also needs
to be
emphasized is that what is required to satisfy any test for
negligence is
foresight of reasonable
harm.
Foresight
of a mere possibility of harm will not suffice.
In
considering whether Second Defendant acted negligently I was referred
to
Carstens and Pearmain, Foundational Principles of South African
Medical Law,
Lexis Nexis 2007,
where the following was
said at 63 9, par. 9.6.6: "The test of medical negligence, by
its very nature and scope, can never
be disentangled from the
particular facts of circumstances. For this reason it can he stated
that the degree of skill and care
required of a medical practitioner
will be dependent on the circumstances of each case. The alleged
medical negligence of a physician
cannot be assessed in isolation or
"in the air" and should only be considered in conjunction
with the objective and proven
facts in each case. This principle is
often referred to as "concrete negligence". In practical
terms, this rule of circumstance
refers to the place where the
medical intervention is formed (in essence the locality of practice),
the facilities available at
the hospital or clinic where the
operation or intervention is formed, the financial resources of the
hospital or clinic, the nature
of the medical operation or
intervention or medication, the difficult conditions or emergency
situations in which the medical intervention
or operation takes
place, and the particular predispositions, idiosyncrasies and
susceptibilities of the patient''.
The
learned authors give ample authority for this proposition, and I
agree with that approach. It is based on 'sound practical reasoning,
and is in any event in line with jurisprudential reasoning, namely
that value judgments must be made with regard to the
particular
circumstances of each individual case. This "rule of
circumstance" seems to have been acCE!pted by
Zondl JA in
Medi-Clinic v Vermeulen
2015 (1)
SA 241
SCA at 252 G to H
(par. 33)
where the following was said: "In conclusion, a
Plaintiff has suffered such terrible consequences that there is a
natural feeling
that he should be compensat13d but, as a Denning, LJ
correctly remarked in
Rowe v
Ministry of Health /1954/
2
ALL ER 131
(CA) at 139:
"but we should be doing a disservice
to the community at large if we were to impose liability on hospitals
and doctors for
everything that happens to go wrong. Doctors would be
led to think more of their own safety than the good of their
patients. Initiative
would be stifled and confidence shaken and
proper sense of proportion requires us to have regard to the
conditions in which hospitals
and doctors have to work. We must
insist on due care for the patient at every point, but we must not
condemn as negligence that
which is only a misadventure".
The
same approach had already been followed in
Castell v De Greet 1993
(3) SA
501 CPD at 509 h to 510 a.
47.
I
have already referred to Second Defendant's evidence and the call
made to her by Sister Bekker at 21h15, whom First Defendant,
for
completely unknown reasons, did not deem it necessary to call as a
witness. The note in the relevant record that Sister Bekker
made
supports Second Defendant's evidence.
It
was submitted that it was important to note that during this
conversation Sister Bekker informed her that the CTG tracing was
reactive. Both Dr Pistorius and Sister Hanrahan testified that
"reactive" means "normal" and Second Defendant
testified that that was how she understood it. Sister Bekker also
stated that she did not regard caesarean section as necessary.
I do
not know on which grounds Sister Bekker informed Second Defendant
that the CTG tracing was normal. In this context Dr Pistorius
said
the following in his expert written report: "The progress report
at 21h15 ... strangely mentions that the CTG was "reactive",
but makes no mention of the lack of variability which had constantly
been evident from the tracing which had previously run for
20
minutes, and had only ended some eight minutes before then. There is
no tracing on file regarding an observation of foetal condition
at
21h15, and no record to elaborate on this finding of an internal
"reactive" FH at 21h15, nor is there any other document
detailing any other aspect of foetal condition at this time".
Sister Hanrahan made the same observation in her report.
48.
It
was therefore submitted that there was no reason why Second Defendant
could not accept, and rely on, what Sister Bekker told
her during the
telephonic conversation. Sister Bekker was an experienced nurse and
her duties would have been, as I have already
said, to make and keep
clear and accurate records of all vital signs, reactions and progress
of pregnancy. A wilful or negligent
omission to keep clear and
accurate records of all actions which a nurse performs in connection
with a patient is in this instance
wrongful.
49.
Second
Defendant testified that after she had arrived at tl1e hospital at
21h45, she examined Plaintiff and did her own reading
of the CTG
machine from the screen. It was common cause that when the doctor
arrived at the patient's side, she was already 9cm
dilated and had a
strong urge to push prematurely. At 2 2h00 she was fully dilated
(10cm) and on the point of giving birth. I hav13
referred to her
evidence and the fact that after an examination of Plaintiff, she
went to the nurses' tea room as she had to wait
for a while before
delivery could proceed after she had ruptured the membranes. It is
not in dispute that she was called back to
the patient's side by
Sister Bekker at 22h08. Plaintiff was pushing without any result.
In-between this pushing, the CTG monitor
was put on Plaintiff's
stomach. The reading was between 60 to 80 beats per minute. She
realised that the foetus was compromised
and that delivery had to
take place as soon as possible. At that time she was aware that
delivery by means of a caesarean section
would take at least another
hour. She accordingly decided that delivery had to be expedited by
means of assisted delivery and informed
Plaintiff thereof. I have
mentioned the ventuse and forceps procedure. She was told by Sister
Bekker that there was a problem in
arranging the caesarean section as
an anaesthetist was not on site and had to be called. Evidence was
that she instructed Sister
Bekker to make the arrangements for a
caesarean section at approximately 22h40. She denied that she had
prescribed Pitocin at any
stage, but I must add, that in any event
there was no evidence at all what the probable result would have been
l1ad she either
not prescribed Pitocin, or discontinued its use at
some stage. The record indicates that it was introduced at 2 2h05 at
a time
when Plaintiff was at the point giving birth.
She
testified that after attempting to perform an assisted delivery, a
CTG tracing was commenced. The foetal heart rate had improved
slightly. At one time, although the time is not recorded, it was
about 120 beats per minute. Dr Pistorius mentioned this in his
report. A print-out of the CTG tracing was available from 23h25. This
print-out shows late decelerations and lack of variability,
confirming a severely compromised foetus.
Whilst
waiting for the anaesthetist, Plaintiff started pushing again and the
infant was born at 23h40. Second Defendant testified
that by that
time the assistant had arrived, but not the anaesthetist. In fact, it
is not disputed that the anaesthetist, who was
also never identified,
never arrived while Second Defendant was at the hospital. It is a
fact thereof that Second Defendant could
not have performed a
caesarean section after 23h00, or at any time after her arrival at
21h45.
50.
It
was submitted that Second Defendant's decision to proceed with the
vacuum assisted delivery after she observed the foetal bradycardia,
was not unreasonable under the circumstances. Both Prof Lotz and Dr
Pistorius testified that it was essential to expedite delivery
once
there were signs of foetal distress. It was submitted that I must
bear in mind that when Second Defendant had to decide whether
to
attempt an assisted delivery or arrange for a caesarean section, she
was aware that it would take at least an hour to make arrangements
for such. Her evidence in this regard is supported by the undisputed
fact that even after 23h40 on that particular night, the anaesthetist
had not arrived. In considering the reasonableness of Second
Defendant's decision to proceed with the assisted delivery, I was
referred to what was said in
Castell v De Greet supra
at 511
to 512 B: "It must not be overlooked that, even if it were to be
shown that the Defendant's decision, involving as it
did a clinical
judgment, turn out to be the incorrect one, it would not necessarily
follow that on this account he was negligent.
Indeed, a practitioner
is not to be held negligent merely because the choice made or the
course he took turned out to be the wrong
one".
51.
It
was submitted that even if Second Defendant could justifiably be
criticized for proceeding with the assisted delivery by n1eans
of
ventuse and forceps, her evidence was that she instructed Sister
Bekker to arrange for a caesarean section after the ventuse
had
slipped twice, It was only alter Sister Bekker reported that there
were problems in arranging the procedure that she applied
the ventuse
for the third time. I have dealt with the attempt to apply forceps.
The fact that Second Defendant proceeded with ventuse
and forceps
delivery procedures when they were not indicated, were pleaded as a
separate ground of negligence in the Particulars
of Claim.
As
I have said, Second Defendant was of the view that the child had to
be delivered urgently. She decided upon the assisted delivery
procedure whilst at the same time (be it after the second or third
attempt) asking Sister Bekker to arrange for an Emergency caesarean.
She made a decision on a basis of the particular circumstances, and I
do not deem this to be negligent conduct. At the same time,
it must
be remembered in the context of causation that in any event no
anaesthetist was available, either at that time or at any
other time
that night, and it is clear that even if the ventuse forceps
procedure had not been decided upon by Second Defendant,
the result
would probably have been the same. The child was born at 23h40.
Drs
Pistorius and Sevenster were in agreement that the severe foetal
bradycardia of 60/ 80 beats per minute, which occurred before
the
ventuse was applied for the first time, was indicative of severe
foetal distress and was, said Dr Pistorius in his report,
probably
the main reason for the negative outcome. It was therefore submitted
that there was no evidence on which I could find
that the third
attempt with the ventuse, or the forceps, contributed to the negative
outcome.
52.
As
far as causation was concerned, I was referred to the decision of
Chapeikin v
Mini 2016.IDR 1324 (SCA) of 14 July 2016.
The
test to be applied to the question of causation is the "but-for'',
as formulated in
lnternational Shipping Company (Pty)
Ltd v
Bentley
1990 (1) SA 680
(A) at 700 E to J.
In
ZA v Smith
2015
(4) SA 574
(SCA) at P•1r. 30,
the following was said:
"What [the but-for test] essentially lays down is the. enquiry -
in the case of an omission ·-
as to whether, but for the
Defendant's wrongful and negligent failure to take reasonable steps,
the Plaintiff's loss would not
have ensued. In this regard this Court
has said on more than one occasion that the application of the
"but-for test"
is not based on mathematics, pure science of
philosophy. It is a matter of common sense, based on the practical
way in which the
minds of ordinary people work, against the
back-ground of everyday-life experiences. In applying this common
sense, practical test,
a Plaintiff therefore has to establish that it
is more likely than not that, but for the Defendant's wrongful and
negligent conduct,
his or her harm would not have ensued. Plaintiff
is not required to establish a causal link with certainty..."
The Constitutional
Court has also recently affirmed the continued
relevance of this approach to causation.
See:
Mashongwa v Passangar Rail Agency of South Africa
2016 (3) SA 528
(CC},
par. 65.
53.
As
far as the question of Pitocin was concerned, it was submitted that
there was no reason to reject Second Defendant's. It might
well be
unusual for a nurse to administer Pitocin without instruction from a
doctor to do so. In the present case, if regard is
had to the
criticism expressed by the nursing experts as to the conduct of the
nurses, it cannot be assumed that they would have
abided by what was
customary or not. One did not know which nurse made the note relating
to the introduction of Pitocin. One did
not know whether the time
recorded was recorded contemporaneously. One did not know what effect
it had over any period of time,
how much was in fact administered,
and for how long, and in fact one knew very little, except what
appears in the particular note,
which in any event contains hearsay
evidence.
54.
Regarding
other criticisms levelled against the conduct of Second Defendant, it
was argued that in the context of intra-uterine
resuscitation, she
did testify that she started such after the attempts with the ventuse
failed. I am not able to find after having
listened to Second
Defendant's evidence as a whole, that she was untruthful, be it in
this context or any other. She explained
that when she consulted with
her legal advisors for purposes of a plea, she did not refer to each
and every item of criticism levelled
against her. but merely gave a
summary of the events of the evening. There was also no evidence that
mc1re than 1/5 of the foetal
head was above the pelvic rim, and the
criticism of Ors Pistorius and Sevenster in their joint Minute was
never put to her for
comment.
55.
It
is clear from the reports of Sister Hanrahan and joint Minute of the
nursing experts, that there was a failure on the part of
First
Defendant's nursing staff to keep proper records. It is also
abundantly clear that according to the opinions of Dr Pistorius
and
Prof Lotz, and their evidence, foetal distress occurred during the
late afternoon or early evening that day. In any event,
it was well
before the Second Defendant arrived at Plaintiff's bedside. Had
proper observations been made and proper records kept
and proper
actions taken, a doctor ought to have been called by the nurses well
before 21h00, and a caesarean section during that
period, would
probably have avoided the ultimate result or lessoned the effects of
repeated foetal distress.
56.
There
is therefore sufficient acceptable medical evidence before me to hold
that First Defendant's nursing staff was negligent in
the respects
that I have discussed in some detail, and upon which the expe1t
nurses agree, and that this negligence caused the
cerebral palsy
eventually suffered by Plaintiff's baby. In fact, all indications are
that the foetal distress was present from
16h10, yet the nursing
staff took no steps to investigate the lack of variability in the
tracing and to obtain advice in regard
thereto from an obstetrician.
It is common cause that the foetal heart rate should have been
monitored every half hour. Yet, it
was monitored only on three
occasions, namely at 16h50, 20h30 and 21h15. Vaginal bleeding was
observed at 20h30, which was not
mild according to Plaintiff, but
there was no indication that the foetal condition was monitored. In
the light of the next tracing
that only commenced at 21h15, foetal
distress increased as from that time, requiring urgent attention. Dr
Pistorius stated in his
evidence that Sister Bekker ought to have
made arrangements for a caesarean section at least between 20h00 and
21h00. This view
was not challenged, and he added that had
intra-uterine resuscitation been applied during this period, the
episode of bradycardia
would probably have been avoided. Furthermore,
the failure on the part of Sister Bekker to inform Second Defendant
that three available
CTG tracing in fact show lack of variability
coupled with bleeding, necessitated a caesarean section, was clearly
negligent. I
agree with that submission.
57.
In
my view therefore, having regard to the evidence on a holistic basis,
I find that the negligence of the First Defendant's nursing
staff was
the sole cause of the cerebral palsy suffered by the baby.
58.
The
following order is therefore made:
1.
It is declared that First Defendant is
liable to Plaintiff for the proven or agreed upon damages suffered by
her in her personal
capacity, and in her capacity as guardian and
mother on behalf of her minor child O. M.;
2.
First Defendant is ordered to pay the
costs of the action including the costs of Second Defendant;
3.
The parties are given leave to approach me
within 30 days of this order for a more detailed order relating to
costs.
_______________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE HIGH COURT GAUTENG DIVISION, PRETORIA
Case
number: 53151/ 2015
Counsel
for the Plaintiff:
Mr G. W. Austin
Instructed
by: Gary Austin Inc
Counsel
for the 1
st
Defendant:
Adv D. Prinsloo
Instructed
by: ODBB Inc
Counsel
for the 2
nd
Defendant: Adv P. P.
Delport SC
Instructed
by: MacRobert Inc
Date
of Hearing: 25 - 2 7 October 8:
31 October 2016
Date
of Judgment: 9 December 2016 at 10:00