M obo M v Member of the Executive Council for Health (65228/2012) [2015] ZAGPPHC 1139 (2 March 2015)

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[2015] ZAGPPHC 1139
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M obo M v Member of the Executive Council for Health (65228/2012) [2015] ZAGPPHC 1139 (2 March 2015)

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REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
Not
reportable
Not
of interest to others judges
Date:
02/03/2015
Case
no: 65228/2012
In
the matter between:
M.,
P. P.
(on
behalf of
K. N.
M.)

Plaintiff
and
MEMBER
OF THE
EXECUTIVE
COUNCIL
FOR
HEALTH

Defendant
JUDGMENT
AC
SASSON, J
Introduction
[1]
This is a case about alleged medical negligence. The plaintiff has
instituted action on behalf of her minor son (K. M. - "K.")

against the defendant both in her personal and representative
capacity as the natural mother and guardian of her minor son who
was
born on [.......] 2005.
[2]
The defendant is the Member of the Executive Council for Health for
the Provincial Government of Gauteng and is responsible
for the acts
by the Department of Health and its employees acting within the
course and scope of their employment in the Health
Department.
[3]
K. was born at the Natalspruit Hospital ("the hospital")
which is a hospital falling under the jurisdiction and control
of the
defendant.
[4]
In brief, the plaintiff is claiming damages for the alleged negligent
medical treatment received at the hospital. More in particular,
it is
alleged that the nursing staff at the hospital was in the negligent
breach of their duty of care to the plaintiff and K.
in that they
failed to provide medical services at a standard that would be
expected from such hospital; that they failed to monitor
and observe
the plaintiff during labour and that they left the plaintiff
unattended at a time when it should reasonably have been
foreseen
that she was about to give birth. The plaintiff further alleged that
as a result of having been left unattended when she
was admitted to
the labour ward of the hospital, the nursing staff allowed the
new-born infant to fall to the floor after the plaintiff
had given
birth to K. whilst she was lying in the so-called lithotomy position
on the delivery bed. As a result of having allowed
the baby to be
born whilst the head and neck of the baby were not managed and/or
supported whilst exiting the birth canal and falling
to the floor
under the forces of expulsion and gravity, K. suffered a permanent
and total impairment in the form of a dense hemiplegic
"Presumed
Perinatal lschaemic Stroke" resulting in cerebral palsy. (I will
return to a more detailed summary of the facts
hereinbelow.)
[5]
This Court is only seized with the merits and causation. In the event
that the plaintiff is successful with the initial merits,
the issue
pertaining to the quantum for the alleged damages will stand over for
later determination.
[6]
K. was born on [.......] 2005 at 7h35. It is common cause between the
parties that there were no nursing staff present at the
time when the
plaintiff delivered K.. The height of the bed on which the plaintiff
was lying was 1,2m at the time of the birth.
Although it was common
cause that the plaintiff delivered her baby unassisted, it was in
dispute whether the birth took place whilst
the plaintiff was lying
in a lithotomy position on the bed (as alleged by the plaintiff) or
whether the birth took place when the
plaintiff was in a squatting
position on the floor (as alleged by the respondent). The respondent
pleaded that the plaintiff gave
birth on the floor whilst in a
squatting position and that it was, therefore, unlikely that K. could
have suffered from a stretch
injury to his neck.
[7]
It is also common cause that the notes pertaining to the labour and
perinatal care are scant and that they are also contradictory.
(I
will return to this aspect herein below where I refer to the evidence
of Ms Hanrahan.)
[8]
At approximately 20:15 - shortly after his birth - K. was examined by
a medical practitioner who found nothing abnormal. No
visible
injuries to the head were found and no congenital abnormalities were
noted. Although the extent of limb movement is not
clear from the
doctor's notes, nothing untoward was noted. It was common cause that
the examination at that stage is basic from
a neurological
perspective in the sense that essentially brainstem functions were
assessed but not cortical functions. Dr Edeling,
the expert
neurologist who testified on behalf of the plaintiff explained that
the cerebral cortex is concerned with learning,
movement,
concentration and decision-making. Typically, these functions are
more associated with adults. When a baby is born, it
is difficult to
determine whether the baby's cortical functions are functioning
because they are not actually active at that stage.
[9]
It is common cause that K. had suffered from a "Perinatal
Arterial lschaemic Stroke". It was also not in dispute that
K.
suffers from cerebral palsy as a result of the stroke. It is for this
reason that Dr Edeling explained why the doctor would
only have been
examining essentially brainstem functions. The examination was
therefore confined to brainstem functions and not
to the status of
the baby's cerebral cortex. It is for this reason that lesions in a
child's brain will only manifest or be noticed
at a later stage. As
will be pointed out herein below, the two CT brain scans that were
taken of K. on 14 March 2006 and 7 August
2012 show extensive right
side cerebral infarction.
[10]
A
perinatal
stroke
may
result
in
damage
to
cerebral
tissue
and
may
result
from a
disruption
to blood
flow in
a major
cerebral artery caused by
a
thrombosis
or
embolism. A stroke which
occurs
within the first 28 days after the birth is normally referred to as a
Perinatal Stroke.
[1]
The
incidence of PAIS is reported
as one
in 2 300 -
2 400
deliveries.
[2]
These figures
show that
this kind of a strike is considered to be rare.
[11]
In the event that this Court finds as a fact that the plaintiff
delivered K. whilst lying on the bed in a lithotomy position,
the
question then arises whether the unassisted delivery of K. and his
subsequent falling on the floor caused a stretch injury
to K.'s right
carotid artery and whether this injury (by falling from the bed onto
the floor in an unassisted birth) caused the
perinatal stroke
suffered by K.. It, therefore, falls to be decided whether the
conduct of the nurses in failing to assist the
plaintiff during the
delivery process is causally linked to the subsequent Perinatal
Stroke suffered by K. which resulted in him
suffering hemiplegic
cerebral palsy.
[12]
The dispute in this case essentially hinges on what caused the
Presumed Perinatal lschemic Stroke: Was the stroke suffered
by K. as
a result of respondent's negligence in that the plaintiff was left
alone by the nursing staff of the Natalspruit Hospital
when she gave
birth to K. on [.......] 2005 or was the stroke was caused by medical
factors unrelated to the unassisted birth.
Experts called on behalf
of both sides differed on the cause or most likely cause for the
stroke although, as already indicated
they are
ad idem
that K.
did suffer a stroke at the time of his birth. What makes this matter
difficult to decide is the fact that no medical personnel
was present
when the plaintiff gave birth and therefore no direct evidence of an
excessive deflection of the head to the shoulder
which may have
caused the injury to the carotid artery in K.'s neck exists.
Facts
pertaining to the delivery of K.
[13]
It is common cause that on 21 April 2005 at 11h33, the plaintiff (who
was 42 years old at the time) was admitted to the Nelspruit
Hospital
after she was referred to the hospital by her local antenatal clinic.
The plaintiff testified that she suffered from diabetes
which, as
will be pointed out hereinbelow, is considered by the experts on
behalf of the respondent to be highly relevant in determining
the
most likely cause of the injury to K.'s carotid artery. If regard is,
however had to the records of the antenatal clinic, the
plaintiff's
urine was tested on at least four occasions in the months prior to
her confinement. All of the records indicate that
the plaintiff did
not suffer from maternal diabetes. No medical evidence was therefore
placed before the Court apart from the plaintiff's
say so. Despite
the fact that no medical evidence of diabetece was placed before the
Court, the defendant still insisted that diabetece
could have been a
likely course for the stroke. (I will return to this aspect
hereinbelow).
[14]
On admission the plaintiff was admitted to the main ward. The last
entry made on 21 April 2005 was made at 15h00. On [.......]
2005 -
approximately eighteen hours later - an entry appears on the
"Doctor's/ Midwives' Notes" stating that the plaintiff
was
seen by Dr Pitsoe and given a drug called "Cytotec" to
induce her labour. The next entry shows that the plaintiff
was
transferred to the labour ward at 18h50.
[15]
When the plaintiff was transferred to the labour ward she was placed
on a (hospital) bed. It is common cause that the bed was

approximately 1.2 meters from the ground. According to the plaintiff
she was placed in a lithotomy position which involves the
positioning
of a patient's feet in stirrups above or at the same level as the
hips. She testified that she was shifted to the front
edge of the
bed. The plaintiff testified that one of the nurses mentioned that
she (the plaintiff) was already 6cm dilated and
that she was already
pushing with each contraction. The plaintiff was discouraged from
pushing and was thereafter left unattended
until the plaintiff "felt
the urge to pass a stool". When she pushed it resulted in the
spontaneous delivery of the infant.
According to the "Summary of
Labour" the second stage of the delivery took two minutes. The
plaintiff explained that
because her feet were in stirrups, she was
unable to move and was particularly unable to move her body upwards
on the bed. Because
her buttocks were on the edge of the bed, K. fell
to the floor. She testified that she screamed but that no one came to
assist
her until after K. was born and had fallen to the floor. She
testified that the umbilical cord had torn when K. fell to the floor.

(I have already referred to the fact that it was common cause that
the birth was unassisted and that the plaintiff was completely
alone
at the time of the delivery.)
[16]
The defendant disputed that the plaintiff was placed in the lithotomy
position and contended that there was no reason for her
to have been
placed in a position reserved for difficult births where the
doctor/midwife must have unrestricted access to the patient's
pelvic
area. The plaintiff was, however, adamant that she was lying on the
bed in the lithotomy position when she gave birth and
denied that she
was in a squatting position on the floor (as alleged by the
defendant) when the baby was born. (I will return to
this dispute
herein below.) According to the plaintiff the sisters were lying
about the fact that she had been placed in the lithotomy
position to
cover up the fact that she had been left to give birth unassisted and
that as a result of her having been unassisted,
the baby fell from
the bed to the floor.
[17]
The plaintiff testified that she did not notice anything wrong with
K. at the time of his birth and that she only noticed after
a month
that something was wrong with him. She was then referred to the
hospital where x-rays were taken of K.'s head. It was then
that she
wrote a letter to the hospital. In this undated letter, the plaintiff
directed a complaint to the hospital. She states
that she was 6cm
dilated at the time and that she could not stand the pain anymore and
that she then pushed. The baby was delivered
whilst she was
unattended. By the time the sisters came, the infant was already on
the floor. She further states that she later
found that the infant
could not use his left arm and that the arm was twitching. She wanted
to know what the hospital was going
to do about this. In this letter
of complaint, the plaintiff makes no mention of the fact that she
delivered the baby whilst lying
on the bed in a lithotomy position.
[18]
When Sister Sikhakane return to the labour ward, she discovered that
the plaintiff had already delivered the baby. The baby
was picked up
from the floor by Sister Sikhakane and wrapped. As already pointed
out, the baby was examined by a medical practitioner
who found
nothing abnormal and was found to be active and alert. There is no
recording on any medical records of any external visible
traumatic
injuries to the head and no congenital abnormalities were noted.
[19]
Sister Sikhakane completed a few forms immediately after the birth. I
have already pointed out that the hospital records are
scant and in
some aspects even contradictory. Conspicuously absent from the
hospital records is any reference that a partogram
was taken which
should be used to record sequential vaginal dilation. In fact, it was
common cause that this form was not kept
by Sister Sikhakane (or any
other nurse) during the labour process despite the fact that it was
common cause between experts that
the information recorded on this
form is vitally important to monitor the progress of labour. (I will
return to this aspect hereinbelow.)
[20]
Sister Sikhakane also competed the so-called APGAR score chart which
is used to monitor/score the heart rate, respiratory efforts,
muscle
tone, reflexes and colour of the neonate at a one minute, five minute
and 10 minute interval. Each of the aforementioned
indicators should
be evaluated separately at each of the three intervals. Sister
Sikhakane merely gave an overall score and not
a separate a score as
is required for all three periods. She gave K. a 10/10 score - a
perfect score. (I will return to the defects
in the APGAR scoring in
more detail hereinbelow.)
[21]
It is not necessary to refer to all the hospital records in detail as
they are in general not helpful in deciding the dispute.
However, the
following two extracts from the hospital records are important: The
plaintiff - in her own handwriting -made an entrance
on
"Doctor's/Midwive's Delivery Notes" where she stated as
follows:
"I
Prudence Molefe would like to confirm that on this date of delivery I
felt if I want to take stools only to find out that
the baby came
out."
She
also signed the statement. Immediately after this entrance, Sister
Sikhakane records that the plaintiff "delivered herself

unattended, Baby fell on the floor an alive male".
Ms
Hanrahan
[22]
Ms Hanrahan was the first expert called on behalf of the plaintiff.
She is a qualified nurse and has been a midwife for the
past 35
years. She is also a nurse and perinatal educator and holds a
Master's Degree in midwifery. She is currently busy with
a PHO in
Midwifery and teaches midwifery at the University of the
Witwatersrand. She explained that her expertise is limited to

midwifery care that is given prenatally and during labour and that
she is not a Neonatologist.
[23]
She testified that she had access to the hospital records and that it
was her opinion that the notes were very intermittent
and that,
according to her, there appeared to have been no continuity of care.
According to her, the plaintiff received insufficient
monitoring and
generally that there is evidence of sub­ standard practices. The
notes show that there was very limited foetal
heart monitoring. In
fact, according to her, the hospital records were in general not
accurately completed.
[24]
Ms Hanrahan confirmed that the lithotomy position was normally only
reserved when there was a complication and where there
was a need to
assist the baby's delivery using a forceps of a vacuum. She explained
that this position was not an automatic position
a woman would be put
in as this position meant that a patient had to move her buttocks to
the edge of the bed which then restricts
her movement. A patient
would only normally be placed in the lithotomy position if she had an
epidural or if she was considered
to have a high risk birth. This
position does not allow a patient to give birth in a fairly normal
position on the bed. She also
explained the importance of a partogram
during the progress of labour as this is used to monitor maternal
foetal wellbeing, the
progress of labour and will indicate whether
any extraordinary care was needed. She also explained that a
partogram monitors whether
the cervix is dilated and the progress of
cervix dilatation. Especially where there is a prolonged labour, the
partogram will be
able to show whether there are any problems with
the mother and/or the baby. The partogram will also be used to assess
how quickly
the birth was progressing and whether it was anticipated
that the birth was progressing at an accelerating pace.
[25]
Ms Hanrahan expressed her concern about the fact that a women who was
only 6 cm dilated would have been placed in a lithotomy
position
because this position makes it very difficult for the patient to
control her breathing and the actual birth of the baby.
Because this
position opens up her pelvis position the baby will be born if she
pushes.
[26]
She also explained the process of delivering the placenta with
reference to the South African National Guidelines for Maternity

Care. If the placenta is "actively" delivered, the mother
is given an Oxytocin injection to induce the delivery of the

placenta. In the case of a "passive" delivery of the
placenta, the mother is not injected with Oxytocin and the placenta

will be delivered without any drugs assisting the uterus to contract.
In the case of a passive delivery, the midwife has to take
extra care
to ensure that the mother does to suffer from postpartum haemorrhage.
She explained with reference to Sister Sikhakane's
notes that it is
difficult to determine whether the placenta of the plaintiff was
delivered actively or passively as the notes
show on the one hand
that there was an active delivery but on the other hand that there
was a passive delivery. Dr Hanharan explained
that not only is this
contradictory, it also does not show an accurate recording of the
third stage of labour.
[27]
According to the expert opinion of Dr Hanharan as a midwife, a baby
should be supported when he is born and that the midwife
or doctor
should support the neck of the baby and then the head will turn and
allow the shoulders' delivery. She explained that
this method of
delivery is a national standard. She explained that a woman can
deliver independently without a midwife present
if it is a completely
straightforward, uncomplicated delivery. It does not therefore follow
that where a woman gives birth unassisted
that the neck of the baby
is likely to be injured. She also explained that because many births
are unattended by skilled birth
attendants, it is not known if there
was an injury to the neck and therefore the extent of the injury per
population is not known.
She also testified that no evidence was
presented to her to confirm that upon exiting the birth canal, there
was an excessive deflection
of K.'s head towards his shoulder (and
which resulted in an injury). She, however, insisted that it was
possible that the baby's
neck could have been injured during an
unattended birth.
Dr
Herman Edeling
[28]
Dr Edeling was the second expert witness called on behalf of the
plaintiff. He has an MBBChB degree from Witwatersrand University
and
holds has a fellowship from the South African College of Medicine in
Neurosurgery.
[29]
Dr Edeling explained that he had perused all the documents pertaining
to K.'s birth and that he had noted that the birth was
unattended by
medical personnel. He also confirmed that the notes pertaining to the
labour and perinatal phase were scant and in
fact contradictory. He
referred to the records of the examination of K. by a general
practitioner shortly after his birth and noted
that the general
practitioner found no congenital abnormalities. Dr Edeling explained
that this type of examination was a basic
one from a neurological
perspective in that only essential brainstem functions would have
been assessed and not cortical functions.
I have already referred to
the evidence of Dr Edeling where he explained that when the baby is
born, one cannot really determine
whether the baby's cortical
functions were in fact functioning because they are not actually
active at that stage. In other words,
no conclusions can be drawn
from the fact that the examination of K. shortly after his birth
showed him to be normal as this examination
gave no information about
the status of a child's cerebral cortex. Dr Edeling explained that it
is in fact possible that brain
damage, although it had already
occurred at the time of the birth and examination in the hospital,
only manifests at a later stage.
[30]
Dr Edeling referred to two CT brain scans that were done on K.: One
was done on 14 March 2006 and the other one on 7 August
2012. Both
scans showed extensive right side cerebral infarction. The 2012 scan
particularly shows tapering of the right middle
cerebral artery
distally and shows that the posterior and anterior cerebral arteries
are decreased in size compared to the normal
left side.
[31]
Dr Edeling explained that the areas of K.'s brain that are
damaged/infracted normally receive their blood supply from three

arteries: the right anterior cerebral artery, the right middle
cerebral artery and the right posterior cerebral artery. These three

arteries provide blood to the portions of the brain that had been
shown in three consecutive studies to be the damaged infracted
area
of the brain. He explained that this infarction came about as a
result of lack of blood flow. In his expert opinion the brain
damage
was not caused by a direct blow to the head or as a result of other
trauma or as a result of haemorrhage but as a result
of lack of blood
flow in these three arteries. Put differently, the brain damage
occurred as a result of a
vascular
injury
which
affected the posterior, middle and anterior cerebral arteries on the
right side of K.'s neck and not as a result of an injury.
[32]
In respect of the anterior cerebral, middle cerebral and posterior
cerebral arteries which are affected, Dr Edeling explained
that these
three arteries are all supplied with blood by the right common
carotid and internal carotid arteries. In other words,
blood flows
from the heart into the aorta and from there into the common carotid
artery which leads into the internal carotid artery.
From there the
carotid artery splits into the three arteries referred to herein
above.
[33]
Referring to MRI scan Dr Edeling testified that the most likely cause
of brain damage was a vascular injury to the right common
carotid
artery and also the right internal carotid artery. He referred to the
fact that it was common cause that the scan showed
extensive right
side and cerebral infarction (or brain damage due to a lack of blood
supply). He explained that he had eliminated
the possibility that the
brain damage could have been the result of another traumatic event on
the basis that no evidence of such
a traumatic event is present: If
there was some kind of brain concussion at the time of the birth or
shortly thereafter, the baby
would have been drowsy or sleepy or even
unconscious. In any event, an injury could not have caused direct
damage to these three
arteries without also causing damage to the
brain surrounding these three arteries. No such evidence exists. He
also pointed out
that there are also no evidence of instruments
having been used such as forceps or vacuum during the birth that may
have been the
cause of the injury to K.'s neck.
[34]
Dr Edeling, accordingly, concluded that, because the common point of
origin of these three arteries is the internal carotid
artery that
comes up from the neck, it was pathologically more likely that damage
had occurred to the internal carotid artery and
that this damage
caused downstream damage to the interior, middle and posterior
cerebral arteries. In K.'s case, three consecutive
studies have shown
that these three arteries provide blood to the portion of the brain
that had been shown to be the damaged brain.
The damage to the brain
is a cerebral infarction which came about as a result of a lack of
blood flow.
[35]
Dr Edeling explained that an infraction means brain damage through
lack of blood supply. In this case, the cause of the brain
damage is
as a result of a lack of blood flow in the three arteries referred
too. He concluded that the most likely cause of brain
damage is a
vascular (or stretch) injury to the right common carotid artery
and/or right internal carotid artery. Stretching of
the neck can
cause artenal stenosis (narrowing) of the carotid arteries. Small
tears form in the innermost lining of the arterial
wall. Blood is
then able to enter the space between the inner layer and the other
layers of the vessel wall, causing narrowing
or even complete
occlusion (blockage). Blood flow to the brain is then compromised and
can cause lshcaemia (lack of delivery of
oxygenated blood to the
brain). As already pointed out, he arrived at this conclusion as
there is no evidence of haemorrhage or
fractures of the skull which
would have pointed to direct blunt force trauma. He also explained
that the radiological picture of
the brain is consistent with
vascular damage to the three arteries referred to. Pathologically it
is therefore in his opinion more
likely that the damage occurred to
the internal carotid artery (although it could have been the common
carotid artery but more
probably the internal carotid artery) and
that this injury to the internal carotid artery caused downstream
damage to the anterior,
middle and posterior cerebral arteries.
[36]
Having eliminated the possibility that the injury could have been
caused by trauma to the head Dr Edeling explained what may
have
caused this lack of blood flow to these arteries. He explained that
an excessive deflection or twisting of the head and neck
in relation
to the shoulders could have placed of necessity some stretching on
the neck and it is considered that such movements
have probably
caused a stretch injury to the right carotid artery in its course
through the neck. He explained that if the amount
of deflection of
the head in relation to the shoulders is sufficient, it can cause
stretch injury of the carotid artery:
'Such
injuries can arise for example, from stretching of the neck in a
newborn when the head is not supported as gravity pulls it
down, or
where the neck is stretched by an external force to the head, (e.g
when jerked to one side.
In casu
a head abutting the floor
while the rest of the body continues to move)'
[37]
Dr Edeling explained that he had regard to the following facts
presented to him in arriving at this conclusion: The birth was

unattended whilst the mother was on the birth table with her legs
spread and strapped. Due to the fact that the birth was unassisted,

the head would have been unassisted when it exited the birth canal.
When K. emerged from the birth canal, he fell to the floor.
Dr
Edeling's explained that if this is what had actually happened a
stretch injury was more likely than any other potential cause
for the
injury especially in circumstances where the birth was rapid and
unattended. Although a stretch injury can be cause by
a mechanical
birth there is no evidence of a mechanical birth in this case: Where
a forceps or vacuum is used in assisted delivery
a stretch injury can
occur. An arterial stretch injury is also associated with precipitate
vaginal birth without the involvement
of instruments. In both these
cases, an injury can result if there is an unnatural stretch of the
neck. According to the hospital
records the birth was extremely
rapid.
[38]
Dr Edeling was therefore of the view that the most likely diagnosis
of K.'s condition was one of "perinatal ischaemic
stroke".
He explained that a stroke is an encompassing term and that it can
also include a stroke referred to as a "haemorrhagic
stroke".
In K.'s case, he did not suffer from a haemorrhage stroke but from an
lschaemic Stroke. In K.'s case, he suffered
from a Presumed Perinatal
lschaemic stroke: If the stroke occurs in the perinatal period, then
the stroke will be referred at as
a confirmed perinatal stroke. Where
the hemiparesis is only noticed a month or two months later (as in
the case here) and if it
is believed that it was as a result of an
event that occurred around the time of birth (although it only
manifested later), this
type of stroke will be referred at as a
"presumed" perinatal stroke. In K.'s case, the onset of
paralysis was only noticed
later.
[39]
Dr Edeling concluded that the fact that the birth occurred unassisted
makes it reasonable to conclude that the head would have
been
unsupported when it exited birth canal. An unsupported head would
have brought about a number of mechanisms for an arterial
stress
injury to have arisen. The rapid progress in second stage of labour -
as was documented in this case - would have increased
the risks as
the forces of expulsion of the foetus would have been greater. This
type of injury can also occur if the head hit
the floor as this will
cause the neck to be stretched following the impact. Dr Edeling
explained that considering the radiological
evidence and examination
findings of the doctor at birth, he was of the view that the brain
damage did not, however, occur as a
result of a direct blow to K.'s
head when he hits the floor. The injury was as a result of vascular
stretch injury to the neck.
He considered this cause of the injury as
highly possible. In this regard Dr Edeling explained in detail what
happens when a baby
emerges from the birth canal whilst the mother is
lying on her back. He explained that when the head of a baby clears
the birth
canal the head will be pulled down to the left by gravity
as gravity pulls the head down. Because the shoulders of the baby are

not yet free as they are still in the birth canal, the head will
deflect. The direction of the head deflection is brought about
by
gravity which will cause the neck to stretch on the right side of the
neck especially in cases where the birth is rapid (as
in this case).
This may result in the soft tissue in the right side of the neck to
stretch including the carotid arteries. He explained
that the fall of
the baby may have been broken by the traction of the umbilical cord
and that this may explain why there were not
any visible injuries to
K..
[40]
Dr Edeling further concluded that the fact that all three cerebral
blood vessels were damaged and were on the same side makes
it highly
unlikely that the causative pathology was systemic: If there were
systemic factors present, that risk would have applied
equally to the
left and right sides of the brain and both sides of the brain would
likely have been affected.
[41]
Dr Edeling was asked to explain how he arrived at his conclusions. He
explained that although it may not be immediately evident
what the
cause of cerebral palsy is, because in many cases the cause of
cerebral palsy is unknown, paediatricians and neurologists
will take
a history of the patient and will investigate possible causes of the
stroke. By applying a scientific process of exclusion
and probability
the doctor will come to a diagnosis and in many cases a doctor will,
on the balance of probabilities, be able to
conclude what cause of
the stroke was. In this particular case, experts for both the
plaintiff and the defendant agree that K.'s
cerebral palsy falls
within the ambit of Presumed Perinatal lschaemic Stroke. Because it
is agreed between the experts that this
stroke falls within this
ambit, the investigation as to the cause of the stroke can be limited
to what is referred to as Presumed
Perinatal lschaemic Stroke. He
acknowledged that the incidence of Perinatal Arterial lschaemic
Stroke is about one in 2300 to 4000
live births and that it is
therefore a rare kind of neurological disorder. He also confirmed
that there are certain other risk
factors that can also cause a
Perinatal Arterial lschaemic Stroke. One of these factors is
gestational diabetes. Dr Edeling explained
that diabetes on its own
would not have caused a vascular stretch injury to the carotid artery
but accepted that it could have
primed the baby to be more
susceptible to the vascular effects of a stretch injury. Dr Edeling
also explained that in light of
the anatomical origin of the three
vessels from the internal carotid artery, he was of the view that it
was most unlikely that
diabetes was the sole cause of damage to the
three major cerebral blood vessels on the one side of the brain only.
In fact, he
regarded it as extremely unlikely that, if the plaintiff
had diabetes, that this was the cause of the vascular injury.
Furthermore,
as already pointed out, it was his view that, in light
of the fact that the three damaged cerebral blood vessels on the same
side
of the brain, it was highly unlikely that the causative
pathology was systemic.
Professor
Jacklin
[42]
The third expert witness for the plaintiff was Prof Jacklin who is a
paediatrician. She also has a sub-specialist certificate
in
Developmental Paediatrics. She also runs a service for children that
have been abused. She explained that she sees many children
with
perinatal stroke. She also examined K. with a view of forming an
opinion as to whether K. presents a medical condition that
could be
compatible with and as a result of a fall at birth.
[43]
Prof Jacklin explained that on the evidence presented, the plaintiff
did not test positive for diabetes at the time of the
delivery of K..
Her urine was tested on numerous occasions and there is no evidence
of her being diabetic. At the time when K.
was  delivered,  the
plaintiff was 42 years  of age and referred to her as a
"multigravida". She
explained that if the plaintiff had
been diabetic, it would have been critical in both the plaintiff's
management and the management
of the newborn baby.
[44]
She referred to the hospital notes where it was noted that the second
stage of the delivery (which would be from full dilation
of the
cervix to completion of the delivery of the baby) took only two
minutes. According to literature, the usual time is about
2 to 3
hours. In light of these facts, the delivery (which took
approximately two minutes) was a very short time especially when
one
had to consider that the whole infant had to come through the birth
canal within a time span of two minutes.
[45]
Apart from the fact that the birth was fast, Prof Jacklin testified
that it should also be considered that the plaintiff was
at the time
a 42-year-old woman and that the baby weighed 3.8 kg which is
considered to be a big baby. In these circumstances,
she as a
paediatrician would have been concerned about the forces required to
expel the baby so fast. She explained that given
the speed of the
birth, the birth under these circumstances, could not have been
considered to be a normal delivery in light of
the fact that the baby
was abnormally propelled through the birth canal. She explained that
it was a "significant possibility"
in these circumstances
that, given the stresses caused by this abnormal birth, and given the
fact that the baby was propelled through
the birth canal with
stresses which are not normal particular on the baby's head, that an
injury known as a stretched injury could
possibly have arisen in this
instance.
[46]
Prof Jacklin also agreed that the injury sustained by K. is a
Presumed Perinatal lschaemic Stroke. Because it was assumed on
the
available evidence that the stroke happened in the perinatal period
which is within the first month of life (28 days), this
condition is
referred to as a Presumed Perinatal lschaemic Stroke. She confirmed
that ischemia means that the injury was arterial
in nature where
there is decreased oxygenated blood going to a certain part of the
brain.
[47]
Prof Jacklin was of the view that maternal smoking, maternal diabetes
and cord abnormalities, which are all factors that could
be proved
statistical significant, were not relevant to K.. It was her opinion
that this was a traumatic delivery in the sense
that it was neither a
normal assisted delivery nor a controlled delivery. In light of the
fact that there is evidence that the
baby did in fact fall, the
delivery was a traumatic delivery, and that this caused the damage to
the internal carotid artery.
[48]
Prof Jacklin also agreed with the view of Dr Edeling that a baby can
fall with no external injuries visible. In fact, she has
seen babies
with intracranial bleeds where there is no external evidence of
damage and that this may lead to a decrease of oxygenated
blood in
the brain.
[49]
Prof Jacklin testified that the literature confirms that a baby can
suffer from stretch injury simply as a result of a precipitate

delivery and it was her view likely that this had occurred in this
case. She acknowledged that although a stretch injury to the
neck is
rare, it was equally rare for babies to be left to be delivered from
a lithotomy position without anybody there. She stressed
that one
cannot ignore the fact that the mother was 42 years old, that the
baby was big, that the plaintiff was in a lithotomy
position and that
K. fell to the floor. According to Prof Jacklin, all of this point to
a traumatic delivery. If the plaintiff
had delivered from squatting
position, K. would have been at a much lower risk as this is
considered to be the traditional way
of delivering a baby.
[50]
Professor Jacklin was asked about her experience with children with
prenatal stroke. She explained that she sees many children
with
perinatal stroke and that it is her job to do an evaluation at the
causation of the stroke. This would include doing MRI scan.
The vast
numbers of these children have long term disabilities. She confirmed
that it is now known that K. has an anterior, middle
and posterior
cerebral artery thrombosis and that this was caused by damage to the
internal ceratoid artery. The baby would not
necessarily show signs
of this infarction soon after birth as it may take time to manifest.
Prof Jacklin also confirmed that the
umbilical cord would not
necessarily have broken and that the cord may have gradually
stretched and broken. In her opinion therefore,
having regard to the
MRI scan and having regard to the archival anatomical damage seen on
the MRI scan, there is a significant
possibility or a stretch injury.
She testified that in order to explain this type of damage to the
internal carotid artery, one
must look at the mechanism of delivery.
There would have been an extension of the baby's head with traction
on the internal carotid
artery and stretching damage to the intimae
of the internal carotid artery for which there is scientific
documented evidence in
the literature.
CT
scans
[51]
The two radiologists for the plaintiff and defendant are in agreement
that K. had suffered an extensive hypoxic ischemic event
that
resulted in the destruction of the right cerebral hemisphere.
[52]
The two radiologists agreed that K. has a dense right hemiplegia and
that he has a condition described in the literature as
Presumed
Perinal lschaemic Stroke. They are in agreement that this condition
does not present clinically in the neonatal period
(which is
considered to be the first 28 days after birth) and that this
condition often presents weeks to months later.
Professor
Bolton
[53]
Prof Bolton, a retired paediatrician, was the first witness called on
behalf of the defendant. He was a professor and the head
of the
Department at Rahima Moosa, Mother and Child Hospital. He held this
position for 15 years.
[54]
Prof Bolton explained that although his experience is confined to the
care of newborns, he is not a registered Neonatologist.
His
experience, however, has largely been that of a Neonatologist. He
explained that a neonatologist will hand over a baby recognised
with
stroke or other damage to doctors like Prof Jacklin. He explained
that Prof Jacklin is recognised as an expert,
inter alia,
in
the rehabilitation of children with strokes. In the joint minutes,
Prof Bolton and Prof Jacklin agreed that K. had a dent right

hemiplegia and that K. has a condition described in the literature as
Presumed Perinatal lschaemic Stroke. It was also agreed that
this
condition does not present clinically in the neonatal period, which
is the first 28 days. There was, however, no agreement
as to the
cause of the stroke. It was also agreed upon that the plaintiff was
not attended to by the nursing staff in the second
stage of the
delivery.
[55]
Prof Bolton explained that per year, between 20, 000 - 25, 000 are
born at the Baragwaneth Hospital. At Rahima Hospital, approximately

10,000 to 12,000 babies are born per year. Some babies are even born
before they arrive at the hospital. Some of these babies are
born in
pit toilets and have to be rescued; some are born in taxis and some
are born at home. Most of these babies are born unassisted.
Many
babies are also born unassisted in the hospital and some are even
born on the floors of hospitals because of lack of facilities
and
space. He confirmed that babies face many risks when they are born
and that they can get injured when they are born.
[56]
He confirmed that the perinatal stroke is very rare and that one in
2500 babies may experience a perinatal stroke. He also
confirmed that
in a large proportion of these babies, the signs of the stroke having
occurred may only present later. He explained
that the incidence of
perinatal stroke seems to be on an increase the reasoning being that
more such cases are now being diagnosed
with MRI scans, CT Scans and
ultrasound scans which are now able to make a diagnosis more
accurately. He explained that the causes
for Perinatal Arterial
lschaemic Stroke are poorly understood and that the risk factors are
complex and multiple. Often the definite
cause for the stroke is not
found. He referred to three kinds of stroke, firstly, the
haemorrhagic stroke, secondly, the venous
thrombotic stroke and,
thirdly, the most common stroke which is referred to as the ischaemic
stroke where the blood supply to the
brain via the arteries is
interrupted. He explained that although hemiplegic cerebral palsy is
a common outcome of perinatal arterial
stroke a stroke does not
always manifest in hemiplegic cerebral palsy.
[57]
Prof Bolton stated that he has never seen a single case of Neonatal
Stroke occurring in a baby where it was associated with
an unassisted
delivery. Prof Bolton did, however, concede that this is not to say
it cannot happen and that it is possible that
in this case there
could be an association between an unassisted delivery and a presumed
perinatal artenal stroke.
[58]
Prof Bolton also confirmed the evidence of Dr Edeling and Prof
Jacklin that the patient will only be placed in the lithotomy

position where there is a complication in the delivery of the baby
and where there is a need to manipulate the baby in some way
or
another or where there is a need to use a vacuum extractor or a
forceps. In other words, he confirmed that this position is
reserved
for complicated deliveries. Referring to the facts of this case, Prof
Bolton confirmed that he could find no reason why
the plaintiff would
have been placed in the lithotomy position. Prof Bolton agreed that a
two-minute second stage delivery was
unlikely although it is recorded
as such in the notes of the  hospital.  It was  put to
Prof  Bolton
that  the  plaintiff  had a
prolonged labour and that it was reasonable for the nurses to have
placed her in the
lithotomy position because she has been in labour
for a number of hours. Prof Bolton did not agree that she would have
been placed
in this position simply because there was a prolonged
first stage labour.
[59]
Prof Bolton also confirmed evidence of Dr Edeling that it would be
difficult to test the various functions of the brain immediately

after the birth and that the test normally used only gave an idea of
the function of the brain and the motor functions. Prof Bolton
also
agreed that it is quite possible for baby to have fallen and sustain
an injury yet there will be nothing clinically present
at the stage
of examination. He also confirmed that about 30 to 40% of patients
who have had strokes displayed no signs or symptoms
in the early
neonatal period, although the event that caused this stroke occurred
around the time of the birth.
[60]
Prof Bolton also found that the medical records in this case are
scanty and that the standard of obstetric care was often sub-optimal.

One of the examples of inadequate care includes the apparent failure
to recognise that the plaintiff was at high obstetric risk
with
regard to her age, her previous obstetric outcomes, hypertension, the
prolonged rupture of the foetal membranes and unattended
delivery per
se. Prof Bolton also agreed that there is always a danger that the
baby will be injured if it is dropped from a distance
such as from a
bed.
[61]
With reference to K.'s brain injury, he is of the view with reference
to the multiple arteries in his brain were occluded that
such a
pattern may suggest multiple emboli from an external cranial source
such as the placenta. Maternal hypertension and prolonged
rupture of
membranes as occurred in the plaintiff may also predispose to patient
to damage the the placental arteries and the development
of clots
which may then enter the foetal circulation across the patient's
foramen  ovale  and  cause  cerebral

infarcts.  He explained  that maternal smoking;
maternal diabetes and cord abnormalities could be proven
statistically
significant. Prof Bolton, however, states in his report
that none of these factors is relevant to K..
[62]
With reference to the presence of diabetes, Prof Bolton initially was
of the view with reference to a study in which it was
concluded that
maternal smoking, maternal diabetes and cord abnormalities could be
proven statistically significant, that none
of these factors were
relevant to K.. However, subsequent to having been alerted to the
fact that the plaintiff had testified that
she has diabetes, he
adjusted his report to provide for this risk factor. In this regard
Prof Bolton testified that diabetes has
a profound effect in
pre-pregnancy on the mother and on the baby and that diabetes can
also contribute to clotting in the blood.
Diabetes, according to him,
is associated with and can be associated with abnormal clotting in
the placenta on the foetal side
as well as the maternal side and that
this increased the risk of placental clotting and the risk of embolus
to the foetus including
the foetal brain.
[63]
In cross- examination, Prof Bolton was, however, confronted with the
fact that the plaintiff was tested on four occasions for
diabetes and
that in each case there was no record of sugar in her urine. Prof
Bolton had to concede that diabetes was therefore
unlikely and that
he could not find any evidence of diabetes in the hospital records.
In cross examination, Prof Bolton was also
questioned about certain
comments that he had allegedly made during one of the adjournments
after he was informed that the plaintiff
had diabetes. It was put to
him that his answer was "that it is wonderful". Prof Bolton
replied that it was unlikely
that he had said this but he said that
he will not deny it because he could not remember what he said. It
was accordingly put to
Prof Bolton that he was not an independent
witness, which he disputed. In cross examination, Prof Bolton also
suddenly explained
that he did not know whether the mother smoked and
that he did not study the umbilical cord despite the fact that he had
stated
at the time that none of these factors were relevant.
[64]
Prof Bolton confirmed that the second stage of labour is
unpredictable in the speed in which it occurs. This period can vary

from minutes to an hour but it is very difficult to predict. He was
also of the view that it was indefensible to leave a high-risk
mother
such as the plaintiff unattended in advance labour.
[65]
Prof Bolton was thereafter of the view that the stroke originated in
the placenta where a clot had developed and that the clot
had
travelled up the umbilical cord vein and that it may have blocked off
the internal carotid artery or may have blocked off the
posterior
cerebral artery, the middle cerebral artery and the anterior cerebral
artery and caused the stroke. His view therefore
was that there is a
thrombotic and embolic cause for the stroke. In this additional
report, Prof Bolton now advocates that the
probable cause of the
stroke was the association of hypertension and prolonged rupture of
the membranes.
[66]
In conclusion, it was his view that the cause of traction
injuries to the arteries in the neck as a cause for the stroke
was
unlikely because traction in itself requires somebody to pull. Prof
Bolton, however, conceded that it is possible the damage
could have
occurred in the manner contended by the plaintiff although he was of
the view that it was not the most likely cause
for the injury. He
therefore conceded that an excessive deflection of the head and neck
in relation to the shoulders and the way
in which the baby was
delivered could have been a possible cause of the injury, although he
was of the view that it was not the
most likely cause. He testified
that it was normal for babies to twist during the birth process and
the twisting does not result
in his opinion in damage to the carotid
arteries and result in a stroke. Although Prof Bolton conceded that
he has speculated as
to what would be on a balance of probabilities
the most likely cause for the stroke in K.'s case, he still
maintained that the
plaintiff's scenario is not the most likely cause
for the stroke.
Sister
Sikhakane
[67]
Sister Sikhakane is employed by the defendant at the Natalspruit
hospital labour ward. She confirmed that she had left the
plaintiff
lying on the bed because she was of the view that she was not needed
at the time. She confirmed that the plaintiff was
6 cm dilated at the
time. She explained that it was not normal to place the patient in
the lithotomy position and that a patient
was only placed in that
position when there was an emergency. She therefore disputed that the
plaintiff was placed in this position.
[68]
According to her, she heard a baby cry and that she then rushed to
the plaintiff. Further according to her, she found the plaintiff
in a
squatting position on the floor. She then clamped the umbilical cord
and checked the baby. The plaintiff then got back onto
the bed and
was then placed in the lithotomy position so that she could be
stitched up. She confirmed that she had left the plaintiff
alone for
approximately 37 minutes.
[69]
Sister Sikhakane confirmed with reference to her notes that she did
in fact note in the hospital records that the baby had
fallen to the
floor but explained that she wrote this because she found the baby on
the floor.
[70]
In respect of whether the bed was raised after the plaintiff was
placed on the bed, Sister Sikhakane testified that the bed
was not
raised. She admitted, however, that the bed in the labour ward at the
time of the incident was similar to the ones depicted
in photos shown
to her: These are beds that can be automatically raised or lowered by
manual foot pedal. In cross examination,
she told the court that the
beds are only raised for the sole purpose to clean under them. She
steadfastly refused to concede that
these beds are used for the
convenience of the nursing staff. She even went as far as to dispute
Prof Bolton's evidence that the
bed is raised to make delivery
easier. It was only when she was pressed that she later conceded that
beds were adjusted for the
convenience of the nursing staff.
Thereafter she testified that the staff never raised the bed.
[71]
When Sister Sikhakane was asked why she did not keep a partogram when
the plaintiff was admitted to her ward, she testified
that this was
only requirement at the later stage of labour. However, in cross
examination, she conceded that the plaintiff was
6 cm dilated on
admission and that she knew that a portogram should have been kept
from 3 cm dilation. Sister Sikhakane was also
vague about the need to
monitor the patient. First Sister Sikhakane stated that the patient
need only be monitored every two hours.
When it was put to her that
in fact guidelines state that the patient must be monitored at least
every 30 minutes, her answer was
that this was only relevant to
obstetric cases having abnormalities such as hypertension and stated
that the plaintiff's case was
not an abnormality. When it was pointed
out to her that the plaintiff was in fact hypertensive, she said it
was only when a patient
was booked into a High Care bed that this
rule would apply. Sister Sikhakane tried to justify her actions by
saying that every
hospital has its own protocol which is a version
that was never put to Ms Hanharan.
[72]
Sister Sikhakane conceded that her notes in respect of the time of
onset of labour were not based on any factual evidence and
that it
merely was an estimation. She also conceded that she incorrectly
recorded the method of delivery as being "passive".
She
also admitted that the APGAR score of 10 was not accurately recorded
as per protocol and that it was merely an estimation at
the time. She
also admitted that the records were not up to standard.
[73]
It is important to point out that Sister Sikhakane admitted that she
did not ask the plaintiff how the baby was born and that
she had
merely arrived at the conclusion that the baby was born from a
squatting position in light of the fact that the baby was
at that
time she arrived there on the floor. She explained that she used the
word "fell" because all babies fall upon
being born. She
denied that she used the word "fell" because the baby had
in fact fallen from the bed.
[74]
It is also important to point out that Sister Sikhakane stated in
evidence that when she heard the baby cry she was actually
at High
Care to check whether it was possible to place the plaintiff in High
Care. According to Sister Sikhakane there was therefore
a need to
place the plaintiff in high care.
[75]
With reference to the notes written on the hospital records by the
plaintiff herself Sister Sikhakane explained that she had
required
the plaintiff to make a statement on the hospital records as this is
required in circumstances where the birth had occurred
without the
nurses being present. She also conceded that it was preferable to
support the neonatal's head at birth to prevent the
risk of injury.
Dr
Karan
[76]
Dr Karan was the third witness on behalf of the defendant. He
explained that he is a neurosurgeon and that he normally treats

surgical conditions of the brain and the spine. He confirmed that the
injury was of a vascular type but testified that he has never

encountered a case of Perinatal Arterial lschaemic Stroke. He also
conceded that this condition did not fall within his expertise
and
that a neurologist would be able to comment on this condition. Dr
Karan was therefore not able to assist the Court in any meaningful

way in light of his evidence that most of the issues put to him did
not fall within his expertise.
Professor
Buchman
[77]
Prof Buchmann is an associate professor in the Department of
Obstetrics and Gynaecology of University  of  the
Witwatersrand
with  many  years  of
experience in labour wards. He also explained that he was the
Chairman of the Committee
which compiled the Departmental Nursing
Guidelines. He explained that these guidelines are accepted as being
the standard for nursing
care in State hospitals. He confirmed that
he would not have been satisfied with the nursing standards as having
been applied to
his patients as testified to by Sister Sikhakane and
pointed out that these guidelines are there to prevent injury to
patients.
Prof Buckhmann was in general critical of the standard of
care in the Natalspruit hospital.
[78]
Prof Buchmann confirmed that the lithotomy position is reserved for
difficult deliveries and that it was improbable that professional

nurses would have placed a woman in the lithotomy position when her
cervix was 6cm dilated and then walk out of the delivery room.

According to him, most babies were delivered whilst the mother was
standing or sitting on the floor next to the bed with a baby
on the
floor. In all the cases of that he has seen there were no injuries to
the babies although the main concern was that the
babies could get
cold.
[79]
Prof Buchmann testified that he could not comment on whether a fall
to the floor could have caused injury to arteries serving
the brain
as such opinion should be sought from neurosurgeons or trauma
specialists with a paediatric interest or paediatric neurologists.

With regard to the question what caused the injury to K., Prof
Buchmann was of the opinion that it was unlikely that an unsupported

head would easily be injured during delivery as babies have tone in
their neck's. He did, however, conceded that it was preferable
to
support the neck of the baby to minimise the risk of injury. He also
explained that some deliveries are rapid and that the head
of the
baby can "shoot out". This has the effect that the head is
flexed and released quickly. Whether it was possible
that the head
and neck of the baby could be jerked to one side if the head hit the
ground during a fall from a height and result
in a stretch injury,
Prof Buchmann testified that he preferred to defer to the opinion of
an expert in this regard. In fact, when
confronted with the expert
opinion of Dr Edeling that a stretch injury caused the stroke in the
present matter, Prof Buchmann conceded
that it was possible and
conceded that he was not an expert on this kind of injury.
[80]
In respect of whether diabetes could have contributed to the stroke,
Prof Buchmann again deferred to the opinion of a paediatrician.
He,
however, confirmed that there was no indication in any of the
hospital records that pointed to maternal diabetes.
Dr
Naidoo
[81]
Dr Naidoo is a forensic pathologist with extensive experience in the
field of forensic pathology. He testified that he was
in a position
to diagnose a perinatal stroke. Dr Naidoo appreciated the fact that
there were certain uncertainties and vagueness
in the medical history
as obtained from the hospital records in this case. It is important
to point out that the radiological forms
of the CT scans and the MRI
scans were not made available to Dr Naidoo. Dr Naido also conceded
that he had no special qualifications
in either radiology or
neurosurgery and that the opinions of duly qualified experts in those
fields would carry more weight.
[82]
Dr Naidoo was of the view that the delivery of a baby with the mother
in a squatting position is unlikely to be the cause of
major or
significant injury to newborn infant and that this consideration can
be confidently ignored in terms of causation of the
brain damage.
With regard to the possibility of a fall from the labour delivery bed
causing the brain damage to the newborn baby,
he was of view that,
although this cannot be excluded as a possibility, a vascular event
in utero before delivery was a possibility.
[83]
A large
part of Dr Naidoo's evidence related to the possibility of a fall
having occurred based on the presence or absence of external

injuries. He referred to the fact that there were no physical signs
of any injury present. He could, however,
not dispute
the evidence
that
a baby
could fall without
an injury
being present. In
this
regard, Dr Naidoo pointed out that his
focus was
more on the pathology side of the injury and not so much on the
clinical side of the injury.
With regard
to
whether an
injury
to
the carotid
artery can
occur
without any
external
mechanical
trauma at
birth,
Dr
Naidoo
stated
that
although
i
t
was
biologically
possible,
medical
literature
did
not support
this
as
a
common
tendency.
However,
in
cross-examination,
Dr
Naidoo
did
not
dispute
the
evidence
of
three
experts
who
had
conceded
that
a
stretch
injury
to
the carotid
artery
can
occur
in
a
spontaneous
delivery
without
the
use
of
a
forceps or
a vacuum. When he was
referred to
the following
extract
in article
by C Ruddick, M Ward
Platt and C
Lazaro "Head trauma outcomes of verifiable
falls in
newborn
babies",
Dr
Naido
conceded
that
he
was not
aware
of
this
and that
this may
be
possible
if
the
article
supports
such
a
view:
[3]
'5.
Spontaneous dissection of cervicocephalic arteries due to minor
trauma. This mechanism causing brain infarction is has been
described
by Schievink et al in childhood and adolescence. It can occur in
neonates as illustrated in our case 2. The section in
this neonate
occurred possibly due to precipitate delivery. Even then one has to
rule out the section of the carotid and vertebral
arteries.'
[84]
According to Dr Naidoo the injury to K.'s brain was as a result of
direct force to the middle cerebral artery but later conceded
when
faced with the opinion of Dr Edeling - who stated that it was highly
unlikely that direct trauma could have caused the infarction
so deep
in the brain - that these arteries would only have been injured if
the forceps had penetrated the brain.
Expert
witnesses
[85]
Numerous experts witnesses were called by both parties. Although the
law is clear, it is necessary briefly restate what the
role of an
expert witness is particularly in the context of this matter where
the experts of the plaintiff and defendant gave conflicting
evidence
as to the likelihood of the cause of the injuries to K..
[86]
An
expert
witness
does
not
assume
the
role
of
an
advocate
nor
does
the expert
give
evidence
which
goes
beyond
the
logic which
is dictated
by the
scientific knowledge,
which that
expert
claims
to
possess. See in
this
regard:
[4]
'In
this connection it is necessary to deal with the role of an expert.
In Zeffertt, Paizes and Skeen The South African Law of Evidence
at
330, the learned authors, citing the English judgment of
National
Justice Compania
Naviera
SA
v
Prudential
Assurance
Co
Ltd
(The
'lkarian Reefe
’
)
[1993] 2 Lloyd's Rep 68 at 81, set out the duties of an expert
witness thus:
"1.
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert uninfluenced
as to form
or content by the exigencies of litigation.
2.
An expert witness should provide independent assistance to the court
by way of objective, unbiased opinion in relation to matters
within
his expertise.... An expert witness should never assume the role of
an advocate.
3.
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinion.
4.
An expert witness should make it clear when a particular question or
issue falls outside his expertise.
5.
If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be stated
with an
indication that the opinion is no more than a provisional one. In
cases where an expert witness who has prepared a report
could not
assert that the report contained the truth, the whole truth and
nothing but the truth without some qualification, that
qualification
should be stated in the report."
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor gives evidence which
goes beyond the logic which is dictated by the
scientific knowledge
which that expert claims to possess.'
[87]
Where expert medical evidence is sharply divided, the Court must
attempt to resolve these differences of opinion and
where
possible make
findings on
the issues,
based
upon
the
probabilities.
[5]
Where
dispute
turns
on
an
election
between the
opposing
views
of two
expert
witnesses,
determination
of the
dispute rests with Court and not with expert witnesses. The
determination of the
dispute
will depend
on an
analysis
of
cogency
of
underlying
reasoning
which
led
experts
to
their
conflicting
opinions.
[6]
In
the
end
the
Court
will assess
which of the conflicting views is
to
preferred. See
Michael
and Another v Linksfield Park
Clinic
(Pty) Ltd and Another.
[7]
'[34]
In the course of the evidence counsel often asked the experts whether
they thought this or that conduct was reasonable or
unreasonable, or
even negligent. The learned Judge was not misled by this into
abdicating his decision-making duty. Nor, we are
sure, did counsel
intend that that should happen. However, it is perhaps as well to
re-emphasise 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 Court's reaching its own
conclusion on the issues raised.
[36]
That being so, what is required in the evaluation of such evidence is
to determine whether  and to what  extent their
opinions
advanced are founded on logical reasoning. That is the thrust of the
decision of the House of Lords in the medical negligence
case of
Bolitho
v City and Hackney
Health
Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)). With the relevant dicta in the
speech of Lord Browne-Wilkinson we respectfully agree. Summarised,
they are to the following
effect.
[37]
The Court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because

evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical practice.

The Court must be satisfied that such opinion has a logical basis, in
other words that the expert has considered comparative risks
and
benefits and has reached 'a defensible conclusion' (at 241G - 2428).
[40]
Finally, it must be borne in mind that expert scientific witnesses do
tend to assess likelihood in terms of scientific certainty.
Some of
the witnesses in this case had to be diverted from doing so and were
invited to express the prospects of an event's occurrence,
as far as
they possibly could, in terms of more practical assistance to the
forensic assessment of probability, for example, as
a greater or
lesser than fifty per cent chance and so on. This essential
difference between the scientific and the judicial measure
of proof
was aptly highlighted by the House of Lords in the Scottish case of
Dingley v The Chief Constable, Strathclyde Police
200 SC (HL) 77 and
the warning given at 890- E that "(o)ne cannot entirely discount
the risk that by immersing himself in
every detail and by looking
deeply into the minds of the experts, a Judge may be seduced into a
position where he applies to the
expert evidence the standards which
the expert himself will apply to the question whether a particular
thesis has been proved or
disproved - instead of assessing, as a
Judge must do, where the balance of probabilities lies on a review of
the whole of the evidence.'"
The
law
[88]
In order for the plaintiff to be successful in this matter the
plaintiff must prove the following:
1.
K. suffered a brain injury.
2.
The brain injury was caused by a blockage either total or partial of
the right carotid artery.
3.
The blockage was caused by an injury to the right carotid artery
4.
The injury was caused by an event.
5.
The event was due to the negligence of the defendant.
6.
The negligence caused the injury.
Assessment
[89]
It was common cause that the plaintiff gave unassisted birth, that K.
was found on the floor by Sister Sikhakane and that K.
suffered from
a stroke. It is also common cause that that K. suffered from a stroke
in the perinatal phase and that this stroke
can be considered as
being a "Presumed Perinatal lschemic Stroke". It was also
common cause that no physical injuries
were noted which could have
pointed to an external trauma to the head. Also, no congenital
abnormalities were noted. It was also
accepted by the experts that
although no physical injuries were present at the time of birth it
was possible that (although the
brain damage had already occurred at
the time of the birth) the injury only manifest at a later stage. It
was also common cause
that the radiological scan (of 2012) showed
narrowing of the anterior cerebral, middle cerebral and posterior
cerebral arteries
on the right side of K.'s brain if this side is
compared to the normal left side of his brain. The brain damage
occurred therefore
as a result of a vascular injury. I will return to
my findings of what is the most likely cause of the vascular injury
and subsequent
brain damage to K.'s brain.
Was
the
plaintiff placed in
the
lithotomy position?
[90]
The first question to be decided is whether the plaintiff was placed
in the lithotomy position. The answer to this question
is crucial
because an injury such as that suffered by K. would have been
considerable less likely if the plaintiff had given birth
whilst in a
squatting position
vis
a
vis
giving birth in a
lithotomy position on a bed approximately 1.2 meters from the ground
and the baby falling to the ground from that
height.
[91]
It was common cause that the plaintiff was alone at the time of the
birth and that no one but she knows what happened at the
time she
gave birth. The plaintiff was adamant that she was in a lithotomy
position despite the fact that the expert witnesses
opined that it
was unlikely that she would have been placed in this position because
this position was normally reserved for high
risk deliveries. The
defendant was adamant that the plaintiff gave birth in a squatting
position although the evidence presented
on behalf of the defendant
regarding the actual delivery was not only circumstantial but also
speculative.
[92]
Although it is accepted that only high risk patients are normally
placed in a lithotomy position, I am of the view that it
is on the
probabilities not improbable that the plaintiff had in fact been
placed in the lithotomy position. Apart from the fact
that this was
the evidence of the plaintiff who was in all respects a credible
witness, Sister Sikhakane admitted in her evidence
that she herself
had regarded the plaintiff as a high risk patient and in fact, that
she went to High Care to find a bed for the
plaintiff precisely
because she regarded the plaintiff as a high risk delivery. It should
further be noted that Prof Bolton in
his medico legal report also
regarded the plaintiff as a high obstetric risk.
[93]
Furthermore, Sister Sikhakane admitted that she did not ask the
plaintiff how she had delivered the baby and that she merely
assumed
that the plaintiff had delivered in a squatting position because she
found the baby on the floor when she returned from
High Care to the
labour ward where the plaintiff was.
[94]
I also find Sister Sikhakane's notes instructive: In her own
handwriting Sister Sikhakane records that the baby fell on the
floor.
If the baby did not fall, why did she record that the baby had
fallen? I also find her explanation that all babies fall
even when
they are delivered from a squatting position unpersuasive. If K. did
not fall she would not, in my view, have recorded
that the baby
"fell
on the floor'
.
Furthermore, if nothing out of the
ordinary had taken place during the deliver, why did Sister Sikhakane
request the plaintiff to
make, in her own handwriting, an entry on
hospital records reserved for Doctors and Midwives? Her explanation
that she was required
to do so in circumstances where the birth had
occurred without the nurses being present was not put to any of the
plaintiff's witnesses
especially to Ms Hanrahan who is qualified to
comment on such a practice.
[95]
Lastly, it should also be pointed out that Sister Sikhakane was in
general not a good witness. Not only was she vague about
many aspects
in her evidence, she did not hesitate to concoct a far-fetched story
about a trivial issue namely whether or not hospital
beds could be
adjusted. Furthermore, it is in my view, improbable that the
plaintiff, who at the time of birth had no reason to
believe that her
baby had suffered from an injury at the time of birth, would have
concocted a story that she had given birth from
a lithotomy position.
[96]
Having regard to the available evidence and the evidence of the
plaintiff who was in all respects a more credible witness than
Sister
Sikhakane, I find that the plaintiff's version must be accepted as
the most reasonable on a balance of probabilities.
Did
the plaintiff suffer from maternal diabetes?
[97]
On the medical evidence presented to this Court it can safely be
concluded that the plaintiff did not suffer from any maternal

diabetes which could have made K. more susceptible to a stroke. In
fact, if regard is had to the medico legal opinion of Prof Bolton
on
behalf of the defendant, he himself noted that the urine of the
plaintiff was tested and found to be normal. Prof Bolton identified

maternal smoking, maternal diabetes and cord abnormalities to be
proven to be statistically significant but concluded that none
of
these factors is relevant to K.. Maternal diabetes can, therefore, in
my view be excluded as a possible cause (although Dr Edeling
was of
the view that diabetes on its own could not cause a stroke) or
possibly a contributing factor to K. having suffered a stroke.
Negligence
on the part of the defendant
[98]
It is accepted that the defendant was negligent in the manner the
nursing staff - especially Sister Sikhakane - had executed
their duty
of care towards the plaintiff and K.. In fact, the parties are in
agreement that the nursing staff at the Nelspruit
Hospital kept
inadequate records and that the records pertaining to the labour and
perinatal care are scant and contradictory within
themselves.
Furthermore, the defendant's own expert witness, Prof Buckmann,
testified that he would not have been satisfied with
this level of
care if it had been applied to his patients.
[99]
All the relevant experts also concurred that it was unacceptable for
the nurses to have left the plaintiff who was in an advanced
stage of
labour, who suffered from hypertension, who had already been induced
in order to expedite delivery and who was already
bearing down to
give birth, alone. The fact that Sister Sikhakane herself regarded
the plaintiff as a high risk deliver to such
an extent that she had
gone to High Care to arrange for a bed and the fact that she left the
plaintiff alone for approximately
37 minutes, only compounds the
negligent conduct on the part of the nursing staff. Further
compounding the negligence on the part
of the defendant is the fact
that the plaintiff was placed and left alone in a lithotomy position
at a time when she was already
bearing down to give birth.
[100]
On the evidence it is concluded that had the nurses been present at
the time of the deliver, K.'s head would have been supported
during
the delivery process and more importantly, K. would not have fallen
to the floor.
The
most likely cause o the brain injury
[101]
Having accepted that the plaintiff had delivered from a lithotomy
position and that as a result, K. fell to the floor and
having
accepted that the nursing staff were negligence in their caring
obligations towards the plaintiff and K., it still needs
to be
determined whether this method of delivery caused the injury to K.'s
brain and whether the injury was not caused by something
else.
[102]
What is clear from the records is that the birth (the second stage)
was rapid. According to the records completed by Sister
Sikhakane -
which is the only records available - and the own evidence of the
plaintiff, the birth was rapid. In fact, it was estimated
that the
birth took about two minutes. On all accounts this is considered by
the experts as a very rapid birth. The baby was also
considered to be
a big baby. In this regard the evidence of Dr Jacklin that
considerable forces must have expelled K. through the
birth canal,
was not disputed.
[103]
The possibility that the injury to K. was as a result of a direct
force of blow to the head can safely be excluded. It is
clear from
the evidence, and accepted by the experts, that there is no
indication that the brain damage was caused by a blow to
the head.
Although a stretch injury to the vertebral and cerebral arteries can
arise as a direct result of mechanical trauma involving
forceps and
vacuum assisted deliveries when the head and neck are manipulated, it
is clear from the facts that the delivery was
not mechanically
assisted.
[104]
Although there is no direct evidence that the head of the baby jerked
to one side in the sense that there was an excessive
deflection
towards the shoulder with the result that the neck of K. was
stretched and consequently injured, it can, in principle
be accepted
that, although this condition is rare, a stretch injury during the
birth process may cause an injury to the brain.
[105]
Both Dr Edeling and Prof Jacklin stated that the most likely cause of
the blockage was due to a stretch injury to K.'s right
carotid
artery. This evidence could not be disputed by the experts for the
defendant. It can therefore, in my view, safely be accepted
that
damage to the brain (such as that suffered by K.) can be caused in
circumstances where there is excessive deflection of the
head and
neck in relation to the shoulders and that this type of injury can
occur as a result from a stretching of the neck of
a newborn when the
head is not supported as gravity pulls it down or where the head
abuts the floor while the rest of the body
continues to move.
[106]
Prof Edeling explained in great detail why he was of the view that a
stretch injury had caused the damage and why he was of
the opinion
that the damage was not as a result of injury or other systemic
causes with reference to the specific location of the
injury in the
brain and the fact that the surrounding areas of the brain are not
damaged. I can find no reason to reject the evidence
of Dr Edeling
and Prof Jacklin. In respect of Prof Jacklin it is noteworthy to
point out that she personally examined K. and that
she has extensive
experience with children with perinatal stoke. Her considerable
expertise was not placed in dispute by any of
the expert witnesses.
It is also noteworthy that Prof Buckmann, who clearly is an expert in
the field of obstetrics and gynaecology,
deferred to the expertise of
Prof Jacklin in respect of the most likely cause of the injury. In
fact, he conceded that it was possible
that where a birth was rapid
(as in K.'s case) that it was possible that the head can jerk and
that a stroke can occur as a result
of a stretch injury. He also
conceded that he was not an expert on this kind of injury.
[107]
I have already pointed out why the other expert evidence presented on
behalf of the defendant is not particularly helpful
to the Court: Dr
Karan readily conceded that most of the questions posed to him fell
outside of his expertise. The highlight of
Prof Bolton's evidence was
the presence of maternal diabetes which he had to concede in the end
was not present in this case. Dr
Naidoo's evidence was of a general
nature and of little assistance to the Court especially if his
experience with strokes in children
is compared to that of Prof
Jacklin who has extensive experience in this field. Dr Naidoo also
conceded that he has no qualifications
in either radiology or
neurosurgery and conceded that the opinion of those experts would
carry more weight than his own. He also
conceded that he did not see
the actual MRI or any other radiological images.
[108]
In conclusion therefore, save for the explanation of Dr Edeling and
Prof Jacklin, there is no other reasonable explanation
to explain why
the damage to K.'s brain only occurred in the right side of the
brain. Furthermore, in light of the fact that the
plaintiff delivered
from a lithotomy position, the fact that K. fell to the floor from a
height of 1.2 meters to the floor, the
fact that the birth was
extremely rapid (in fact two minutes), and the fact that considerable
gravity forces must have been present
at the time of the birth due to
the rapidity of the birth of a big baby, it is accepted that this
traumatic event caused K. to
suffer a stretch injury which resulted
in brain damage.
Had
the nurses been present and not negligently in breach of their duty
of care, they would have assisted the plaintiff in the delivery

process and would have prevented K. from falling and suffering a
permanent and total impairment in the form of a dense hemiplegic

"Presumed Perinatal lschaemic Stroke" which resulted in him
suffering from cerebral palsy.
[109]
In the circumstances I find that the plaintiff has established on a
balance of probabilities that the defendant acted negligently
in
failing to treat the plaintiff and K. with the required level of care
and skill required of them during the delivery and that
this
negligence resulted in the damage to K..
[110]
In the premises the following order is made:
1.
The defendant is liable to compensate the plaintiff in respect of any
such damages as the plaintiff
is able to prove in due course.
2.
The defendant is ordered to pay the plaintiff's costs of suit, as
taxed or agreed on a party and
party High Court scale, such costs to
include the qualifying and reservation fees of the following expert
witnesses: Dr Edeling,
Prof Jacklin, Ms Hanrahan and Prof Lots.
_______________
AC
BASSON
JUDGE
OF THE HIGH COURT
For
Plain
tiff:
GW Austin of Gary Austin Jordaan Inc
clo
Geyser van
Rooyen Attorneys
For
Defendant:         Adv N
Dukada SC Adv M Zulu
Instructed by the Office
of the State Attorney
[1]
MA Rutherford,
LA
Ramenghi and
FM Cowan
Neonatal
Stroke
Downloaded
from
fn.bmj.com
on
18 October
2012
at page
F377.
[2]
Ibid.
[3]
Arch Dis Child Fetal Neonatal Ed 2010;95:F144-F145
doi: 10
1136/adc.2008.
143131.
[4]
Schneider
No and
Others
v AA
and
Another
2010
(5) SA203 (WCC) at 211 - 212:
[5]
Blyth v
Van Den Heever
1980
(1) SA 191
(A): 'These questions raise a number of issues upon which
the expert medical evidence was again sharply divided. It
will,
therefore, be necessary for this Court to attempt to resolve these
differences of opinion and where possible to make findings
on the
issues, based
upon
the
probabilities.'
[6]
Buthelezi
v Ndaba
2013
(5) SA 437
(SCA): '[14]... I have said at the beginning that the
outcome of
the
dispute
as
to
whether
or
not
the
appellant's
performance
of
the
surgery,
which
led
to
the
respondent's
injury,
could
be
described
as
negligent,
ultimately
turns on an election
between
the
opposing
views of two expert witnesses. It is true, of course, as the court a
quo accentuated in its judgment, that the determination
of
negligence ultimately rests with the court and not with expert
witnesses. Yet that determination is bound to be informed by
the
opinions of experts in the field which are often in conflict, as has
happened in this case. In that event the court's determination
must
depend on an analysis of the cogency of the underlying reasoning
which led the experts to their conflicting opinions.'
[7]
2001 (3) SA 1188
(SCA).