About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 530
|
|
Buys v MEC for Health And Social Development of the Gauteng Provincial Government (16223/2013) [2015] ZAGPPHC 530 (18 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No:
16223/2013
In
the matter between:
GERTRUIDA
SUSANNA
BUYS
Plaintiff
and
MEC
FOR HEALTH AND SOCIAL DEVELOPMENT
OF
THE GAUTENG PROVINCIAL
GOVERNMENT
Defendant
JUDGMENT
D S
FOURIE, J:
[1]
This is a claim for payment of damages
instituted by the plaintiff both in her personal and representative
capacity as the mother
of a minor child. Prior to the child’s
birth the plaintiff was admitted to the Tshwane District Hospital for
medical
care to assist with the delivery of the baby. It is
common cause that the child suffered a hypoxic ischemic
encephalopathy
during labour as a result whereof he sustained severe
and permanent brain damage. As a result of this injury the
plaintiff
also suffered damages in her personal capacity. It is
common cause that her damages are inextricably linked to the damages
suffered by the child and therefore both claims shall be dealt with
as one.
[2]
The following facts are common cause
between the parties:
■
plaintiff’s
locus standi
to claim payment both in her personal and representative capacity;
■
Tshwane
District Hospital is a public hospital which falls under the
authority and control of the Department of Health for the Gauteng
Province;
■
at
all times relevant the medical staff of the said hospital acted in
the course and scope of their employment with the defendant;
■
on
8 February 2010 the plaintiff, who was between 42/43 weeks of
gestation, was admitted to the hospital for medical care to assist
with the delivery of the child;
■
the
child suffered a hypoxic ischemic encephalopathy during labour as a
result whereof he sustained severe and permanent brain damage
rendering him a cerebral quadriplegic.
[3]
It
has also been conceded by the defendant that if the plaintiff would
be able to prove that members of the medical staff were negligent
as
alleged and that such negligence caused the injuries sustained by the
plaintiff and the child, it should be accepted that such
conduct was
wrongful. Consequently, the issues to be determined relating to
the merits are negligence and causation.
Before considering
these issues, I shall first refer to the pleadings and thereafter
provide a summary of the evidence.
PLEADINGS
[4]
In
paragraph 6.4 of the particulars of claim it is alleged that the
defendant’s employees were negligent in one or more or
all of
the following respects:
■
they failed
to monitor the plaintiff’s labour appropriately or at all;
■
they
administered an inappropriate dosage of Pitocin to the plaintiff
during labour;
■
they failed
to summon, timeously or at all, a suitable qualified medical
practitioner when it was necessary to do so;
■
they failed
to allow the plaintiff to undergo a caesarean section when they could
and should have done so;
■
they failed
to foresee and/or to prevent the possibility of the child going into
foetal distress during labour when they could and
should have done
so;
■
they failed
to act timeously and correctly after becoming aware that the child
was in distress during labour; and
■
they failed
to provide professional services to the plaintiff and her child, with
the necessary skill, care and diligence as could
reasonably be
expected.
[5]
It
is also alleged that as a result of the negligent conduct of the
medical staff the child was born with a severe and permanent
brain
injury causing the plaintiff and the child to suffer damages.
In the amended plea these allegations are denied and
it is pleaded
that the defendant provided the plaintiff and the child professional
medical services with the necessary skill, care
and diligence as
could be reasonably expected of a hospital, nurses and doctors.
EVIDENCE FOR THE PLAINTIFF
DR VAN RENSBURG
[6]
Dr
Van Rensburg is a radiologist. On 7 December 2012 he prepared a
report with regard to a MRI scan of the child’s brain.
When he took the MRI scan, it appeared that there were no congenital
developmental abnormalities of the brain. He concluded
that the
overall appearance is consistent with an acute profound hypoxic
ischemic insult of the brain of a full term infant in
the perinatal
period. The “perinatal period” is generally
considered to be ten days to a week before and after
birth. He
explained that an “acute profound hypoxic ischemic insult”
is a process whereby the oxygen supply to
the brain is limited in a
very severe manner.
[7]
He
also pointed out extensive white matter volume loss of the brain
suggesting the additional presence of a partial prolonged hypoxic
ischemic insult. The overall appearance suggests a combined
type insult, consisting of an acute profound and a partial prolonged
insult in the perinatal period. According to him the acute
profound and partial prolonged insult are not two separate episodes
as they could have occurred at the same time or during the same
period.
PROF CRONJE
[8]
The
next witness was Prof Cronje. He is an obstetrician and
gynaecologist and was for 22 years the Head of the Department
of
Obstetrics and Gynaecology at the University of the Free State.
He is also the main editor of a text book in obstetrics
that is used
by all the universities in South Africa. He was also personally
involved in practical obstetrics for many years.
[9]
He
prepared two medico-legal reports with regard to the child. He
testified that when the plaintiff was admitted to the hospital
she
was definitely in the category of a risk pregnancy. This was
caused by two risk factors, high gestation (42/43 weeks)
and the
position of the baby which was, according to the clinical notes, an
occipital posterior. This, according to the witness,
was an
unfavourable position. It tends to cause prolonged labour;
there is an increase in incidents of obstructive labour;
and there is
also an increase in incidents of small decelerations on the
cardio-tocograph.
[10]
According
to him a reasonable medical practitioner would be able to detect that
particular position of a baby. That is done
either by way of
abdominal palpation or a vaginal examination. According to him
every nurse and every medical student is
well trained in determining
the position of a baby’s head during labour. That can be
determined already in the first
stage of labour.
[11]
According
to this witness a high risk patient should be monitored very
closely. Obstetric protocol dictates that a patient
should be
observed every 20 to 30 minutes while she is in labour. The
usual practice is every 30 minutes, but in a high risk
case it should
be every 20 minutes. According to the clinical notes it appears
that four cardio-tocographs were taken during
the period 23:00 until
08:55 which, according to the witness, was insufficient for a patient
that was 42 weeks pregnant.
It also indicates that these
examinations were done sporadically and not continuously.
[12]
The
witness also observed that between 04:45 and 06:00 a period of one
hour and fifteen minutes passed without other observations
recorded
which is not acceptable protocol. The witness pointed out that,
according to the clinical notes, at 04:45 the plaintiff
had already
dilated 6 cm and at 06:00 it was 8 cm which he considered to be good
progress of labour. A fully dilated patient
is 10 cm which
means that the plaintiff made progress of 2 cm per hour.
He would therefore have expected the plaintiff
to be fully dilated
between 07:00 and 08:00 if the progress was normal.
[13]
With
reference to the clinical notes it was then pointed out that there
are no entries between 06:30 and 08:00. The next entry
was made
at 08:15 which means that only then was the plaintiff assessed again
by the medical staff. According to the witness
the period
between 06:00 and 08:15 would have been a critical stage of labour.
The later in labour the stronger the contractions
will be which will
increase the risk that the baby will not receive sufficient oxygen.
Having regard to the fact that this
was her second pregnancy, a
patient usually dilates faster and therefore the witness was of the
view that “it is very possible
that she was fully dilated by
07:00”.
[14]
With
regard to the entry made at 08:15 the witness pointed out that the
plaintiff was fully dilated with “head at 3/5 above
the brim”
which means that 3/5
of
the baby’s head was at that stage still above the pelvis.
He then said the following in this regard:
So, if you have a patient with a normal
obstetrical history of a previous delivery, she is now fully dilated
with 3/5 head above
the pelvis, that is a warning sign. It is
too high, something must be wrong ... this head was actually not
engaged at this
stage, at 08:15, because there was more head, 3/5,
more than 50% of the head was above the pelvis, and that is very
abnormal in
the second stage of labour ...”
[15]
When
asked, if the medical staff had followed proper protocol, would they
have been able to detect the position of the head at 3/5
earlier than 08:15, his answer was
“definitely”. He then explained the concept of
obstructive labour as follows:
"So, the power is there from above, but
there is no progress. That is an absolute diagnosis, an
absolute reliable diagnosis
of obstructive labour ... if we accept
that she was already fully dilated say at 07:00, 07:30, and now it is
08:15, it is an hour
later, and the head is still 3/5 above the
pelvis, to me it means that head remained there. So, this is
already to me obstructive
labour.”
[16]
The
witness was then asked if that is the case, what is the normal
protocol to follow and his answer was: “obstructive
labour, with the head so high, is a caesarean section”.
According to him it usually takes about ½ hour to get
a
patient in the theatre. The next entry was made at 08:30
indicating “contractions not adequate”. According
to the witness this means, at that stage, there was poor progress in
labour. When there is increased resistance, contractions
also
increase in power and also slightly in frequency, but when the
resistance is not overcome then it is almost as if the uterus
tends
to give up.
[17]
According
to the clinical notes there is another entry, also made at 08:30,
which indicates that the plaintiff was fully dilated
and the “head
visible”. The witness pointed out that for a head to go
down from 3/5
above
the pelvis to nothing above the pelvis within 15 minutes is almost
impossible. According to him it is very unlikely
for this to
have happened and therefore it should not be an indication that the
head is completely in the pelvis and the baby now
ready to be born.
The witness was then referred to the midwife’s notes dated
“09/02/2010 08:55” where it
is stated
inter
alia
that “vaginal examination
done cervix fully dilated head still high posterior position”.
The witness indicated
that at that particular point the position of
the baby had not changed, as he was still high posterior. He
gave the following
explanation in this regard:
"This was written at 08:55, so I am not
quite sure that was the point of delivery. This must be between
I would say 08:50
and the time of delivery but the head was still
high here with the posterior position. Now that perfectly fits
to everything
what we have said up to now, this is obstructive
labour.”
[18]
The
next entry relates to the birth of the child. It was made at
08:55. It reads: “Alive baby boy cord and
hand
presentation”. According to the witness this means that
when the head came out there was a hand and a cord next
to the head.
He then said the following in this regard:
"So now the picture becomes clear.
He has a posterior position, you have a hand next to the head which
increases the
diameter that must pass through the pelvis and there
was a cord. Now if that cord is compressed it will cause even
less oxygen
to the baby, so you can accept that this baby was
severely hypoxic during the process of delivery and that is
particularly between
I would say around about 08:30 and 09:00 when
the baby was born ... now if you think that half an hour
earlier there was
still 2 to 3/5 of the head above the pelvis for a
period of time and now the head was forced through with a cord next
to it, it
is no wonder that this baby has brain damage due to
insufficient oxygen. This is bad obstetric practice, I cannot
emphasise it
more, this is really bad obstetric practice. That
is to force a baby through a pelvis where it should not have
happened.
A caesarean section should have been done before
that.”
[19]
The
witness was then referred to the concluding part of his medico-legal
report dated 15 November 2012 where he pointed out the
following:
there was poor monitoring of the plaintiff with very poor
documentation; the standard protocol for the management
of a patient
in labour was not followed which increased the risk for foetal
distress passing unnoticed. Of importance is
the allowance of a
prolonged second stage of labour. The diagnosis of poor
progress during labour (first and second stage)
and the diagnosis of
foetal distress fall entirely within the practice of midwives and
general practitioners. A timely caesarean
section should have
been performed.
[20]
The
witness was finally referred to a joint report prepared and signed by
himself and Dr Marishane (Exhibit 7). One of the
issues was the
question whether a caesarean section would have prevented the
asphyxia and brain damage? According to the
minute Dr
Marishane’s opinion is that the caesarean section done in the
second stage of labour with the information at his
disposal would not
have resulted in a different outcome. According to the witness
Dr Marishane’s view on this issue
was that since the second
stage lasted only 25 minutes, there was not sufficient time to do a
timely caesarean section because
it takes about half an hour to
prepare the theatre and to get the baby out. The witness’
response was that a caesarean
section performed an hour or more
before delivery, when the head was still high, would have made a
difference by preventing hypoxia
or by decreasing the risk for
hypoxia. In this regard he also pointed out that when a second
stage lasts more than 30 to
60 minutes with a second baby and the
head remaining high, a caesarean section is indicated.
[21]
In
cross-examination the witness was asked to explain how he calculated
the period of two to two and a half hours. He responded
by
saying that at 06:00 the plaintiff was 8 cm dilated and having regard
to the clinical notes she made good progress up to 8 cm,
i.e. more or
less two centimetres per hour. If this rate of dilatation
continues, one would expect her to be fully dilated
by 07:00.
That means that she made good progress up to about 8 cm and then
for two and a half hours there was no progress.
He then used
the expression “no progress after good progress” which is
indicative of an arrest pattern the treatment
for which is a
caesarean section. With reference to his first report he also
observed that the clinical notes “are
so poor, as they were, I
have to construct a picture in my mind of how things actually
developed, and I must give a reflection
of that. That is what I
tried to do in this document.”
[22]
He
was also referred to the entry which had been made at 08:15
indicating that the foetal condition at that stage was 125 (heart)
beats per minute. The witness conceded that it was still within
normal limits, but said that he would like to see more information.
According to him this is an incomplete report, taking into account
that the patient was already 42 weeks plus pregnant and that
there
was a major delay in progress between 06:00 and 08:15. He then
pointed out that “not to record completely on
the foetal heart,
the whole pattern, all those parameters, I think that is to me, gross
negligence”. Later on he also
pointed out the absence of
notes indicating what the contraction pattern was as well as what was
found during a vaginal examination.
According to him “this
is very poor recordkeeping”.
[23]
When
the witness was referred to the entry “head visible” at
08:30 the witness explained that although the head was
showing, it
was still above the pelvis, at least 2/5, which is abnormal and a
sign of severe moulding which fits in with cephalopelvic
disproportion. When he was also referred to the foetal
condition at 08:30 indicating “the heart rate is normal she
must continue to bear down”, the witness responded as follows:
"If we take into account the fact that
there was a cord prolapsed next to the baby’s head and the
baby’s head was
already visible at 08:30 ... there must have
been cord compression ... and if there is cord compression, the
foetal heart must
have been grossly abnormal, grossly, there is no
other way ... the baby will not receive oxygen and the foetal heart
will drop.
The birth asphyxia of this child is proof of that.
So how can you say that the foetal heart was normal? I do not
see
it on the notes.”
PROF DE WIT
[24]
Prof
De Wit is a neonatologist and employed by the Steve Biko Academic
Hospital for the past 20 years. She also prepared a
medico-legal report with regard to the child in question. She
testified that on 9 February 2010 the baby was referred
from the
Tshwane District Hospital to the Steve Biko Academic Hospital.
The reason being that the referring doctor was concerned
about the
condition of the baby as a result of certain complications that had
arisen.
[25]
She
testified that on admission the baby showed certain clinical signs
that could fit in with a baby that suffered a lack of oxygen
during
or before the process of birth. In her report dated 4 April
2014 (Exhibit 4) she made the following observation:
"The nursing documentation from TDH of the
labour and delivery is very incomplete, almost impossible to read and
confusing.
In my opinion the diagnosis of abnormal presentation
in labour of a compound head, arm and cord presentation was missed
and this
could have played an important role in the outcome of Baby
Buys. An expert obstetrician needs to assess this evidence and
evaluate if there was any opportunity to act differently to prevent
this tragedy.”
BUYS
[26]
Ms
Buys is the plaintiff in this matter. She testified that she
was […….] years old when she fell pregnant.
She went to the Tshwane District Hospital on 8 February 2010.
She was then examined and sent for a sonar. After that
she was
told to go home, as it was thought she was then only 40 weeks
pregnant. She went home but did not feel well.
Later that
night she returned to the hospital.
[27]
After
her admission the medical staff monitored her labour pains and they
also performed a vaginal examination. It was then
approximately
23:30 on 8 February 2010. Her mother accompanied her to the
hospital and was sitting in a waiting area outside
the ward.
The next morning, more or less when the day staff arrived, she was
taken to the delivery room. Two student
nurses arrived and
examined her. One of them examined her internally and said that
she was fully dilated whilst the other
one started to prepare for the
actual delivery. Later on the other members of the medical
staff also arrived to assist her.
[28]
At
some stage one of the nurses noticed that she was getting exhausted
and said they would have to give her an induction.
She was also
told to prepare herself and to push as hard as she could. As
she became totally exhausted, she was unable to
push any more.
A drip was then inserted and some time later two or three doctors
also arrived who first performed an examination
and then discovered
that the child was in danger. Two or three doctors or nurses
then started pushing “on top of my
abdomen to push the baby
down so that it can go down into the birth canal”. When
the child was born, she could only
hear talking amongst the medical
staff that the child struggled with breathing and that he was having
seizures.
[29]
A
day after her child was born she prepared a written report
(10 February 2010) in her own handwriting (Exhibit 9). She
recorded the events as follows:
"Omtrent 05:00 is ek in die kraamteater in
weer geondersoek vandaar af was daar niemand by my in die teater nie
behalwe my
ma toe breek my water vir ‘n tweede keer dit was
omtrent toe so 06h00 of 06h30 gewees. Net toe die dagskof opkom
toe
begin my drukpyne toe sê ek vir my ma dat sy iemand moet
kry, sy kry toe twee studentverpleegsters wat daar verbygeloop het.
Hulle het my gemeet en gesê ek is ten volle ontsluit en reg om
te druk, toe was daar geen dokter nog by my gewees nie.
Ek was
toe al so moeg en seer gewees. Omtrent so 07h30 08h00
het hulle ‘n hoofverpleegster gekry en ‘n
dokter want ek
het gesukkel hulle sit toe eers vir my ‘n induksiedrup in om
die geboorte aan te help, die hoofverpleegster
vra toe of dit my
eerste kind is, ek sê toe nee dit is my tweede, sy vra toe of
ek probleme met die eerste gehad het toe
sê ek ja hy het nie
gesak nie en hulle moes hom uitsuig. Intussen het daar nog
dokters bygekom, een sê toe ‘o
so jy het jou reggemaak
ons gaan dit ook doen ek sê vir jou jy sal druk’.
Omtrent so 08h30 het hulle weer
die monitor opgesit en die baba
gemonitor toe hulle sien die baba is in gevaar toe het twee of drie
verpleegsters of dokters op
my maag gedruk om die baba af te druk en
‘n ander het sy hande ingedruk om die baba uit te trek en my
reg rondom laat skeur
ek het gevoel hoe skeer ek reg rondom.
Toe die baba gebore is kon ek hoor dat daar fout is want ek het
gehoor hoe sukkel
hulle om hom te kry om asem te haal, my baba is
omtrent 09h05 gebore.”
[30]
In
cross-examination it was put to her that part of her evidence in
chief differed from her written statement. She responded
by
saying that she was only answering questions and if she had left out
anything it was because it did not “reflect on the
question
that was asked”. It was also put to her that student
nurses are not allowed to examine patients. Her
response was
that the two ladies to whom she was referring to had jackets on
indicating “University of Pretoria”.
She also
explained that one of the student nurses also said that she had
already been fully dilated whereafter she was instructed
by them to
bear down and push. When they discovered that there were
problems, one of them went to call more experienced medical
staff to
come and assist. She later conceded that she might have been
confused “by nurses and doctors because there
is no 100%
indication whether it is a nurse or whether it is a doctor”.
[31]
It
was then put to her that the sister or midwife who was in charge did
not utter the words “
jy sal druk
”
as alleged by the plaintiff. She gave the
following response:
"Your honour, if I may just say, I mean I
was the one that was in labour, I was the one that was there and if
words like that
were said to me it is very difficult or very unlikely
that I would forget in a day or two, that type of words that were
uttered
to me it is, I will not forget it.”
[32]
It
was also put to her that the evidence for the defendant will be that
she was fully dilated only at 08:15, not earlier than that.
She
responded by saying that the two student nurses who her mother had
called came in. The one examined her internally and
said that
she was fully dilated. Whether this was recorded, she was
unable to say.
BUYS SR
[33]
Ms
Buys senior is the mother of the plaintiff. She confirmed that
she accompanied the plaintiff to the Tshwane District Hospital.
At some stage during the morning the plaintiff informed her that she
must start pushing. At that stage the nurses were coming
on
duty. She then found two nurses in the passage. They
assisted the plaintiff and requested her to leave the room.
EVIDENCE FOR THE DEFENDANT
SISTER MAFOLO
[34] Sister Mafolo is a professional nurse specialising in advance
midwifery and employed by the Gauteng Department of Health.
She
was on night duty on 8 February 2010. She testified that when a
patient arrives she goes to the waiting room first where
she is
examined. She met the plaintiff when she was transferred to the
delivery room. She explained that when a patient
is transferred
to the delivery room she will be in the active phase of labour.
She will be monitored every 30 minutes and
will not be left alone.
The patient will also be examined vaginally every two hours to
determine how far the cervix has dilated.
When it appears that
a patient is not making progress, action should be taken and that
patient should then be transferred.
[35] The witness confirmed that she had made the entry in Exhibit 1
on 9 February 2010 at 06:00. The entry indicates
“strong
contractions” and “8 cm dilated”. She
also explained that the patient’s file will
remain with the
patient when the day staff comes on duty. The night staff hands
over their responsibilities to the day staff
between 06:45 and
07:00. The witness also referred to various entries which had
been made in the clinical notes and she explained
the import thereof.
[36] In cross-examination she admitted that a proper and accurate
recording of observations is part of nursing protocol.
She also
admitted that when the plaintiff had arrived at her ward she was
aware that the plaintiff was already post-term and that
this was her
second pregnancy. When she was asked whether she had been aware
of the fact that the position of the baby was
ROA (right occipital
anterior) she first replied in the negative. She was then
referred to an entry under the heading “antenatal
admissions
only doctors and midwives notes” where it is indicated that the
position of the baby is ROA. Her response
was that “I
think they determined that on delivery that it is facing upwards”.
[37] She testified that she had also examined the plaintiff at
06:00. When she was asked whether she had also determined
the
position of the baby, she replied that she did a foetal heart
monitoring on the back of the baby but did not record it.
She
conceded that the position of a baby is a critical point in the
delivery process. She also said that she did not classify
the
plaintiff as a high risk patient. The witness then explained that
when a patient is transferred to the delivery room the medical
staff
do their own CTG tracing on admission. When she was asked why
did they do their own CTG tracing her answer was it is
protocol,
“every patient has to be done CTG”. She testified
that she also performed a CTG tracing on the plaintiff
after her
examination at 06:00, but was unable to indicate the results thereof
in the clinical notes or hospital records.
She conceded that
the CTG tracing is very important because the purpose thereof is to
determine the heart rate of a foetus and
also whether the foetus is
in distress or not.
[38] The witness was then referred to the labour Partogram in
Exhibit 1. She conceded that the correct protocol is to
record the vital signs of a normal patient every 30 minutes during
delivery. She conceded that between 06:00 and 08:15 no
other
time recordings had been made. She also conceded that if the
plotting of observations are not accurately kept on the
Partogram it
would be very difficult for the nursing staff to trace the progress
of a patient and in particular that of the plaintiff.
She was
unable to deny that the plaintiff could have been fully dilated at
07:00 or 07:30.
[39] In conclusion the witness conceded in cross-examination that the
nursing documentation with regard to the plaintiff is very
incomplete
and confusing. She also conceded that it could be assumed,
having regard to the absence of proper protocol, that
the plaintiff
was never observed during the period 06:30 to 08:00.
SISTER RABALAO
[40] The next witness was Sister Rabalao. She is a professional
nurse who is presently doing her Master’s Degree in
Mother and
Child Health and Advanced Midwifery. She came on duty at 07:00
on 9 February 2010 and was in charge of the Labour
and Delivery
Department in the hospital. According to her student nurses are
not allowed to do vaginal examinations, except
in the presence of a
midwife. She said that she can remember this case very well.
[41] She recorded the entry in the hospital records at 08:15.
According to her Nurse Ramafo did the vaginal examination,
but she
was not certain about the result. The witness was then called
to assist. It was also difficult for the witness
to do a
vaginal examination because when she put her finger into the vagina
she found caput and molding with regard to the child’s
head.
She also did not know what the position was of the baby’s
head. She then called the doctors to come and
assist. She
explained that when she had made the entry at 08:15 the space above
that was left open because she realised the
other nurse “did
not document anything”.
[42] The reason why she requested the assistance of two doctors was
because of the caput and molding of the baby’s head and
because
she did not know what the position of the head was. The senior
doctor arrived at 08:30. He then informed her
that the baby’s
head was down whereupon he started to deliver the baby. He
encouraged the plaintiff to bear down and
according to the hospital
records the baby was delivered at 08:55 with “cord and hand
presentation”. The witness
testified that she did not
detect this before the baby was born as “there was caput and
the head was still high”.
She further testified that
there was no indication of this presentation in the child’s
heartbeat or that a caesarean section
was necessary. She
confirmed that she is the author of the midwife’s delivery
notes in the hospital record. According
to these notes the
plaintiff was reviewed at 08:30, the head remained at 2/5 and the
foetal heart rate was 125 beats per minute.
[43] In cross-examination she confirmed that on 9 February 2010 there
were two student nurses on duty. She was unable to
state
whether or not Ms Barnard, one of the student nurses, was with
the plaintiff between 07:00 and 07:30. The witness
also
explained that with progress of labour a vaginal examination is done
every two hours whereas the vital signs and foetal heart
rate are
done every half hour. She confirmed, according to the hospital
records, that at 08:15 the foetal heart rate was
125 beats per
minute. She also explained that each line on the document
represents 30 minutes and therefore the time is not
always recorded
when the vital signs are taken and the foetal heartbeat monitored.
That (the time) can be inferred from the
pattern of lines as each
line represents 30 minutes.
[44] She was also cross-examined about the handing over of a patient
by the night staff to the day staff. She explained that
one has
to know the status of your patient with regard to gestational age and
the progress of labour. The person who received
the plaintiff
from the night staff was Sister Ramafoko. She then conceded
that information with regard to the status of the
plaintiff was not
recorded by Sister Ramafoko in the clinical notes and that her
failure to have done so, is not normal practice.
[45] When she was asked whether it would be normal for this child to
have a heart rate of 128 beats per minute at 08:30 if he was
born
with a hand and cord presentation, she replied as follows:
"Yes, it can be, less … because
with this case, with this Ms Buys, when the head is still high,
there is no compression
of the cord and she became fully dilated and
the head was still high, so there was no cord compression, until she
started bearing
down. This is where the problem starts …
According to me, I managed the patient according to the guidelines.
If the head is at two over five, it is not an indication for
caesarean section. You have to do your intervention first.”
DR MAHUBA
[46] Dr Mahuba is a medical doctor employed by the Department of
Health, Gauteng. During 2010 he was Chief Medical Officer
at
the Tshwane District Hospital. On 9 February 2010 at
approximately 08:30 he was called to assist at the delivery room.
[47] With regard to the entry made at 08:30 he was asked whether
there is any indication that the baby was in trouble. He
responded as follows:
"While if we look at the heartbeat of the
child it is 128 beats per minute with her cervix fully dilated and
head visible at
the perineum we cannot really make a judgment on a
single reading, but a heartbeat of 128 is normal.”
He also said, if the head is visible at the perineum, it would be
quicker and advisable to have a normal delivery at that stage
rather
than to do a caesarean section.
[48] In cross-examination the witness explained what a prolonged
second stage of labour is. According to him, from a second
birth onwards, it would be prolonged if it lasts more than 40
minutes. He testified that the most important part of that
period is the starting point of calculation. He then explained
that “the starting point for the counting is the full
dilation
of the cervix.”
DR COTWALL
[49] The next witness was Dr Cotwall. She testified that during
February 2010 she was employed as a medical officer at the
Tshwane
District Hospital. At that stage she was a general practitioner
who had 7 to 8 years experience. On the day
in question she was
a member of the day staff working at the Labour Ward.
[50] She testified that according to the hospital records it appears
that on the day in question she was called by Sister Rabalao
to come
and assist at the delivery room. She testified that according
to the notes she was called between 08:15 and 08:30.
She and a
junior doctor then assessed the plaintiff. As they were unsure,
or not in agreement of what should happen, the
next step was to call
a senior doctor to come and assist further. When she was asked
to explain the disagreement, she replied
by saying: “How
this baby should be born”.
[51] A senior doctor, Dr Mahoma was then requested to come and
assist. He progressed to deliver the baby normally.
The
witness confirmed that in a referral letter written by her she refers
to a “prolonged second stage” which was more
than 30
minutes. She also said that abdominal compression is not part
of their protocol and was not a practice at the Tshwane
District
Hospital when she was there.
[52] In cross-examination she conceded that there was a problem with
the delivery of the child. When she was asked to explain
she
said the following:
"Because when someone is fully dilated, we
want to deliver the baby and we want the head on the pelvis or on the
brim to be
delivered. So, she was fully dilated and the head
was far from where it should be …
So she (the mother) was in trouble. Can
we say that? --- Yes, we can say that Your Lordship.
And the foetus --- could it be in trouble too?
Can we say that? --- I went from the CTGs … at that moment
from the
notes it does not say that the baby was in trouble at that
stage.”
[53] She was then cross-examined about the disagreement. She
said the following in this regard:
"I am so sorry that I do not have such a
good memory, but it was possibly … and I am saying ‘possibly’,
because I do not … one of us … one of us possibly
wanted to take her for a caesar and the other one possibly wanted
to
deliver. So we were not agreeing, but I am not … I
do not … cannot tell you exactly what happened
…”
.
DR MARISHANE
[54] Dr Marishane is a specialist obstetrician and gynaecologist in
private practice. He is also a lecturer at the medical
school
of Medunsa. He prepared a medico-legal report, two addenda
thereto and also had a meeting with Professor Cronje whereafter
they
prepared a joint minute (Exhibit “7”).
[55] With reference to the hospital records the witness explained
that immediately after a baby is born and to improve the contractions
of the womb to stop bleeding, they will give 20 units of Pitocin.
According to his understanding the reference to “P”
in
the records was intended to refer to a plan to put 20 units of
Pitocin in one litre of Ringers Lactate.
[56] He was then referred to the entry at 08:30 where it is recorded
“cervix fully dilated, head visible”. When
asked
whether it would be advisable, at that stage, to do a caesarean
section, he responded as follows:
"No, at that stage, unless you know, you
have abnormalities and the fact that the head is there, or in the
case of twin pregnancy
or … Siamese twins and you think, you
know we are going to have a problem delivering those babies, but if
it is a singleton
baby … coming out through the vagina, you
cannot push the baby back. You want to deliver this baby.
I mean this
baby wants to come out, you have to deliver the baby.
The head is down there at the perelium, all you need to do is to
encourage
the patient to push the baby out. That is, that will
be the plan, that will be the management.”
[57] The witness was also of the view that there was not a prolonged
second stage of labour. He motivated his opinion as
follows:
"Especially if there was progress and the
patient was being monitored, the baby was, if the baby was well and
one would not
say that this is really a prolonged stage. You
must remember that prolonged stage of labour in itself is not a
problem.
It does not cause any problem as long as the baby is
fine. If the baby is fine, the pelvis adequate, if you have
prolonged
second stage, it is for you to find out why am I having a
prolonged second stage and then manage that. … So you
need
to basically make a diagnosis why am I having a prolonged
stage. So, prolonged stage in itself doesn’t cause a
problem.
It is a risk factor and the two must be
distinguished.”
[58] With reference to the joint minute the witness then confirmed
that, in his view and with the information at his disposal,
if a
caesarean section had been done during the second stage of labour, it
would not have resulted in a different outcome.
He motivated
his opinion as follows:
"I adhere to that. The patient was
in the second stage from 08:15, at least from what we gleaned here,
it seems she was
fully dilated then and there is nowhere we found
that they were saying that there is evidence of foetal distress or
foetal hypoxia
and the labour process itself appears to have been
progressing well. So, the caesarean section at that stage,
there is no
indication to have done a caesarean section, at least
with the facts at hand.”
[59] In cross-examination the witness was referred to the Partogram
and asked whether, in his view, it was completed satisfactory.
His response was that it was satisfactory, but there are some
omissions or areas that were not completed. He was referring
to
the time and then said the Partogram was completed “at 06:00,
it should be an hour, you know to the next block but at
the next
block it is 08:15 …”. He also said that the foetal
heart rate should have been completed at least every
30 minutes, but
after 06:15 until 08:15 the foetal heart rate is not completed. He
also conceded that the position of a baby
during the process of
labour is, generally speaking, a risk factor.
[60] The witness was then referred to the CTG results.
According to him the accelerations with regard to the child’s
heart rate indicated that “the baby is not fine”.
When he was asked what the hospital should have done on 8 February
2010, he responded as follows:
"What I will have advised would be turn
the patient to the side, give the patient some fluids, run a CTG for
a longer period
and see what happens if the CTG does not change, you
still have you know an unreactive CTG, then you do a Caesar.”
He pointed out that according to his interpretation it was assumed
that the CTG was done “at 10h00 pm” (i.e. at 22h00)
on
8 February 2010. According to him this reading indicates a
problem.
[61] The witness also conceded that according to the joint minute it
appears there was agreement that in all probability the CTG
scans did
not relate to the plaintiff, because they were not sure whether it
refers to her or not. According to him, in any
event, the
pattern of the CTG was not indicating that there was foetal hypoxia
during the first half of the first stage of labour.
[62] He then pointed out certain possible scenarios of what could
have caused the condition in which the baby was born. According
to him it is possible that the plaintiff could have had complete cord
compression even before she came to hospital. However,
he
conceded that this is an assumption not supported by any evidence.
When it was put to him that it is common cause the
injury occurred
during labour, he gave the following answer: “I think I
cannot say yes or no, the likelihood is that
it occurred during
labour.”
[63] Thereafter the following discussion took place during
cross-examination:
"So if we follow your course of protocol
at 22h12 or 22h40 would then place her in a natural position, would
place on a CTG
monitoring continually and if necessary depending on
what the tracing interpretation observation was you would do the
C-section
--- Yes.
Why would you do that, if you do not really
know what the outcome be, why would one then do a C-section. I
agree with you,
I fully agree with you, why would you do that? --- It
is because I will be worried that this baby’s cord is being
compressed
and as the labour progresses that compression can get
worse, do you understand. You have, you know, the baby is
compressing
on the cord, the contractions are getting stronger and
stronger. The compression appears to be partial now but if it
continues
it may be complete … so I will do a caesarean.”
The witness then also added that if he was managing the patient he
would probably have taken action earlier – a caesarean
section
if it was indicated.
[64] Later during cross-examination the witness was referred to the
period between 04h00 and 08h15 and according to him there was
acceptable progress in labour during this period. He was also
of the view that at 2/5’s the head is engaged and according
to
him “in this case head is already beyond the ischial spines,
the midpoint of the pelvis, so the head is there. That
is why I
am saying there is no yellow light.”
STUDENT NURSE BARNARD
[65] The next witness was Ms Barnard. She testified that during
February 2010 she was a student nurse in her fourth year
at the
hospital in question. According to her a student nurse was not
allowed to examine a patient on her own. Normal
procedure was
that a senior sister or a sister would supervise the student nurse.
If the student nurse also performs a procedure
on a patient, she must
record it and the sister will countersign the entry.
[66] During cross-examination and with reference to the hospital
records she conceded that she had performed a procedure (delivery
of
the placenta), but it was not countersigned by a sister. She
also explained that if another student nurse had also been
on duty on
the day in question, “then you would go around and help where
you can and to learn”. According to
her a student nurse
wears the attire of the university which, in this case, is a navy
blue scrup on which is engraved “Student
Nurse, University of
Pretoria and the name badge”.
SISTER RAMAFOKO
[67] Sister Ramafoko is a registered nurse who was employed at the
hospital in the labour ward. She qualified as a registered
nurse on 1 January 2010. On 9 February 2010 she was
stationed at the delivery rooms and was delegated to work in the
labour ward. She was on duty from 07:00 until 19:00. She
could not remember what transpired on 9 February 2010.
DISCUSSION
[68] It was contended on behalf of the plaintiff that the medical
staff of the hospital were negligent in that they failed to monitor
the labour progress of the plaintiff properly as a result whereof a
prolonged second stage of labour set in which was not timeously
noticed. It was also submitted that if the medical staff had
monitored the plaintiff’s condition properly, they would
have
been able to notice that the plaintiff’s labour was prolonged
and that they could and should have taken action timeously
by
performing a caesarean section. If a caesarean section was
performed timeously, it could have prevented the injuries referred
to
earlier.
[69] It was contended on behalf of the defendant that in this case
the emphasis is on the conduct of the nursing staff. It
was
then conceded that the absence of proper entries between 06:00 and
08:15 is below the general level of skill, care and diligence
exercised by members of the nursing profession. However, it was
argued that there is no proof that such conduct caused the
injuries
sustained by the plaintiff and her child. It was argued that
the compound birth presentation of the plaintiff, more
particularly
the cord compression, was the direct cause of the birth asphyxia.
NEGLIGENCE
[70] The question of negligence involves a twofold enquiry:
first, was the harm reasonable foreseeable? Second, would
the
diligens
paterfamilias
have taken reasonable steps to
guard against such occurrence and did the defendant fail to take
those steps? (
McIntosh v Premier, KwaZulu-Natal &
Another
2008 (6) SA 1
(SCA) par 12.) The failure of a
professional person to adhere to the general level of skill and
diligence possessed and exercised
at the time by other members of the
profession to which he or she belongs would normally constitute
negligence (
Van Wyk v Lewis
1924 AD 438
at 444 and
Goliath
v The Member of the Executive Council for Health in the Province of
the Eastern Cape
2015 (2) SA p 97 (SCA) par 8). This does
not mean that a professional person is expected to bring to bear upon
the case entrusted
to him/her the highest possible degree of
professional skill, but he or she is bound to employ reasonable skill
and care (
Mitchell v Dixon
1914 AD 519
at 525). The test
remains always whether the practitioner exercised reasonable skill
and care or, put differently, whether
or not his conduct fell below
the standard of a reasonable competent practitioner in his field
(
Castell v De Greeff
1993 (3) SA 501
(C) at 512A-B and
approved in
Buthelezi v Ndaba
2013 (5) SA 437
(SCA) par 15).
[71] Generally speaking, the answer to the question of negligence
depends upon a consideration of all the relevant facts and
circumstances.
The following dictum of Holmes JA in
Sardi v
Standard & General Insurance Co Ltd
1977 (3) SA 776
(A) at
780 G-H is apposite in this regard:
"At the end of the case, the Court has to
decide whether, on all of the evidence and the probabilities and the
inferences,
the plaintiff has discharged the onus of proof on the
pleadings on a preponderance of probability, just as the Court would
do in
any other case concerning negligence. In this final
analysis, the Court does not adopt the piecemeal approach of (a),
first
drawing the inference of negligence from the occurrence itself,
and regarding this as a prima facie case; and then (b),
deciding
whether this has been rebutted by the defendant’s
explanation.”
[72] Before considering the evidence, it is not only appropriate but
also necessary to say something about the credibility and
reliability
of the witnesses. Counsel for the plaintiff criticised the
demeanour of some of the defendant’s witnesses
and also
questioned their reliability to some extent. An
assessment of the credibility and reliability of a witness
has to
take into account the general context, the witness’
intelligence, memory and the ability to express him or herself
properly. It is a well-known fact that sometimes witnesses do
make mistakes. One should therefore distinguish between
bona
fide
errors and intentional untruths. I have had the
opportunity to observe the demeanour of all the witnesses and to
listen
carefully to their evidence and I have no reason to conclude
that any one of them was untruthful. There is, in my view, no reason
to make a finding against any witness with regard to his or her
credibility or reliability. This is a matter that should
be
decided on the evidence and probabilities.
[73] The first question to be considered relates to foreseeability.
Was the injury suffered by mother and child foreseeable?
It is
common cause that on 8 February 2010 the plaintiff was already
between 42/43 weeks of gestation and according to the
clinical notes
(antenatal admissions) the position of the baby was ROA (right
occipital anterior). According to the evidence
of Professor
Cronje this was an unfavourable position as it tends to cause
prolonged labour as well as an increase in incidents
of obstructive
labour. Sister Mafolo who was on night duty on 8 February 2010
conceded that the position of a baby is a critical
point in the
delivery process. She performed a CTG tracing on the plaintiff
after her examination at 06:00, but was unable
to indicate the
results thereof in the clinical notes. She conceded that the
CTG tracing is very important because the purpose
thereof is to
determine the heart rate of a foetus and also whether the foetus is
in distress or not. Dr Marishane also conceded
with reference
to the Partogram that there are some omissions. According to
him the foetal heart rate should have been completed
at least every
30 minutes, but after 06:15 until 08:15 the foetal heart rate is not
indicated. Sister Mafolo conceded that
if the recording of
observations are not accurately performed, it would be very difficult
for the nursing staff to trace the progress
of a patient and in
particular that of the plaintiff. Taking into account all the
evidence in this regard, there can be no
doubt that if standard
protocol for the management of a patient in labour is not followed,
such failure could cause injury or even
death. I therefore
conclude that the injury suffered by the plaintiff and her child was
foreseeable.
[74] The second leg of the enquiry relates to the reasonableness or
otherwise of the nursing staff’s conduct. Generally
speaking, the answer to this enquiry depends on a consideration of
all the relevant facts and circumstances. It involves
a value
judgment which is to be made by balancing various competing
considerations, including such factors as the degree or extent
of the
risk created by the conduct of the person concerned, the gravity of
the possible consequences and the burden of eliminating
the risk of
harm (as per Scott JA in
Cape Metropolitan Council v Graham
2001 (1) SA 1197
(SCA) at 1203, par 7).
[75] The plaintiff testified that the next morning (9 February 2010),
more or less when the day staff arrived, she was taken to
the
delivery room. Two student nurses arrived and examined her.
One of them examined her internally and said that she
was fully
dilated whilst the other one started to prepare for the actual
delivery. This should have happened more or less
between 06:45
and 07:00 as this is the time when the night staff hands over their
responsibilities to the day staff. According
to the evidence of
Prof Cronje the period between 06:00 and 08:15 would have been a
critical stage of labour. At 04:45 the
plaintiff had already
dilated 6 cm and at 06:00 it was 8 cm, which he considered to be good
progress of labour. He said a
fully dilated patient is 10 cm
which means that the plaintiff made progress of 2 cm per hour.
He would therefore have expected
the plaintiff to be fully dilated
between 07:00 and 08:00 if the progress was normal. He also
testified that, having regard
to the fact that this was her second
pregnancy, such a patient usually dilates faster and therefore he was
of the view that “it
is very possible that she was fully
dilated by 07:00”.
[76] This expert opinion corroborates the factual evidence given by
the plaintiff that she was examined by a student nurse who
informed
her that she was fully dilated. This happened the next morning
more or less when the day staff arrived, after she
had been taken to
the delivery room. Sister Mafolo was unable to deny that the
plaintiff could have been fully dilated at
07:00 or 07:30.
Having regard to the evidence in this regard, I am of the view that
it is more probable than not that the
plaintiff was already fully
dilated between 07:00 and 07:30, although this had not been recorded
in the clinical notes or hospital
records.
[77] What is the relevance of this? According to the evidence
of the plaintiff she, at some stage after she had been examined
by
the student nurse, was getting exhausted. According to her
contemporary report which she prepared the day thereafter,
she
recorded the following:
"
Ek was
toe al so moeg en seer gewees. Omtrent so 07:30-08:00 het hulle
‘n hoofverpleegster gekry en ‘n dokter
want ek het
gesukkel hulle sit toe eers vir my ‘n induksiedrup in om die
geboorte aan te help ...”
Prof Cronje testified that the later in labour the stronger the
contractions will be which will increase the risk that the baby
will
not receive sufficient oxygen. With regard to the entry made at
08:15 he pointed out that the plaintiff was then (already)
fully
dilated with “head at 3/5 above the brim” which means
that more than 50% of the baby’s head was at that
stage still
above the pelvis. According to him something must have been
wrong as the head was actually not engaged at this
stage. He
testified that this means there was poor progress in labour and this
is an absolute reliable diagnosis of obstructive
labour. His
evidence was also that if the medical staff had followed proper
protocol, they would have been able to
detect the position of the
head at 3/5 earlier than 08:15.
[78] Sister Mafolo testified that she had performed a CTG tracing on
the plaintiff after her examination at 06:00, but was unable
to
indicate the results thereof in the clinical notes or hospital
records. It therefore appears that it was only at approximately
08:15 that it was realised by the medical staff there was a problem.
That is why Sister Mafolo had decided to call sister
Rabalao to
assist. The opinion of Dr Marishane that at 08:30 a caesarean
section was not indicated was properly qualified
by him referring to
“at that stage” (i.e. at 08:30), the absence of
abnormalities and the fact that the head was already
visible.
However, the objective evidence, if it had properly been recorded,
would by then already have indicated that there
was poor progress as
the plaintiff was by then already fully dilated for approximately 1
hour. The objective evidence indicates
that there was a problem and
according to Prof Cronje this problem was obstructive labour.
[79] Having regard to all the evidence and the probabilities I am of
the view that if proper protocol was followed the medical
staff
should and would have been able to detect this problem at an earlier
stage and not as late as 08:15. This means that
when Dr Cotwall
and Dr Mahuba were called it was already too late and there is no
evidence to suggest that when they came on the
scene, they also acted
negligently. There is no acceptable explanation why proper protocol
was not followed earlier by the nursing
staff. No doubt, this
amounts to a serious deviation from the general level of skill and
diligence possessed and exercised
by members of the nursing
profession. Put differently, this conduct fell below the
standard of a reasonably competent nurse
who is supposed to monitor a
patient and record his or her findings properly. Therefore, in
my view, the person who was responsible
to have done so, but failed
in his or her duties to do so, was negligent.
CAUSATION
[80] The next question to be considered is whether such negligence
caused the injuries sustained by the plaintiff and her minor
child.
As far as causation is concerned, the following dictum in
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700E-G is apposite:
"As has previously been pointed out by
this Court, in the law of delict causation involves two distinct
enquiries. The
first is a factual one and relates to the
question as to whether the defendant’s wrongful act was a cause
of the plaintiff’s
loss. This has been referred to as
‘factual causation’. The enquiry as to factual
causation is generally
conducted by applying the so-called ‘but-for’
test, which is designed to determine whether a postulated cause can
be
identified as a causa sine qua non of the loss in question.
In order to apply this test one must make a hypothetical enquiry
as
to what probably would have happened but for the wrongful conduct of
the defendant. This enquiry may involve the mental
elimination
of the wrongful conduct and the substitution of a hypothetical cause
of lawful conduct and the posing of the question
as to whether upon
such an hypothesis plaintiff’s loss would have ensued or not.
If it would in any event have ensued,
then the wrongful conduct was
not a cause of the plaintiff’s loss; aliter, if it would not so
have ensued. If the wrongful
act is shown in this way not to be
a causa sine qua non of the loss suffered, then no legal liability
can arise. On the other
hand, demonstration that the wrongful
act was a causa sine qua non of the loss does not necessarily result
in legal liability.
The second enquiry then arises, viz whether
the wrongful act is linked sufficiently closely or directly to the
loss for legal liability
to ensue or whether, as it is said, the loss
is too remote. This is basically a juridical problem in the
solution of which
considerations of policy may play a part.
This is sometimes called ‘legal causation’.”
[81] With reference to this dictum, it was contended on behalf of the
defendant that the cause of the birth asphyxia is the compression
of
the cord. There was no blood flow or very little blood flow
through the cord some time after 08:30, meaning that the baby
received almost no oxygen during that period of time and that is why
the birth asphyxia occurred. It was further submitted
that the
birth asphyxia would in any event have occurred, even if the entries
between 06:00 and 08:15 had been made. This
is so when one
takes into account the fact that there was no foetal distress
observed thereafter. Therefore, so it was submitted,
the lack
of entries is not the factual cause of injuries sustained by the
plaintiff and her child.
[82] Sister Rabalao testified that she came on
duty at 07:00 and was in charge of the labour and delivery
department. She
examined the plaintiff and recorded her
findings to the effect that at 08:15 the plaintiff was bearing down
with each contraction
and the foetal heart rate was 125 beats per
minute. She also recorded that the cervix had fully dilated and
the head was
at 2/5 above the brim and there was also moulding and
caput. It further appears that when Dr Mahuma arrived at about
08:30,
the head was almost visible and the foetal condition (heart
rate) of the child was 128 beats per minute. The child was born
at approximately 08:55 and had a cord and hand presentation.
Dr Marishane’s evidence was to the effect that there
were
no signs of complications and there were no indications that a
caesarean section should have been performed. He also
testified
that if a caesarean section had been done during the second stage of
labour, it would not have resulted in a different
outcome.
[83] According to the evidence of Prof Cronje the baby had a
posterior position, a hand next to the head which increased the
diameter
that must pass through the pelvis and there was also a
cord. He testified that if that cord is compressed, it will
cause
less oxygen for the baby and therefore one can accept that this
baby was severely hypoxic during the process of delivery, more
particularly during about 08:30 to 09:00 when he was born. When
he was referred to a normal heart rate of 128 beats per minute
at
08:30, he responded as follows:
"If we take into account the fact that
there was a cord prolapsed next to the baby’s head and the
baby’s head was
already visible at 08:30 … there must
have been cord compression … and if there is cord compression,
the foetal heart
must have been grossly abnormal, grossly, there is
no other way … the baby will not receive oxygen and the foetal
heart
will drop. The birth asphyxia of this child is proof of
that.”
[84] This witness was also of the view that if a caesarean section
had been performed an hour or more before delivery, when the
head was
still high, that would have made a difference by preventing hypoxia
or by decreasing the risk of hypoxia. He also
pointed out that
when the second stage lasts more than 30 to 60 minutes with a second
baby and the head remains high, a caesarean
section is
indicated. It was also the evidence of Sister Mafolo that when
it appears that a patient is not making progress,
action should be
taken and the patient should then be transferred.
[85] When Dr Marishane was referred to the CTG results in
cross-examination, he was of the view that the accelerations with
regard
to the child’s heart rate indicated that “the baby
is not fine”. When he was asked what should have been
done on the 8
th
of February 2010, he explained that he
would have done a CTG for a longer period and if there was no change
(an unreactive CTG)
he would have performed a caesarean section.
When he was asked why would he have done a caesarean section if he
did not really
know what the outcome would have been, he said the
following:
"It is because I will be worried that this
baby’s cord is being compressed and as the labour progresses
that compression
can get worse … so I will do a caesarean.”
[86] What are the probabilities? It appears to be common cause,
particularly with reference to the evidence of Dr Mahuba,
that if the
second stage (from a second birth onwards) continues for more than 40
minutes after the cervix is fully dilated (to
10 cm) it is regarded
as a prolonged second stage. Dr Marishane’s opinion that
the second stage lasted only 25 minutes
during which the cord
prolapse and compression occurred appears to be questionable for the
following reasons: First, according
to his evidence the
plaintiff was in second stage from 08:15. This means that his
starting point to determine the duration
of the second stage is
08:15. His view is founded on the entry which was made at 08:15
indicating the plaintiff was fully
dilated. However, this does
not mean that the plaintiff only then became fully dilated for the
first time. I have already
concluded, having regard to the
incomplete hospital records, the evidence and the probabilities that
the plaintiff was already
fully dilated between 07:00 and 07:30.
Second, there is also the evidence of Dr Cotwall who expressed the
view in her referral
letter that there was a prolonged second stage
and that of Prof Cronje who was also referring to a prolonged second
stage of labour.
In short, having regard to all the evidence,
if the plaintiff was fully dilated by approximately 07:30 and the
baby was born by
approximately 08:55, no doubt there was indeed a
prolonged second stage of labour (i.e. much longer than 40 minutes).
[87] What is the probable cause of this prolonged second stage of
labour? According to the evidence of Dr Marishane a prolonged
second stage of labour in itself is not a problem, but a diagnosis
should be made to determine the probable cause thereof.
Prof
Cronje pointed out that according to the entry made at 08:15 the head
was at 3/5 above the brim which means that more than
50% of the
baby’s head was at that stage still above the pelvis.
According to him that was a warning sign that something
was wrong.
This, according to him, is a reliable diagnosis of obstructive
labour. He explained it as follows:
"So, the power is there from above, but
there is no progress. That is an absolute diagnosis, an
absolute reliable diagnosis
of obstructive labour … if we
accept that she was already fully dilated say at 07:00, 07:30 and now
it is 08:15, it is an
hour later, and the head is still 3/5 above the
pelvis, to me it means that head remained there.”
[88] The next entry which was made at 08:55 indicates that the child
was born with a cord and hand presentation. According
to the
evidence of Prof Cronje this completes the picture. The
child had a posterior position, a hand next to the head
which
increased the diameter of the head that must pass through the pelvis
and there was also a cord. No doubt, the obstructive
labour was
caused by this increased diameter of the baby’s head which had
to be forced through a pelvis when it should not
have happened.
[89] According to the evidence of Sister Rabalao it was not possible
to detect this cord and hand presentation before the baby
was born as
“there was caput and the head was still high”. She
also testified that there was no indication of
this presentation in
the child’s heartbeat or that a caesarean section was
necessary. Is there a factual foundation
to support this
conclusion? As a matter of fact there is none. The
hospital records are incomplete, confusing and unreliable.
It
is common cause the child suffered a hypoxic ischemic encephalopathy
during labour and according to the uncontested evidence
of
Prof Cronje the foetal heart “must have been grossly
abnormal”. Having regard to this evidence and the
fact
that the child suffered a hypoxic ischemic encephalopathy during
labour I have to conclude that, on the probabilities, this
abnormality in the foetal heart rate was either not noticed or it was
incorrectly interpreted and recorded.
[90] Prof Cronje also pointed out that if proper protocol had been
followed, the nursing staff would have been able to detect the
position of the head at 3/5 earlier than 08:15. He also
testified that the diagnosis of poor progress during labour and the
diagnosis of foetal distress as a result of obstructive labour fall
entirely within the practice of midwifes and general practitioners.
This evidence was not contradicted and should therefore be accepted.
Having regard to all the evidence referred to above
I have to
conclude that the only probable reason why this diagnosis was not
made timeously, is because proper protocol was not
followed earlier.
[91] Prof Cronje also testified that if a caesarean section had been
performed an hour or more before delivery, when the head was
still
high, it would have made a difference by preventing hypoxia or by
decreasing the risk for hypoxia. What is important
about this
evidence, is the qualification “when the head was still high”.
That is before the baby’s head,
with hand and cord
presentation, was forced through the pelvis. I have already
concluded that the plaintiff must have been
fully dilated between
07:00 and 07:30. After 40 minutes calculated from that time the
medical staff should have realised
there is a prolonged second stage
of labour which should have been a warning sign already at that early
stage. According
to the evidence of Prof Cronje at 08:15
the medical staff should also have realised that there was
obstructive labour.
He finally observed that if the cord is
compressed it would cause less oxygen to the baby “so you can
accept that this baby
was severely hypoxic during the process of
delivery and that is particularly between I would say around 08:30
and 09:00 when the
baby was born”. With reference to the
CTG results, Dr Marishane was also of the view that he would have
performed a
caesarean section already at an early stage “because
I will be worried that this baby’s cord is being compressed and
as the labour progresses that compression can get worse”.
[92] Having regard to all this evidence, I have to
conclude that, on the probabilities, if an earlier intervention was
performed,
when the head was still high and before cord compression
took place during the birth process, it would have prevented these
injuries
to mother and child. Put differently, the failure to
follow protocol, to monitor the labour process properly, and to
perform
a caesarean section timeously, are all, taken together, the
causa sine qua non
of
the loss in question. This negligence is not only the factual
cause of the plaintiff’s loss, but also the legal causation
thereof. It all happened in a hospital, over a fairly long
period and in the presence of suitably qualified medical staff
who
failed to perform their duties in a proper manner. It should
therefore also follow that the loss suffered by the plaintiff
and her
child is not too remote.
QUANTUM
[93] I was informed that the legal representatives of both parties
had the opportunity to discuss quantum, but counsel for the
defendant
was unable to obtain instructions to agree on an amount.
However, both counsel were prepared to make submissions
in an attempt
to shorten the proceedings by not leading any evidence. It is
against this background that a document (electronic
email dated 3
December 2014) was handed to me by counsel for the plaintiff.
Counsel for the defendant did not object thereto
and informed me that
“this figure will be a just compensation, but I do not have
instructions to agree on it.”
I was informed that the
quantum of both claims (plaintiff and the minor child) is
R9,631,520.00, computed as follows:
■
R198,520.00
for the plaintiff in her personal capacity;
■
R9,433,000.00
for the plaintiff in her representative capacity.
I was given to understand by both counsel that the abovementioned
amounts should be regarded as fair and reasonable. I have
no
reason to doubt the reliability of their submissions and shall
therefore accept that these amounts reflect the quantum accurately.
[94] I was also informed that the amount of R9,433,000.00 consists of
three components: R83,000.00 for future loss of earnings,
R850,000.00
for general damages and R8,500,000.00 for future medical expenses.
Both counsel were in agreement that only the amount
of R8,500,000.00
for future medical expenses is still subject to a general contingency
deduction which should be determined by
the court.
[95] It is common cause that the minor child who was born on 9
February 2010 has a life expectancy of only 12,5 years. Both
counsel were satisfied that the possibility of inflationary increases
with regard to medical costs has already been taken into
account by
the actuaries. Having regard to these facts, counsel for the
plaintiff submitted that a contingency deduction
of 10% would be fair
and reasonable, whereas counsel for the defendant submitted that it
should be 25%.
[96] Contingencies are the hazards of life that normally beset the
lives and circumstances of ordinary people (
AA Mutual Ins Co v Van
Jaarsveld
(1), The Quantum of Damages, Vol II 360 at 367) and
should therefore, by its very nature, be a process of subjective
impression
or estimation rather than objective calculation (
Shield
Ins Co Ltd v Booysen
1979 (3) SA 953
(A) at 965 G-H).
Contingencies for which allowance should be made, would usually
include the following:
■
the
possibility of errors in the estimation of life expectation;
■
the
possibility of illness which would have occurred in any event;
■
inflation
or deflation of the value of money in future; and
■
other
risks of life, such as accidents or even death, which would have
become a reality, sooner or later, in any event.
[97] In the present matter it seems to be common cause that the claim
for future medical expenses relates to the minor child only.
He
has a limited life expectancy of only about 12,5 years. He
sustained severe and permanent brain damage rendering him a
cerebral
quadriplegic. It is obvious that he will never be able to take
care of himself. It has also been conceded
by counsel for the
defendant (rightly so in my view) that most of the items pertaining
to future medical expenses will probably
be utilised. Put
differently, it is more probable than not that these expenses will
have to be incurred on his behalf. On
the other hand, the
possibility of him becoming seriously ill or that his life will come
to an end sooner as expected, should also
be taken into account.
Having regard to all these circumstances, I am of the view that a
contingency deduction of 15% should
be applied. That will
reduce the amount of R8,500,000.00 to R7,225,000.00. It brings
the total amount of both claims
to R8,356,520.00 computed as follows:
■
for
plaintiff in her personal capacity R198,520.00;
■
for
the plaintiff in her representative capacity: R83,000.00 for loss of
earnings; R850,000.00 for general damages and R7,225,000.00
for
future medical expenses.
[98] The last issue raised during argument relates to the payment of
these future medical expenses. It was argued on behalf
of the
defendant that the defendant would be entitled to an order to pay the
service providers directly instead of an order for
a monetary
compensation payable to the plaintiff. It was contended that
the quantum of damages to be awarded is in the discretion
of the
Court and an order for payment directly to the service providers
would place the plaintiff and the child in a position similar
to that
in which they would have been, but for their injuries. The
argument goes further to say there is no common law requirement
that
such a purpose must be achieved by the payment of money to a
plaintiff only.
[99] I do not agree with these submissions. First, a plaintiff who
claims damages for personal injuries, including payment of future
medical expenses, has only a single, indivisible cause of action
(
Casely v Minister of Defence
1973 (1) SA 630
(A) at 642C).
The purpose is to restore the
status quo ante
by means of an
award
ex nunc
and not
in futura
, although future
medical expenses will only be incurred in future. Second, to
determine the quantum of damages for future
medical expenses one has
to resort to a calculation expressed in monetary values. The
alternative suggested by the defendant
also assumes a “payment”
to be made directly to the persons who would provide such services.
Even if such an
order were to be granted, it would not (in the
absence of a statutory provision) be binding on a third party and
that would render
a successful plaintiff still liable for payment to
a service provider without having been compensated by the defendant.
I
can see no reason why a plaintiff should be put at the mercy
of a defendant as far as future payments to service providers are
concerned. What if such defendant fails to make those
payments? For these reasons I am of the view there is no merit
in this argument.
ORDER
:
In the result I make the following order: The draft order attached
hereto and marked “X” is made an order of
Court.
________
________________
D S FOURIE
Judge of the High Court
Pretoria
Date:
18
June
201
5