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[2015] ZAGPPHC 404
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G.S.B v MEC for Health and Social Development of the Gauteng Provincial Government (16223/2013) [2015] ZAGPPHC 404 (26 June 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No: 16223/2013
DATE: 18 JUNE 2015
In the matter between:
[G…………]
[S……]
[B………]
..................................................................................................
Plaintiff
And
MEC FOR HEALTH AND
SOCIAL DEVELOPMENT
OF THE GAUTENG
PROVINCIAL
GOVERNMENT
.......................................................
Defendant
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 29 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
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