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[2015] ZAECMHC 77
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N.N v Member of the Executive Council for Health, Eastern Cape (2571/13) [2015] ZAECMHC 77 (9 July 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION : MTHATHA)
CASE NO: 2571/13
In the
matter between :
N.
N.
PLAINTIFF
And
MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH,
EASTERN
CAPE DEFENDANT
JUDGMENT
PAKADE J:-
[1]
The plaintiff commenced this action by summons claiming damages
against the defendant arising from the medical negligence of
the
medical and nursing staff in Mthatha General Hospital .
[2] The
plaintiff brings this action in her personal capacity and in her
representative capacity as the mother and natural
guardian of
her minor child, Z. who was born on [……] 2007.
[3]
The plaintiff alleged in the particulars of claim that the medical
and nursing staff breached a duty of care which they owed
the
plaintiff upon admission in the labour ward at Mthatha General
Hospital by negligently failing to examine her to determine
the
existence or otherwise of the need to perform a Caesarean
section by reason of foetal distress and as a result of the
prolonged
labour on the plaintiff, Z. suffered with cerebral damage at birth.
As a consequence of the negligent conduct of the
medical and nursing
staff of the defendant, the plaintiff suffered damages in her
personal and representative capacities amounting
to R 6 750 000.00
.
[4] The defendant pleaded prescription of the claim and a plea
over. The pleaded prescription is premised on
section 11(d)
of the
Prescription Act, 68 of 1969
which provides that a debt shall
prescribe after three years. The defendant alleges in this respect
that as the plaintiff was admitted
at Mthatha General Hospital on 1
June 2007 and summons issued on 23 October 2013 over a period of six
years four months the plaintiff’s
action has prescribed and
should, for this reason, be dismissed with costs. I would dismiss the
special plea out of hand as is
apparent from the plaintiff’s
evidence that she became aware of the cause of action in 2013 when
she met her Attorneys of
record.
[5] The defendant pleaded a
denial of the merits with an amplification that upon admission the
plaintiff was examined and foetal
signs observed and nursing staff
noted that she was 4cm dilated at 13 h55 and that liquor was clear.
Further plaintiff was put
on a monitor (the ECG) for purposes of
monitoring the foetal heart rate. Labour progressed normally with no
alarming signs until
20h00 when , during the second stage
of labour a decision was made to extract the baby through a Caesarean
section
to prevent the prolongation of labour , so goes the
defendant' s plea.
[6] In a pre-trial minute filed of record on 13
May 2015 the defendant admitted the contents of the medico- legal
reports of Professor
Lotz , Professor Smith and Dr Kara
to be what they purport to be and to be handed in at the trial
and received
as conclusive proof of the evidence embodied therein .
Further, the defendant admitted that the plaintiff’s son, Z.
presents
with acute profound hypoxic -ischemic encephalopathy which
occurred in a term brain. These reports were handed in Court by
content
together with the pre- trial minute.
[7] Further reports
filed of record are those of Dr Burgin and Dr Ndlovu on the one
hand, who did not testify and Professor
Nolte, who gave evidence. The
opinion of all these experts both in their reports and on viva vice
evidence , in respect of those
who had also testified are
characterized by complaints of lack of hospital records which , to
some extent , inhibited the conclusiveness
of their opinion . The
result is that they based their opinion on assumptions that there was
lack of monitoring of the plaintiff’s
labour progress which
resulted in foetal distress and to subsequent disability of the
child.
[8] It is common cause that this was the plaintiff’s
first pregnancy at the age of sixteen years and all the experts are
unanimous that she needed constant monitoring especially that she was
also hypertensive. She attended antenatal clinic on
7 February
2007. She had a normal medical, surgical and family history. The
expected delivery date was July 2007. The blood pressure
was recorded
as 110/70 mmHg and her weight was63 kg. Her gestational age was 23
weeks and the symphysis fundal height was 23cm.
The foetal heart was
heard and foetal movements were felt. The next antenatal visit was on
23 Match 2007. She recorded a weight
of 60 kg, blood pressure of
110/70 mmHg and there was nothing abnormal in the urine. The foetal
heart was heard and foetal movements
felt. In the two antenatal
visits the plaintiff’s maternal and foetal conditions were
normal and satisfactory.
[9] She started experiencing
contractions on 1 June 2007 at about 7 am. She went to Mthatha
General Hospital where she was admitted
on arrival. At 13h55 the
following was recorded: Bp-144/87; pulse 109bpm; cervix 4cm dilated;
foetal heart 149bpm-regular .Presenting
part 4/5
above brim;
contractions mild; spontaneous rupture of membrane -clear liquor.
This was the only hospital record of the history
of labour and child
birth of the plaintiff that was available. The plaintiff was
eventually taken to the theatre for a Caesarean
section and a boy was
born with apgars of 3/10 and 4/10. The experts opined that the road
of health chart recorded that the plaintiff
was taken for Caesarean
section because of a delayed labour in the second stage. Professor
Nolte opined that the midwives were
supposed to start a partograph at
13h55 when active labour started. They were supposed to monitor
and record the foetal heart
half - hourly, monitor the maternal
vital signs and the progress of labour 2 hourly on the partograph.
Professor Nolte recorded
that her findings were based on assumption
in the absence of records that it has not been done. Further
Professor Nolte opined
that the nurses failed to monitor the heart,
failed to start a partograph when labour had started and did not
diagnose foetal compromise
[10] Dr Ndlovu appears to have made no
assumptions in the absence of hospital records. Professor Smith based
his opinion on the
records. The only records on which the experts
founded their opinion is the Antenatal Record , Physical
Assessment Form which
was largely not completed suggesting that there
was no assessment done on the plaintiff . There is a Progress Record
which was
completed up to 13h55 on 1 June 2007. The recordings shown
are: Bp 144/87, cervix 4-cm, contraction - mild and SROM clear
liquor.
This means that as at 13h55 the cervix had dilated from 1-4
cm .The Progress Record is where the contents of the Simplistic Chart
are explained .; Road to Health Chart, Health Worker Consultation
Sheet were also the documents that were available to the experts
and
are relevant to the first stage of labour.
[11] Professor Nolte
opined that 1.3 cm dilation should take anything up to six hours. The
second stage should not be longer than
45 minutes after the woman had
started pushing. There are no records supporting this opinion and
therefore it remains an assumption.
The records supporting her
opinion should have been kept by the doctor, midwife and the nurse
who had something to do to the plaintiff
whose identity is unknown
due to absence of the maternity records. The midwife is responsible
for the patient and checks on the
work of student nurses. It is the
midwife who checks the heartbeat. The CTG machine is used in
accurately checking the heart beat
in the child to make sure that
there is no foetal breakdown. Dilation is checked 2 hourly. When one
of these things becomes abnormal
the midwife should call a doctor
immediately. It is only by close monitoring and accurate record
keeping that abnormality in the
child and mother can be detected
early in the process. If the abnormally is detected early and the
doctor called the latter may
decide to take the patient to the
theatre. Based on her calculation she concluded that
labour should have started at8pm.
It is common cause that a
decision was made at 8 pm that the plaintiff be taken to the theatre
for a Caesarean section to take
out the baby. Professor Nolte
partially conceded to a question put to her under cross examination
that the fact that a decision
was made at 8 pm to take out the baby
by Caesarean section entails that there has been monitoring . She
agreed to that contention
of Counsel for the defendant but added a
rider that it would depend on when the observation was made. She
further conceded that
in the absence of records she assumed that the
plaintiff should have fully dilated by 8 pm having regard to the fact
that dilation
progresses at the rate of 1cm per hour. She could not
conceded that she would rely on probabilities in finding that the
decision
to extract the baby was not made timeously.
[12]
Professor Odendaal corroborated Professor Nolte on the lack of
monitoring on the child. He further stated that there must
have been
a problem of oxygen during labour. But he conceded that he does not
have in-depth knowledge of the use of labour equipment.
He stated
that the following should have been done on the plaintiff when she
was 4cm dilated at 13:55 :
(a)
A partogram should have been accurately completed (the partogram is a
chart on which all maternal and foetal evaluations, medications
and
the progress of labour are recorded. There are also alert and action
lines to demonstrate slow progress as indicated by
cervical dilation.
Accurate completion of the partogram is essential as it indicates
what observations have been made and is of
utmost importance when a
woman is transferred to another facility as it provides an accurate
record of progress and management
up to that stage).
(b)
Ms Nkayiya's blood pressure and heart rate should have been observed
hourly, temperature 4 hourly and urine tested 2 hourly.
(c)Her
foetal heart rate should have been determined half hourly -before,
during and after contractions, using a hand- held Doppler
instrument.
(d) The colour and odour of the amniotic fluid should
have been recorded 2 hourly.
(e)
Frequency and strength of urine contractions should have been
recorded hourly and the level of
the presenting part, cervical
dilation , can put and moulding 2 hourly.
(f)All
medications given and all fluids administered, by whatever route,
should have been recorded.
(g)
Prolonged labour should have been detected .As the cervix was 4 cm
dilated at 13:55, one would have expected it to be fully
dilated at
20:00, based on a dilation of 1cm per hour. Yet a Caesarean section
was only done at 22:00. There was obviously a great
delay in the
progress labour which had most probably caused severe asphyxia .The
asphyxia was most probably aggravated by the safe
administration of
oxytocin, commonly used to stimulate contractions during the periods
of slow progress .
(h)Pain relief should have been offered to the
plaintiff and support and companionship provided.
(i)
The plaintiff was treated in the most inhuman way, totally ignoring
her labour pains and concerns about the condition of her
new-born
son.
(j)Plaintiff should have been observed closely for postpartum
haemorrhage.
(k)
It should have been checked if the uterus was well contracted with no
excessive vaginal bleeding.
(l)
The plaintiff’s heart rate, blood pressure and temperature
should have been recorded immediately after delivery.
(m)
The plaintiff’s pulse rate and blood pressure should have been
recorded again after one hour, with continuous assessment
of uterine
contraction and vaginal bleeding.
[13]
Dr Kara was engaged to assess the level of disability of the child
and to also advise as to whether or not the state is liable
for the
neurological state if the child. He reviewed the reports of Professor
Nolte, Professor Lotz, Professor Smith, Maternity
Case Record,
Road to Health Card,Paediatric Records and history from the
child’s mother. He also examined the child.
He found the
following disability on the child: Spastic quadriplegic cerebral
palsy- GMFCS level 3; Delayed speech; Delayed intellectual
function
both receptive and expressive; History of epilepsy (generalized) on
Phenobarbitone 60 mg/d. He observed a minimal antenatal
history and
lack of labour records as observed by his colleagues. He opined that
this was a low risk pregnancy basing that from
the fact that the
mother attended antenatal clinic only twice with no risk having been
diagnosed. He confirmed foetal distress
and birth by Caesarean
section due to delayed labour in the second stage. Deducing from the
poor apgar score of 3/10 at 1 minute
and 4/10 at 5 minutes he assumed
that the baby would have required resuscitation at birth which would
continue for more than 5
minutes and expressed a surprised that a 10
minute apgar score was not recorded. Having regarded to the absence
of labour records
an opinion of what was recorded and what was not
recorded seems to be misplaced. Dr Kara also stated that there should
at least
have been two doctors at the delivery who would have known
of the basic resuscitation and would also have known that a blood gas
analysis is essential in a child with low apgar scores. How does the
doctor know that there were no two doctors present at
the
delivery that they did not know of the basics of resuscitation and
blood gas analysis in the absence of the records? He did
not give an
opinion on negligence. He merely found that this was a
prolonged labour with foetal distress, emergency Caesarean
section was done, and baby had low apgar scores and was resuscitated
without much improvement on the score. He observed that the
baby had
a normal head size at birth which makes it less likely that there was
an antepartum insult. The baby was not growth impaired,
does not have
dysmorphic features and there was no maternal illness or obstetric
complication that could be a confounding factor.
He knew of no
postnatal factor that could have caused hypoxic brain injury.
[14]
On the day of labour, there was a foetal distress and a delayed
second stage of labour. Professor Smith observed that the plaintiff
had been in labour for 8 hours when she was taken to the theatre. He
draws a conclusion from this to mean that if the cervix dilated
at
the normal and expected rate of 1 cm per hour, she would have been
fully dilated around 20:00 which means that the second d
stage of
labour was already 120 minutes in duration when she went for
Caesarean section. He says this is excessive and would set
the foetal
up for decompression, especially with on-going uterine contractions
compressing the foetus head against the pelvic bones.
His opinion is
therefore that the second stage of labour should not exceed 45
minutes in any patient. He then concludes by saying
that "the
likelihood of that suboptimal / substandard management of the 2nd
stage of labour caused foetal distress, foetal
acidosis and neonatal
encephalopathy is high”. As alluded to already in paragraph [6]
above, the report of Professor Smith
is among the reports which were
admitted by the defendant.
[15]
Dr Singh also submitted a report and testified on behalf of the
defendant at the closure of plaintiff’s case. She differs
with
other experts in that the present condition of the child is not
associated with labour service rendered to the plaintiff.
Her opinion
is based on assumptions in the absence of labour records I the same
way as other experts who find the medical and hospital
personnel
culpable for the condition of the child. Mr Kincad , counsel for the
plaintiff sought to discredit her under cross examination
on the
basis that she is not qualified as obstetrician expert as other duly
qualified obstetricians are who have furnished reports
and testified
in this case. Dr Singh conceded that her opinion would be
inadmissible in this respect.
[16]
Labour process is legislated and regulated. There are guidelines
which guide the midwives and medical practitioners when a
person is
on labour. These are:
(a) National Health Act 61 of 2003;
(b)
Guide for Maternity Care in South Africa 2007; and
(c)
Rules of the South African Nursing Council issued under the Nursing
Act 50 of 1978.
[17]
The Constitution enjoins the State to take reasonable and legislative
and other measures within its available resources to
achieve the
progressive derealisation of the right of the people of South Africa
to have access to health care services, including
reproductive health
care
[1]
.
National Health Act 61 of 2003
was enacted in compliance with the
provisions of section 27(2) of the Constitution (the Act). The Act
was amended by the
National Health Amendment Act 12 of 2013
. Section
13 of the Act imposes an obligation on the person in charge of a
health establishment to ensure the creation and maintenance
of health
records containing prescribed information for every user of health
services. Properly reproduced the section reads thus:
" Subject
to National Archives of South Africa Act, 1996(Act 43 of 1996), and
the Promotion of Access to Information Act,
2000(Act 2 of 2000), the
person in charge of a health establishment must ensure that a health
record containing information as
may be prescribed is created and
maintained at that health establishment for every user of health
services ". The person in
charge of a health establishment in
possession of a user' s health records is obliged to set up control
measures to prevent u authorised
access to the health records and to
provide storage facility for purposes of keeping the health records
of patients
[2]
.
Any person who fails to perform the duty imposed on them by s
17(1) of the Act commits an offence punishable upon conviction.
[18]
In this case there were no health records kept and made available to
experts. The absence of these records made it impossible
for the
experts to have recourse to them in their investigation of the
plaintiff’s case, resulting in them relying solely
on
probabilities and assumptions in their finding of negligence of the
hospital personnel. There was no explanation proffered by
the
defendant for the absence of the health records of the plaintiff and
the child. The Guidelines For Maternity Care of 2007 about
which
Professor Nolte testified that all the nursing staff in South Africa
are aware of provide for the recording of all findings
of maternal
and foetal condition and of progress in labour, on the partogram.
They direct that, " as soon as the active phase
of labour is
diagnosed, they [the maternity personnel] must draw an alert line at
a slope of 1cm/hour from the first cervical dilation
that is >_4cm
dilated. Alternatively , if the partogram has pre-drawn alert line ,
the cervical dilation should be moved up
to coincide with the alert
line .The action lines drawn 2 hours to the right and parallel to the
alert line and represents the
extreme of poor progress where ' action
' is mandatory ( e.g. transfer to hospital , oxytocin infusion or
Caesarean section )".
[19]
The guidelines also contain the following information: “The
second stage commences when the cervix reaches full dilation
(10cm).
From the time that full dilation of the cervix is first noted, up to
2 hours may pass before the mother starts to bear
down. Time can only
be allowed for the head to descend onto the pelvic floor if foetal
distress and cephalopelvic disproportion
have been ruled out. The
bladder should be emptied, using a catheter if necessary. The
observation of the first stage of labour
should continue. Efforts at
bearing down are only encouraged when the foetal head starts to
distend the perineum and the mother
has an urge to push". There
are no health records to show that the maternal guidelines were
followed.
[20]
The essential averments in the particulars of claim are that the
defendant was negligent in the following respects; namely
by:
(a)
failing to permanently or temporarily employ the services of suitably
qualified and experienced medical practitioner who would
be available
and able to examine , manage and/or give appropriate advice about the
patient's labour , particularly the plaintiff
and to perform a
Caesarean section as and when required at any hospital under his
authority where patients in labour are admitted
and managed ;
(b)
failing to ensure that at least one medical practitioner was in
attendance at the Mthatha General Hospital at the material time
hereto;
(c) failing to permanently or temporarily employ the
services of suitably qualified and experienced nursing staff who
would be able
to properly assess , monitor and/or manage the
plaintiff' s labour ;
(d)
failing to ensure that the Mthatha General Hospital was suitably ,
adequately and /or properly equipped to enable the
timeous and
proper performance of a Caesarean section if and when required;
(e)
failing to ensure that patients who were admitted to the Mthatha
General Hospital would and could be transported timeously to
another
hospital or suitable medical facility should such transfer be
indicated required and/or requested ;
(f)
failing to take any or all reasonable steps to ensure proper ,
timeous and professional assessment of patients , their
monitoring
and management of labour and transfer of patients to a suitable
hospital or medical facility when indicated , required
and / or
requested ; and
(g)
failing to prevent Z. from suffering celebral damage at birth and the
consequences thereof when, by exercise of reasonable care
, skill and
diligence He could and should have done so .
[21]
On the premises set out in paragraph [21] above the plaintiff
draws the following conclusion there from, namely that
the
defendant's employees and /o agents were negligent in on or more of
the following respects, in that they:
(a)
failed to properly assess and examine the plaintiff upon her
admission;
(b)
failed to monitor the plaintiff 's labour and foetal well- being
appropriately and with sufficient regularity ;
(c)
failed to note or appreciate that the plaintiff developed
complications during her labour and that her labour was not
progressing
appropriately or as required in the circumstances ;
(d)
failed to request examination of the plaintiff by a qualified medical
practitioner when the plaintiff complained about severe
abdominal
pain;
(e) failed to monitor foetal heart appropriately , timeously
with sufficient frequency or at all ;
(f)
failed to note or appreciate the significance of the lack of
appropriate or timeous progress of the plaintiff's labour;
(g)
failed to monitor the plaintiff' s labour appropriately , timeously ,
with sufficient frequency or at all;
(h)
failed to request that a Caesarean section be performed on the
plaintiff;
(i)
failed to arrange timeously for the transfer of the plaintiff to an
appropriate facility for performance of a caesarean section;
(j)
failed to inform the plaintiff of the reasonably associated or
expected risks associated with an unduly prolonged period of
labour;
and
(k) failed to prevent Z. from suffering celebral damage at
birth and the consequences thereof when By the exercise
of
reasonable skill care and diligence , it could and
should have been prevented .
[22]
The evidence shows that according to the two antenatal visits
the plaintiff had the maternal and foetal conditions were
normal and
satisfactory but there was no physical assessment, pelvic assessment
and scan done on her. It is common cause that the
sequelae of foetal
distress was cerebral damage at the birth of the child. The foetal
distress developed at the second stage of
labour while the
defendants' employees had a duty to ensure that it does not develop.
They owe the court an explanation on
a balance of probability
as to what caused the foetal distress .There are no records of the
plaintiff' s labour at Mthatha General
Hospital to indicate what must
have caused foetal distress and what steps were taken to prevent it
from occurring . The persons
who should know what caused it and who
could and should have prevented it from occurring are those who
were assigned the duty
to manage the labour to the plaintiff. These
are the persons who were obliged to record every step relating to the
progress of
the plaintiff's labour, record the steps they had taken
and indicate up to what stage they made a decision to extract the
child
by Caesarean section. It is that record which would indicate
that the second stage of plaintiff’s labour was effectively
managed and monitored. There is no indication whatsoever
proffered by way of an explanation that the defendants' employees
exercised a duty of care towards the plaintiff and that explanation
would have been embodied in the Mthatha General Hospital records
and
from the staff including the doctor who were assigned to manage and
monitor the labour of the plaintiff. The mere saying so
by Mr Jozana,
counsel for the defendant from the bar, that the plaintiff’s
labour was monitored does not carry the day. As
already alluded to
above, that information should been on Mthatha General Hospital
records and from the medical doctor and nurses
and midwives who
giving labour to the plaintiff.
[23] A case similar to the
case in
casu
is the reportable but not yet reported judgment of the Southern
Gauteng High Court of Lungile Ntsele v MEC for Health , Gauteng
Provincial Government , case no. 2009/52394, the judgment of
Mokgoatlheng J delivered on 24 October 2012. The learned Judge
invoked
the doctrine of
Res
Ipsa Loquitur
and
found that the defendants' employees were negligent. He reasoned at
paragraph (113) of the judgment that " There is an
obligation on
the defendant to explain how A's cerebral palsy occurred if the
plaintiff and A were accorded the requisite treatment,
because quite
clearly the evidence raises a prima facie case of negligence against
the defendant's employees. The defendant has
not explained how the
cerebral palsy attributable to peri- natal asphyxia could have
occurred without his employees negligence
" The duty of care is
linked to the skill which the defendants' employees had to the
plaintiff which by failure to record
that they exercised it to the
plaintiff and by failure to adduce evidence thereon resulted in their
failure to exercise a duty
of care and thus negligence on their part.
I agree with the reasoning of the learned Judge in the Ntsele
judgment. The duty of
care arises from the
National Health Act and
the universal guidelines for Maternity Care in South Africa 2007 in
terms whereof the maternity staff have to manage and monitor
the
labour of patients admitted in a hospital for labour, to record what
they have done and keep the records relating to each patient.
The
defendants' employees failed to adhere to these guidelines and to the
provisions of the Act.
[24]
In the result, the following order is made:
1.
The defendant is liable to pay 100% of such damages as the plaintiff
may have been able to prove;
2.
The defendant shall pay costs of suit, such costs to include the
costs of two counsel and the qualifying expenses of the following
expert witnesses, including their travelling expenses of April and 13
May 2015 respectively:
(a) Prof Smith;
(b)
Prof Nolte;
(c)
Prof Odendaal;
(d)
Prof Lotz;
(e)
Dr Ndlovu;and
(f)
Dr Burgin
______________________
L.P.Pakade
JUDGE OF THE HIGH COURT
FOR
THE PLAINTIFF
: Adv Kincaid
Instructed
by
: Mpambaniso Attorneys
63 Grey Street
Queenstown
FOR
THE DEFENDANT
:
Adv Jozana
Instructed
by
: State Attorney
Sisson Street
Fortgale
HEARD
ON
: 13-15 May 2015
DELIVERED
ON
: 09 July 2015
[1]
S. 27(2) of the Constitution of the Republic of
South Africa, Act 108 of 1996
[2]
S17(1) of the Act