Brief Summary

Medical negligence — Duty of care — Plaintiffs alleging breach of duty by healthcare providers — Second plaintiff claimed damages for birth of child with Down Syndrome due to failure to advise on risks during pregnancy — Plaintiffs asserted that had they been properly informed, they would have opted for termination — Court found that the first defendant owed a duty of care and breached this duty, resulting in damages — Liability established against the first defendant for the consequences of the negligent conduct.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned a delictual and contractual damages action arising from alleged negligent antenatal care and counselling within the public health system, culminating in the birth of a child with Down syndrome and an associated claim relating to an allegedly unlawful bilateral tubal ligation (sterilisation).

The plaintiffs were Kishore Sonny and Jayanthie Devi Sonny, husband and wife. The defendants were the Premier of the Province of KwaZulu-Natal (cited as the authority responsible for Addington Hospital and related provincial health services) and the eThekwini Municipality (responsible for the Clare Estate Clinic, a primary healthcare facility).

The action was instituted in December 2003. The parties agreed that liability would be determined separately from quantum under Rule 33(4), and the trial proceeded on separated issues over several sittings between March 2007 and March 2009. During the resumed trial on 1 December 2008, the second defendant (the municipality) made a with-prejudice settlement offer on liability, conceding 33⅓% of the plaintiffs’ damages. The plaintiffs accepted, and the lis between the plaintiffs and the municipality fell away. The case then continued only against the first defendant (the Premier).

The general subject-matter of the dispute was whether failures in antenatal management and communication—particularly following an ultrasound scan suggesting the need for a repeat scan—wrongfully deprived the second plaintiff of a timely opportunity to make an informed decision, including the possibility of a lawful termination of pregnancy, and whether the later sterilisation was performed without informed consent.

2. Material Facts

The material facts included that the second plaintiff conceived a child in February 2002 and, at the relevant time, was approximately 37 years old, placing her in a category described by expert evidence as advanced maternal age and therefore high-risk for certain complications including chromosomal abnormalities.

On 25–26 June 2002, the second plaintiff attended the Clare Estate Clinic and was referred to the antenatal clinic at Addington Hospital. At Addington Hospital, an ultrasound scan was performed at approximately 17 weeks’ gestation. The scan report noted that the foetal head was low and difficult to assess, that the lateral ventricles appeared prominent, and recommended a repeat scan in two weeks’ time.

A central factual dispute concerned what occurred at Addington Hospital immediately after the scan. The plaintiffs’ version was that the second plaintiff saw a doctor who reviewed the report, told her to return for a re-scan in two weeks, and instructed her that the clinic (Clare Estate) would handle the booking or referral process for the repeat scan. Acting on this, the second plaintiff returned to the clinic on the same day but found it closed and spoke to a nurse, who advised (incorrectly, on the plaintiffs’ version accepted by the court) that there were only two ultrasound scans in pregnancy and that there was nothing wrong with the report. The second plaintiff then remained under clinic monitoring and did not return for the Addington re-scan.

The first defendant’s position was that the second plaintiff did not see a doctor at Addington Hospital on 26 June 2002 and that she would not have required a fresh referral to return to Addington for a re-scan; on this version, the failure to return was placed substantially at the second plaintiff’s door.

In October 2002, complications were detected at the clinic (including abnormal blood pressure and sugar readings), leading to further referral and investigation. A later ultrasound at Addington suggested concern described to the second plaintiff as “water on the baby’s head”, and she was referred to King Edward VIII Hospital, where a cordocentesis was performed on 28 October 2002 to test the foetus’s chromosomal composition. The result was reported as negative for Down syndrome. The second plaintiff was accordingly informed that the baby was normal.

On 16 November 2002, the second plaintiff delivered by caesarean section, and a bilateral tubal ligation was performed. The second plaintiff had signed a consent to sterilisation, and the first plaintiff also signed. After birth, the baby was determined to have Down syndrome.

The second plaintiff testified (and the first plaintiff supported this) that if she had been told timeously of a substantial risk of severe physical or mental abnormality, she would have elected to terminate the pregnancy. This assertion was material to the causation enquiry on the “wrongful birth” damages claim.

3. Legal Issues

The court was required to determine whether the first defendant’s servants were negligent (and/or in breach of alleged contractual duties) in their management of the second plaintiff’s pregnancy, with particular focus on the events following the 26 June 2002 ultrasound and the arrangements (or lack thereof) for the urgently recommended repeat scan.

The central legal questions included whether the conduct of Addington Hospital staff in effectively sending the second plaintiff back to the clinic for arrangements created a foreseeable risk that she would not return for the re-scan, and whether reasonable steps were taken to guard against that risk, given the time sensitivity of antenatal diagnostic pathways.

A further legal issue was one of causation: whether any proven negligence was causatively linked to the birth of the child with Down syndrome, including whether earlier proper counselling and follow-up would probably have resulted in termination of the pregnancy in terms of the Choice on Termination of Pregnancy Act 92 of 1996.

The court also had to decide whether alleged negligence after 23 October 2002, including issues surrounding the cordocentesis and the reported negative result, was proved, and if so, whether it was causatively linked to the plaintiffs’ loss (including whether termination would have been offered or performed at that stage of pregnancy).

Finally, the court had to determine whether the sterilisation procedure constituted a wrongful act due to absence of informed consent, in circumstances where the second plaintiff contended that her consent was vitiated because she would not have agreed had she known the baby had Down syndrome.

The dispute involved a combination of fact (what occurred on 26 June 2002; what was communicated; what systems were in place), application of law to fact (negligence and causation), and evaluative determinations (credibility findings; reasonableness of medical steps; foreseeability; and the weight of probabilities on competing hypotheses).

4. Court’s Reasoning

The court approached negligence through the established test in Kruger v Coetzee 1966 (2) SA 428 (A), emphasising foreseeability of harm and the reasonableness of steps that should have been taken to prevent it. It also relied on Kruger v van der Merwe and Another 1966 (2) SA 266 (A) in relation to foreseeability not requiring prediction of the exact form or extent of harm, but rather the general nature of harm that might eventuate. In addressing the duty of medical practitioners to provide clear instructions when a patient must play a role in follow-up care, the court considered the reasoning quoted in Dube v Administrator 1963 (4) SA 260 (T).

A key turning point was the court’s factual finding on the contested events of 26 June 2002. The court accepted the plaintiffs as honest and credible witnesses, particularly the second plaintiff’s account that she saw a doctor, was told to return for a re-scan in two weeks, and was sent back to the clinic for the arrangements. The court considered her immediate return to the clinic on the same day as a strong probability indicator supporting her version, reasoning that this conduct was unlikely unless she had been directed to do so. It also found support for the plaintiffs’ version in the first defendant’s own pre-trial responses under Rule 37(4), which indicated that she was told to come back in two weeks and that “normally the clinic makes the booking for the patient”.

Having accepted that the second plaintiff was in effect placed back into the clinic system for arranging the re-scan, the court considered whether Addington Hospital staff were negligent in how this was handled. The court accepted that the second plaintiff was a high-risk patient and that the first ultrasound scan at least raised a “red flag” (including the prominence of ventricles as a soft marker), making timely follow-up important. While the court assumed in the first defendant’s favour that immediate same-day re-scanning might not have been practical due to logistical constraints, it emphasised that once the patient was sent “out of the hospital’s control”, the attending doctor bore a “heavy responsibility” to ensure proper counselling and clarity.

Applying the negligence test, the court held that a reasonable doctor would have foreseen the possibility that the patient might “fall through the cracks” and not return for urgent follow-up, particularly where the patient relied on public primary health facilities and might receive incorrect advice. On this basis, the court concluded that Addington staff were negligent for failing to ensure that the second plaintiff was properly informed and counselled, including an intelligible and detailed explanation of the risk, the meaning of the inconclusive scan, and the absolute necessity of urgent re-scanning. The court further held that reasonable steps would at least have included providing or causing to be provided written instruction to the clinic to make clear that a re-scan was required, thereby reducing foreseeable breakdowns in communication.

On contributory negligence, the court—drawing on the approach quoted in Dube v Administrator 1963 (4) SA 260 (T)—held that the second plaintiff’s failure to return for the re-scan was attributable to the way she was instructed and then misled within the healthcare system. It therefore found no contributory negligence on her part. The court added that contributory negligence would, in any event, not reduce the claim insofar as it was framed contractually.

On causation, the court concluded that the negligence it identified (the failure to ensure effective follow-up and counselling after the 26 June 2002 scan) was causatively connected to the birth of the child, holding that but for such negligence the child “would not have been born”. The reasoning proceeded on the premise that proper follow-up at an earlier stage would have enabled timely diagnosis and afforded an opportunity for termination in terms of the statute.

The court nonetheless addressed the later allegations regarding negligence after 23 October 2002, including the cordocentesis. It held that negligence relating to the cordocentesis and laboratory testing was not proved on a balance of probabilities. The court accepted Dr Govender’s evidence that she performed the procedure competently and that there was no basis to infer contamination or mishandling, and it found the laboratory evidence professional. Importantly, it considered laboratory evidence suggesting that even if maternal contamination had occurred, the chromosomal abnormality would likely still have been detected as a mosaic result, which undermined the plaintiffs’ contamination theory.

Further, the court held that even if negligence at that late stage had been proved, causation would fail because, on the evidence of Dr Govender, the policy in 2002 was that foeticide would not be performed for a viable foetus diagnosed with Down syndrome at that stage; accordingly, the second plaintiff would not have been afforded the opportunity to terminate the pregnancy at approximately 34 weeks.

Regarding the sterilisation claim, the court evaluated the contention that consent was not “informed” because the second plaintiff would not have consented had she known the child had Down syndrome. The court held that, at the time consent was obtained and the caesarean was performed, the attending staff reasonably believed the baby would be normal because the cordocentesis result had been negative. The court accepted evidence that the caesarean surgeon’s priority is controlling maternal bleeding and completing surgery, and that Down syndrome features can be subtle at birth and masked by blood, such that the abnormality might not be apparent to the operating surgeon at the critical moment. On this basis, it was not persuaded that the first defendant’s servants acted wrongfully, intentionally, or negligently in performing the tubal ligation.

5. Outcome and Relief

The court held that the first defendant (Premier of KwaZulu-Natal) was liable to the plaintiffs for such damages as they could prove arising from the birth of the child on 16 November 2002, based on negligence in the management and communication surrounding the required follow-up after the June 2002 ultrasound.

On the separate claim relating to the sterilisation/tubal ligation, the court found that liability was not proved and ordered that the first defendant be absolved from the instance on that claim.

The first defendant was ordered to pay the plaintiffs’ party-and-party costs to date, including (where applicable) the costs of employing two counsel, costs relating to consultations with experts (including travel time and expenses), the expenses of certain witnesses declared necessary, and the qualifying and attendance fees and expenses of specified expert witnesses.

The court further ordered that the liability for costs described above would be joint and several with the second defendant up to and including 1 December 2008, reflecting the second defendant’s earlier participation in the proceedings before the settlement on liability.

Cases Cited

Kruger v Coetzee 1966 (2) SA 428 (A)

Kruger v van der Merwe and Another 1966 (2) SA 266 (A)

Dube v Administrator 1963 (4) SA 260 (T)

Legislation Cited

Choice on Termination of Pregnancy Act 92 of 1996

Rules of Court Cited

Uniform Rules of Court, Rule 33(4)

Uniform Rules of Court, Rule 13

Uniform Rules of Court, Rule 37(4)

Held

The court found that the Addington Hospital staff (for whom the first defendant was responsible) were negligent in the manner in which the second plaintiff was handled after the initial ultrasound scan at approximately 17 weeks’ gestation, particularly by failing to provide adequate counselling and to take reasonable steps to ensure that the urgently recommended repeat scan would occur.

It held that the identified negligence was causatively linked to the eventual birth of the child with Down syndrome, and that the plaintiffs were entitled to pursue and prove damages flowing from the birth.

The court rejected the plaintiffs’ allegations of negligence regarding the later cordocentesis and associated laboratory processes, holding that negligence was not proved on a balance of probabilities and, in any event, that termination would not have been offered at that stage under the relevant policy evidence.

The court also rejected the claim that the sterilisation was wrongful for lack of informed consent, concluding that the evidence did not establish intentional or negligent wrongdoing by the first defendant’s servants in performing the tubal ligation in the circumstances.

LEGAL PRINCIPLES

Negligence was assessed with reference to the principles in Kruger v Coetzee 1966 (2) SA 428 (A), requiring foreseeability of harm and a failure to take reasonable steps to prevent it, and the foreseeability principles in Kruger v van der Merwe and Another 1966 (2) SA 266 (A), which do not demand foresight of the precise harm, but only the general nature of harm.

Where a medical practitioner justifiably relies on a patient (or another part of the health system) to implement a component of care, the court applied the principle, drawn from the discussion in Dube v Administrator 1963 (4) SA 260 (T), that there is a heightened duty to give clear, intelligible, and unambiguous instructions and warnings; failure to do so can found negligence when the patient’s non-compliance results from inadequate instruction or being misled.

On contributory negligence, the court applied the approach reflected in Dube v Administrator 1963 (4) SA 260 (T), namely that a plaintiff is generally not contributorily negligent where the apparent lack of care was induced or reasonably caused by the defendant’s conduct that misled the plaintiff into believing that inaction would not endanger safety or health.

Causation in a medical-negligence context was treated as requiring proof that the established negligence was causatively linked to the complained-of harm on a balance of probabilities; where a late-stage diagnosis would not have resulted in termination due to institutional policy and ethical practice (as proved on the evidence), the causal chain was held to be absent for that late-stage negligence claim.

Sonny and Another v Premier of the Province of Kwazulu-Natal and Another (4026/2003) [2009] ZAKZPHC 33; 2010 (1) SA 427 (KZP) ; [2010] 1 All SA 169 (KZP) (7 August 2009)