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[2024] ZAECBHC 15
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N.G obo C.G v Member of Executive Council Responsible for Health Eastern Cape Province (289/2019) [2024] ZAECBHC 15 (11 June 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
Case no: 289/2019
In the matter between:
N[…]
G[…] obo
CG
Plaintiff
and
THE MEMBER OF
EXECUTIVE COUNCIL responsible for
HEALTH:
EASTERN CAPE PROVINCE
Defendant
JUDGMENT
GQAMANA J
[1]
The plaintiff instituted an action for damages in the sum of
R28
675 443.02
in her personal and
representative capacity as the biological mother and natural guardian
of her minor child, C.G. Plaintiff seeks
to hold the defendant
vicariously liable for an alleged negligence in the management of her
labour
and sub-standard care by the nursing staff
at Holy Cross Hospital, a government hospital. The defendant in her
plea denied liability.
[2]
At the commencement of the trial, merits and quantum were separated
in terms of Rule 33(4) of the Uniform Rules of Court and proceeded
only in respect of the determination of negligence and whether such
negligence caused C.G’s brain injury and consequential
loss.
[3]
The plaintiff’s case as pleaded in the amended particulars of
claim is the following:
“
7.
On 16 February 2002, the plaintiff felt labour pains and proceeded to
hospital. Upon arrival at hospital, the plaintiff:
7.1
was assessed by a nurse;
7.2
had not had a rupture of membranes;
7.3
did not have an (sic) admission cardio topography (CTG);
7.4
had a vaginal examination done;
7.5
had the fetal heart rate of the fetus determined by means of a
fetoscope;
7.6
felt normal fetal movements, as had been the case during her
antenatal course (sic);
7.7
was a high risk patient because of her advanced maternal age and the
fact that she was multigravida but was
not treated as such;
7.8
whilst in labour and as labour progressed:
7.8.1 was made
to lie on the floor;
7.8.2 bled
profusely but the cause of the bleeding and its effect on the fetus
was not checked. Instead, the plaintiff was
made to mop her blood;
7.8.3
complained to the nurse, several times, about the intensity of the
pains. She was instructed to push even though she
had no urge to do
so;
7.8.4 probably
sustained a minor abruption placenta the effects of which were
ignored;
7.8.5
the fetal heart rate, the fetal condition was not checked;
7.8.6 was made
to push the bay (sic) at a time when she had no urge to do so and
later gave birth to [C…]; and
7.8.7
passed meconium stained liquor.
”
[4]
Based on the above allegations, plaintiff pleaded that she was
accorded substandard services by the medical and nursing staff,
and
they were negligent, and as a result of such negligence, her baby
[C.G] suffered brain injury.
[5]
The defendant denied that the plaintiff was accorded substandard care
and that her employees were negligent. The defendant however
admitted
that [
C.G
] “
was born with intrapartum fetal distress
and hypoxia which gave rise to cerebral palsy with severe
intellectual disability”
but it denied that such was caused
by the negligence of the medical and nursing staff at the hospital.
[6]
Prior to the commencement of oral evidence, parties handed in by
agreement joint minutes signed by their respective radiologists
[1]
and pediatricians and neurologists
[2]
.
The radiologists in their joint minutes are in agreement of the
nature of [
C.G
]’s
brain injury, namely that, it is a global prolonged partial hypoxic
ischemic injury in a stable and chronic stage of evolution.
[7]
Further, the pediatricians are in agreement that, the hypoxic
ischemic injury sustained before or during labour seems more probable
as a cause of [C.G]’s neonatal encephalopathy and the brain
injury. In addition, they agreed that, the presence of neonatal
encephalopathy points towards the perinatal period as the most likely
period when such brain injury occurred. However due to the
absence of
the maternity case records, they could not agree with certainty on
the timing of such brain injury. However, the Dr
Redfern opined that
the features are possible indicators of fetal distress and depression
at birth indicative of
intrapartum
asphyxia.
[8]
Plaintiff was the only factual witness who testified. Her evidence
vastly differed from most of the allegations pleaded in the
amended
particulars of claim. However, the gist of her cause of action
remained the same, that is, the nursing staff at Holy Cross
hospital
were negligent and that such negligence caused [C.G]’s brain
injury. In brief, the plaintiff’s uncontested
evidence is that,
she has five children and [C.G] is her lastborn. Plaintiff is a
retired educator.
[3]
At the time [C.G] was conceived, plaintiff was 41 years of age. Upon
confirmation of her pregnancy, plaintiff religiously attended
the
antenatal clinic, and her antenatal visits were uneventful.
[9]
On 16 February 2002, at approximately 08h30 in the morning, plaintiff
was admitted at Holy Cross Hospital complaining of labour
pains. Upon
arrival at hospital, and within a period of approximately twenty
minutes, plaintiff was attended to by a nurse (whose
name is unknown
to her). She informed the nurse that she was in labour. Without
delay, the nurse instructed her to lie on the bed,
and she was
examined. The nurse checked the fetal condition using a fetoscope.
She was informed that her baby was normal and that
she was still far
from delivery in terms of dilatation in centimeters. The plaintiff’s
blood pressure was checked, and her
urine was also tested and all
were found to be normal. After that she was instructed to wait in the
waiting room.
[10]
As she was in the waiting room, she felt strong labour pains, and
noticed that she was severely bleeding vaginally. She reported
that
to the nurse. However, the cause of the bleeding was not investigated
but, she was told that she would not be given sanitary
pads because
the nurses were waiting for her baby to be delivered. Bleeding would
occur after each contraction which happened on
several occasions and
she reported it on each occasion. Despite her reporting it to the
nurses, no action was taken nor was the
doctor called to assess and
examine her. Save for the first examination upon admission, the fetal
condition was not checked again.
[11]
Shortly after the night shift started, plaintiff experienced bleeding
again and reported same to the night shift nurse. She was
given the
same response: that she would not be given sanitary pads because they
were waiting for her to deliver. When she experienced
bleeding on the
third occasion, the nurse instructed her to lie on the bed. Before
any examination was conducted, there was a power
outage, and the
nurse instructed her to remain on the bed while looking for a
candlelight. The nurse left her in the dark unattended
for
approximately fifteen to twenty minutes. The nurse returned with a
candlelight and instructed her to push. After having pushed
for some
time, she felt the baby coming and she eventually delivered around
22h00. Her baby was in a compromised state, he did
not cry and had to
be stimulated. As the nurse was stimulating her baby, the latter
cried once. While lying on the bed, she felt
dizzy and tired and she
fell off from the bed. Plaintiff and her baby were taken to the ward
by the nurse.
[12]
In the early hours on 17 February 2002, the plaintiff’s baby
was examined by a medical doctor, who then advised her that
the baby
was sick. Her baby was also placed in an incubator and was fed with
nasogastric tube. She was also informed that her baby
had seizures.
The baby was also taken to the Intensive Care Unit (ICU) and remained
there for two days. The plaintiff and her baby
were discharged from
the hospital four or five days after her delivery.
[13]
As time progressed, the plaintiff noticed that her baby had delayed
milestones, because he only started crawling after a year.
At present
[C.G] is epileptic and fully dependent on the plaintiff for his
self-care needs.
[14]
It is against this factual evidence that I must consider the
plaintiff’s claim, taking into account the applicable legal
principles as well as the uncontested expert evidence of Dr Ashraff
Ebrahim, a qualified specialist obstetrician and gynecologist.
Dr
Ebrahim compiled an expert report about the plaintiff’s
intrapartum
care, her care in labour and the birth of [C.G]
and his conclusions are based primarily on the information conveyed
to him by the
plaintiff about the events in labour.
[15]
As a point of departure, the defendant’s legal duty of care
arose from the moment plaintiff was admitted at Holy Cross hospital
at about 08h30 in the morning on 16 February 2022. The
plaintiff’s case is that of negligent mismanagement of her
labour by the defendant’s nursing staff at the aforementioned
hospital. The defendant has admitted that, the nursing staff
were
acting within the course and scope of their employment, and that it
owes the plaintiff a duty of care. But it is disputed
that the
nursing staff were negligent and that such negligence caused [C.G]’s
brain injury.
[16]
The test for negligence is set out in
Kruger
v Coetzee
[4]
:
“
For
the purposes of liability culpa arises if:
(a)
A diligens paterfamilias in the position of the defendant:
(i)
would foresee the reasonable possibility of his conduct injuring
another in his personal property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
The defendant failed to take such steps.
”
[17]
It was submitted on behalf of the plaintiff that, the nursing staff
were aware that she was a high risk patient and as such it
was
reasonably expected of the nurses to monitor her closely using either
a CTG or a fetoscope.
[18]
Dr Ebrahim testified that plaintiff was a high risk patient because
she was of an advanced maternal age and a multigravida. Because
of
that, plaintiff was highly likely of developing complications in
labour and as such the nurses had to monitor her continuously.
[19]
According to the plaintiff’s uncontested evidence, the fetal
condition was monitored once, that is, only at the time of her
admission. Due to the absence of the medical records, this Court is
in no better position to know at what stage of labour the plaintiff
was at the time of admission. However, based on her evidence, she was
informed by the nurse on the first examination that, the
baby was
still high, and as such, she was far from delivery.
[20]
Normal progress of labour requires dilatation at a rate of 1
centimeter per hour in a primigravidae and 1.5 centimeters per hour
in multigravidae
[5]
.
During the first stage of labour (in the latent phase) i.e. when the
cervix is less than three centimeters dilated, the fetal
heart rate
has to be checked 2 hourly. But once a patient reaches the active
phase of labour the fetal heart rate has to be monitored
½
hourly - before, during and after contractions.
[21]
Dr Ebrahim testified that contractions are stressful to a fetus;
hence, the monitoring of the progress of labour is crucial, because
it informs the nurses whether the fetus is coping with each
contraction. In the absence of monitoring, the opportunity to
identify
the fetal condition and whether the fetus is in distress
would be missed.
[22]
From the information contained in [C.G]’s road to health chart,
it was mentioned that the fetus had fetal distress and had
aspirated
meconium. Meconium aspiration occurs when a newborn breathes a
mixture of meconium and amniotic fluid into the lungs
around the time
of delivery.
[23]
Dr Ebrahim testified that the meconium aspiration was associated with
fetal distress. Counsel for the plaintiff argued that because
there
was no proper monitoring, the inception, evolution and progression of
fetal distress were missed. No contrary evidence was
led on behalf of
the defendant.
[24]
From the evidence at my disposal, it appears that had the defendant’s
nursing staff properly monitored the plaintiff during
her labour,
they would have identified the fetal condition timeously and would
have been able to take reasonable and necessary
steps in terms of the
maternity guidelines to avert the outcome. But because there was
neither monitoring of the fetal condition
nor an examination of
plaintiff, for a considerable period in excess of 8 hours, the nurses
missed the opportunity to pick up that
the fetus was in distress and
to act thereon.
[25]
In addition, despite numerous reports from the plaintiff that she was
severely bleeding vaginally, the cause of such bleeding was
not
checked.
[26]
In light of this overwhelming evidence, I’m satisfied that
negligence has been established.
[27]
The plaintiff having established negligence, but for her to succeed
in her claim, she needs to prove causal link between the defendant’s
omissions, on the one hand, and the harm suffered
[6]
.
Causation has two elements, the factual issue and the legal
causation. The factual issue entails a hypothetical enquiry as to
what probability would have happened “but for” the
wrongful conduct of the defendant. With legal causation the question
is whether the wrongful act is linked sufficiently closely to the
harm suffered, if the harm is too remote, the defendant would
not be
liable.
[28]
The vital question in this matter is whether on probabilities,
[C.G]’s brain injury would in any event have ensued even if
the
defendant’s nursing staff’s negligent intrapartum care
had not occurred
[7]
.
[29]
The nature of such injury has been agreed upon by both radiologists
that, it was partial prolonged hypoxic ischemic injury. The
pediatricians also agreed that a partial prolonged injury as was seen
on [C.G]’s MRI is typically seen in cases of intrapartum
asphyxia where the insult is less severe, but occurs over a prolonged
period of time. However, they did not agree on the timing
of injury.
Dr Redfern held the view that if one has regard to the plaintiff’s
factual evidence and the information contained
in the road to health
chart, it is unlikely that the injury occurred before labour. On the
other hand, Dr Van Rensburg opined that
due to limited maternal
records available, she is unable to state with “
any
certainty”
whether the brain injury happened before or
during labour.
[30]
As a matter of law, all that is required of the plaintiff is to prove
the causal link on a balance of probabilities, and not with
certainty. From the plaintiff’s evidence, the fetal condition
was not monitored, save for that one examination upon admission,
until delivery at approximately 22h00. Signs of fetal distress during
that period were missed and that on the balance of probability
caused
the fetus to sustain the brain injury of the partial prolonged
nature.
[31]
In the circumstances, the plaintiff has succeeded to prove that her
child’s brain injury was on probability caused by the
negligence of the defendant’s nursing staff and that such
injury occurred intrapartum.
[32]
In the result, the following order is issued:
1.
The defendant shall pay 100% (one hundred percent) of the plaintiff’s
agreed or proven damages in her personal and representative
capacity
for and on behalf of her child, [CG], which damages flow from the
neurological injury sustained by [CG] during labour
at Holy Cross
Hospital on 16 February 2002 and the resultant cerebral palsy (and is
sequelae
) which he suffers from.
2.
The defendant shall pay the plaintiff’s taxed or agreed party
and party costs of suit on the High Court scale, such costs
to
include (but not necessarily be limited to) the following:
2.1
the costs attendant upon the obtaining of the medico-legal reports
and/or addendum reports and/or joint minutes, if any, of the
expert
witnesses in respect of whom notices in terms of Uniform Rule 36(9)
were filed;
2.2
the qualifying and appearance fees of the expert witnesses in respect
of whom notices in terms of Uniform Rule 36(9) were filed,
where such
fees were incurred;
2.3
the reasonable and necessary air transport and accommodation costs
and expenses in respect of expert witnesses in respect of whom
notices in terms of Uniform Rule 36(9) were filed, where such fees
were incurred; and
2.4
the reasonable fees of two counsel where such services were engaged,
including in respect of the preparation of heads of argument,
accommodation costs and expenses in respect of consultation when
preparing for trial with expert witnesses in respect of whom notices
in terms of Uniform Rule 36(9) were filed.
3.
The defendant shall pay interest on the plaintiff’s taxed or
agreed costs of suit at the prescribed statutory rate calculated
from
a date fourteen days after agreement in respect thereof, or a date
fourteen days after affixing of the taxing master’s
allocatur
,
to date of payment.
N GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
Applicants:
Adv A Bodlani SC
(together with
Adv Zito
)
Instructed
by:
Sakhela Inc, East London.
Counsel for the
Respondent:
Adv N Msizi
Instructed
by:
State Attorney,
East London.
Date heard
on:
18 March 2024
Delivered
on:
11 June 2024
[1]
Prof
Kamolane and Prof Lotz.
[2]
Drs
Redfern and Van Rensburg.
[3]
Plaintiff’s
date of birth is 17 July 1960.
[4]
1966
(2) SA428 (A)at 430E.
[5]
Clinical
Obstetrics, a South African perspective (4th edition): by H S
Cronje; et al.
[6]
Lee
v Minister of Correctional Services
2013 (2) SA 144
(CC)para [37] -
[58] and Oppelt v Head: Health, Department of Health Provincial
Administration: Western Cape
2016 (1) SA 325
(CC) para [35].
[7]
Mashongwa
v PRASA
2016 3 SA 528
(CC) para [65].