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[2024] ZAECBHC 19
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A.M v MEC for Health (401/2021) [2024] ZAECBHC 19 (6 August 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION
: BHISHO
CASE NO.: 401/2021
In the matter between:
A[...]
M[...]
Plaintiff
and
MEC FOR
HEALTH
Respondent
JUDGMENT
SUMMARY
This case involves a
claim for damages due to alleged medical negligence by the staff of
the Member of the Executive Council for
Health, Eastern Cape. The
plaintiff, A[...] M[...], acting on behalf of herself and her minor
child, L[...], claimed that the negligence
of the medical staff
during her labour and the birth of L[...] at Nelson Mandela Academic
Hospital (NMAH) on August 24, 2017, led
to L[...]'s cerebral palsy.
At trial, the issues of
liability and quantum of damages were separated, with the court
focusing solely on liability. It was conceded
that the actions of the
defendant's employees were substandard and negligent. The primary
issues were whether the cerebral palsy
was caused by a pre-partum or
intrapartum event, and whether the negligence was causally connected
to the cerebral palsy.
The plaintiff presented
evidence from four witnesses, including medical experts, who
supported the claim that the injury to L[...]'s
brain occurred
intrapartum due to prolonged labour and delayed caesarean section,
leading to hypoxic ischemic encephalopathy (HIE).
The defence
presented four witnesses but relied heavily on Dr. Keshave, whose
theories about possible pre-existing conditions causing
the HIE were
not sufficiently substantiated.
The court found in favour
of the plaintiff, concluding that the negligent monitoring and
delayed intervention by the defendant's
medical staff were the
probable causes of L[...]'s HIE and subsequent cerebral palsy. The
court ordered the defendant to pay any
damages which may be agreed or
proved and costs, including the costs of two counsel, due to the
complexity of the case.
GRIFFITHS, J.:
[1] This is an action for
damages arising from the alleged medical negligence of employees of
the defendant, the Member of the Executive
Council for Health,
Eastern Cape. The plaintiff has sued both in her personal and in her
representative capacities as mother and
natural guardian of L[...]
M[...], a minor child.
[2] At the outset of the
trial and pursuant to an agreement between the parties, I ruled that
the issues of liability and quantum
of damages were to be separated
and that only the question of liability would be determined at the
hearing.
[3] It is common cause
that the plaintiff gave birth to L[...] at Nelson Mandela Academic
Hospital (“NMAH”), Mthatha,
by way of a caesarean section
at 23:29 on 24 August, 2017, and that he suffers from cerebral palsy.
It was also apparently agreed
that the remaining issues which fell to
be determined by this court were, firstly, the question as to whether
the medical staff
of the defendant (admittedly acting within the
course and scope of their employment with the defendant) acted with
negligence during
the course of their medical supervision of the
plaintiff whilst she was in labour and during the course of the birth
of L[...]
and, secondly, whether such negligence, if proved, was
causally connected to the cerebral palsy.
[4] During argument it
seemed that the issues were narrowed down further in that, as I
understood the defence, it was conceded that
the actions of the
defendant’s employees were substandard, amounting to
negligence. Accordingly, the only remaining issues
as expressed
during argument are two interrelated issues, these being, firstly,
whether the insult which caused the cerebral palsy
occurred
pre-partum or intrapartum and, secondly, whether such negligent acts
on the part of the defendant’s staff were causally
connected
with the cerebral palsy.
[5] Four witnesses
testified on behalf of the plaintiff. These were, the plaintiff
herself, Dr Murray (an obstetrician and gyneacologist)
Dr Kara (a
pediatrician) and Prof. Andronikou (a radiologist). The defendant
also led the evidence of four witnesses, these being
Mr. Maholwana
(an ambulance driver), Dr Keshave (a pediatric neurologist), Prof.
Cooper (a pediatrician/neonatologist) and Dr Swan
(an obstetrician
and gyneacologist).
[6] Because the issues
have narrowed considerably, I do not intend to summarize the evidence
of each and every witness. The facts
leading up to the birth of the
child were testified to by the plaintiff herself as read with the
admitted hospital records. It
behoves me to mention at this stage
that the hospital records as kept by the defendant’s servants
were, generally, very cryptic
with the use of medical shorthand and,
in many instances, unintelligible. The defendant did not lead the
medical witnesses who
authored these notes and accordingly the
experts who testified, and ultimately the court, were left to
interpret and interpolate
these notes as best possible and, in many
instances, this resulted in speculation.
[7] It is however common
cause that the plaintiff was referred from Canzibe Hospital to NMAH
for a cesarean section. It is further
common cause that Canzibe is a
district hospital.
[8] According to the
plaintiff’s evidence, as read with the maternity case records,
she was a primigravida with no medical
risks. Her expected delivery
date was 16 August 2017, and she commenced her clinic visits on 24
January, 2017. There was good foetal
growth up to 38 weeks and she
was treated for a vaginal discharge during May 2017, and 27 July
2017. On the latter date, she was
admitted to hospital for a urinary
tract infection (“UTI”) and was discharged on 31 July
2017. During this, there were
no concerns relating to foetal
wellbeing. Once again, on 22 August 2017 she attended at the clinic
without complaint.
[9] On 24 August 2017,
she experienced abdominal pains and arrived at Canzibe at 13:40.
Foetal movement was felt, and she was assessed
as being 36 weeks.
There was a yellow vaginal discharge. Oxygen was administered and the
plaintiff was not informed that anything
was wrong with the baby.
[10] At 16:34 the CTG was
recorded as being “
non-reassuring
”. She was
assessed by a doctor who recorded a tender abdomen, a one cm dilated
cervix, and a greenish discharge. There were
no contractions. Foetal
distress was recorded. She was informed that as there were no doctors
in attendance, the nurse would phone
for an ambulance so that she
could be transferred to NMAH. The following was further recorded: “
?
Foetal distress and ?Chorioamnionitis. For cesarean section
”.
[11] According to the
ambulance records, the call centre received the request for an
ambulance at 17:36 and the ambulance arrived
at Canzibe, at 19:20.
Plaintiff testified that the ambulance arrived at NMAH at 21:00 and
that she was taken to theatre for the
caesarean section at 23:00.
[12] The NMAH records
reflect that at 21:40: “
the plaintiff’s blood pressure
(BP) was 149/93, and she had been referred from Canzibe with foetal
distress. The plaintiff
had labour pain from 08:00. The plaintiff
reported good foetal movement. The foetal heart rate was 140 on CTG,
cervix admitted
one finger, meconium liquor grade 4, no foul smelling
liquor or discharge. The concern on referral was foetal distress and
chorioamnionitis.
Last felt foetal movement in the morning.
Ultrasound recorded a live singleton with bradycardia, 35+ week of
gestation. CTG –
variable decelerations. For intrapartum
resuscitation and for emergency CS. Currently there is another
emergency in the theatre.
Still has to wait for blood results.”
[13] Apgar scores were
two, five and five. Thick meconium was suctioned, and mask oxygen was
administered. The baby was sent to
neonates. According to the
caesarean section record, the procedure was for foetal distress and
tachysystole. The decision to operate
was made at 21:45. There were
late decelerations and variable decelerations. The baby had low
Apgars, and a spinal anaesthetic
was administered.
[14] The summary of
labour reflects that the baby was born at 23:29 and no comment was
made regarding resuscitation. The placenta
was normal and there was
an abnormal cord with three vessels. The baby had a weak cry.
[15] Plaintiff further
testified that she had been told that the baby did not cry at birth
and had experienced seizures. When she
saw him the next morning, he
had tubes inserted and she was obliged to express milk to tube feed
him.
[16] As an aside, it
ought to be mentioned that it was argued by the defence that the
plaintiff had said in this regard that “
the baby had some
seizures while inside
…” Whilst it is correct that
this is reflected on the record, it was clarified immediately
thereafter that the interpretation
was not correct. Upon such
clarification, as confirmed by doctors Kara and Keshave who had
discussed this with the plaintiff, it
became clear that the baby
suffered such seizures post birth.
[17] The plaintiff
further testified that L[...] remained in hospital for about two
weeks after which he was transferred back to
Canzibe, from where he
was discharged. Finally, the plaintiff testified that caesarean
sections had in the past been performed
at Canzibe as her sister had
undergone such a procedure during May, 2017.
[18] Prof. Andronikou, a
radiologist who testified on behalf of the plaintiff, confirmed on
examination of the MRI scan of L[...]’s
brain that the features
represented a prior hypoxic ischemic brain injury (“HIE”)
with a watershed pattern most likely
in keeping with a prolonged
insult occurring in the perinatal period. Of importance, he excluded
chromosomal abnormalities and
highlighted that the cause of the
injury was hypoxia, and not infection. He stated clearly that the
brain pattern was not representative
of a growth restriction pattern
as growth restricted brains shrink globally causing the entire brain
to shrink, not a portion thereof.
[19] There is no dispute
that the plaintiff bears the onus regarding the disputed issues.
Regarding the question of negligence,
the onus would be discharged
were the plaintiff to establish, on a balance of probability, that a
reasonable medical practitioner
in the circumstances in which the
nurses and/or doctors at the hospital found themselves would have
foreseen the likelihood of
harm occurring (in this matter the
likelihood of harm occurring to L[...]) and would have taken steps to
guard against its occurrence,
and the practitioners concerned failed
to take such steps
[1]
. In the
case of an expert, such as a surgeon, the standard is higher than
that of the ordinary layperson and the court must consider
the
general level of skill and diligence possessed and exercised at the
time by the members of the branch of the profession to
which the
practitioner belongs
[2]
.
[20] Furthermore, where
the plaintiff has presented evidence which of itself raises, at the
very least, a
prima facie
case, an obligation in the form an
evidential onus passes to the defendant to rebut such
prima facie
case and to explain how the injury came about.
[21] It is clear, on the
evidence and as conceded by the defence and particularly Dr. Swan,
that there existed substandard care
amounting to negligence in that
there was poor monitoring of the foetal heart rate (“FHR”)
and that, as Canzibe Hospital
was a district hospital, it should have
been able to perform a caesarean section, but it did not. It seems
that Dr. Swan further
conceded that in the circumstances prevailing,
that is where Canzibe could not perform such a caesarean section,
more should have
been done by the medical staff, including regular
monitoring, to prevent foetal stress over the many ensuing hours
until 23:29
when L[...] was born at NMAH. The question which this
court has therefore to answer, is whether the plaintiff has
established,
on a preponderance of probabilities, that these actions
were the cause of the HIE.
[22] On the evidence of
the plaintiff, and in particular the expert evidence of Drs Murray
and Kara, the plaintiff made out a strong
prima facie
case
that the injury to L[...]’s brain occurred intrapartum as a
consequence of the extended labour due to the delay in getting
the
plaintiff on to the theatre table at NMAH. During this period, whilst
the foetus was in distress, the continued contractions
would have
resulted in a cumulative decrease in both the blood flow and
consequent oxygen provision to the brain. As emphasized
by all the
practitioners, this would have occurred over period, consistent with
the MRI brain pattern as described by Prof. Andronikou.
[23] Furthermore, Drs
Murray and Kara in careful and logical analyses concluded that no
other possible pre-existing condition (such
as chorioamnionitis for
example) would have been the cause of the HIE. At most, even if such
conditions had existed, these would
have resulted in a vulnerable
foetus, that is a foetus which ought to have been managed far more
carefully in the circumstances
as such features might have made the
foetus more susceptible to the stresses which occur during labour,
and particularly extended
labour. Had this been done, the medical
practitioners concerned would have been more alive to the necessity
of ensuring that full
and proper monitoring of the foetus was
undertaken and that an early intervention, such as a caesarean
section, was called for.
[24] Did the defendant
rebut this
prima
facie
case?
As stressed earlier in this judgment, the defendant called none of
the medical staff, or indeed any staff, who were involved
in the
treatment of the plaintiff during her confinement at both Canzibe and
NMAH. It is this lack of evidence which, in my view,
has resulted in
a fair degree of speculation on the part of the defence
[3]
.
[25] The major player in
the defence case appears to have been Dr Keshave. Before dealing with
his evidence, it should be said that
I regard Dr Keshave as a highly
competent and well-respected practitioner in his field, as
particularly testified to by his accepted
curriculum vitae and,
indeed, in the manner he testified.
[26] Having said this,
the impression I gained from Dr Keshave during his evidence was that
he had become wedded to the possibility
that L[...] may have suffered
an insult causing the HIE before the plaintiff went into labour. In
this regard, he referred to various
possibilities such as infection,
chorioamnionitis, growth restriction and an abnormal umbilical cord.
[27] However, under cross
examination he conceded that these possible events fell more within
the area of expertise of the obstetricians.
Despite this, it appeared
that he was not prepared to concede the evidence of Dr Murray in this
regard because he believed that
a possibility existed that some
pre-existing condition may have caused the insult.
[28] For example, Dr
Murray explained carefully and logically as to why she believed that
chorioamnionitis did not exist. Not only
did she point to the fact
that the limited recordals of the clinic examinations did not
necessarily indicate that the plaintiff
suffered from vaginal
infections, but rather from natural discharges which occur in every
pregnancy, but she explained how the
evidence available demonstrated
that it was most unlikely that the plaintiff suffered from
chorioamnionitis at any stage. Apart
from anything else, there was no
diagnosis thereof, it was merely mentioned in the final notes at
Canzibe with a question mark
next to it indicating that the staff at
Canzibe were requesting the staff at NMAH to look into this. At NMAH
it was clearly not
diagnosed. And, added to this, was Prof.
Andronikou’s evidence to the effect that the MRI scan revealed
no evidence of infection.
[29] She further
testified that even if there existed latent or hidden
chorioamnionitis which could not be detected, all the literature
indicated that it was highly unlikely that this would have any effect
on the foetus.
[30] Finally in this
regard, she testified, as conceded by Dr Swan, that chorioamnionitis
was unlikely to have been a cause of HIE
in the circumstances but, at
the most, might have made the foetus more susceptible to it. The
proximate or main cause of the HIE
in her view was clearly the insult
which occurred over a period of time during labour as I have
described earlier.
[31] Once again, Dr
Keshave became somewhat wedded to the statement in the medical
records that the foetus had an abnormal umbilical
cord. Again, he
deferred to the obstetrician and the defendant’s own
obstetrician, Dr Swan, laid this to rest by stating
that it had no
effect whatsoever.
[32] As regards the
growth restriction as a possible cause, Prof. Andronikou laid this to
rest in his evidence to the effect that
the MRI showed no features of
growth restriction to the brain.
[33] Dr. Keshave also
mentioned that in his view there was insufficient evidence to
establish the existence of cerebral palsy during
the first 24 hours
or so of the child’s life span. This, likewise, was laid to
rest by the evidence of the plaintiff as to
seizures which occurred
during this period and certain other factors such as the baby not
crying, it requiring to be fed by tube
and the low Apgar scores.
[34] All in all, it
seemed to me that Dr Keshave regarded this more as an inquiry into
possible
causes but was unable to say that any one of these
conditions, pre-existing or not, were the
probable
cause of
the HIE suffered by L[...]. This, as against the strong evidence
tendered on behalf of the plaintiff to the effect that
the probable
cause was the negligent conduct of the defendant’s staff as I
have described.
[35] This evidence caused
the defendant, in the final analysis, to argue that the court ought
to find that, “
cumulatively
”, these various
factors mentioned by Dr Keshave must have been the cause of the
cerebral palsy. This argument does not take
into account that most,
if not all, of these possible causes were discounted on the evidence
of the plaintiff on strong grounds
and, even if one or more of these
possible causes did exist, an accumulation of two or more
possibilities without more cannot equal
a probability.
[36] I accordingly find
that the plaintiff has established on a preponderance of
probabilities that L[...]’s HIE and consequent
cerebral palsy
was caused by the negligent conduct of the defendant’s
employees.
[37] The only remaining
issue is the question of costs of two counsel, as the plaintiff is
clearly entitled to her costs being the
substantially successful
party. I did not understand the defence to argue that the plaintiff
was not entitled to the costs of two
counsel and, in my view, the
complexity of this matter clearly warrants such an order.
[38] In the
circumstances, I make the following order:
1.
The
defendant is ordered to pay the plaintiff’s agreed or proven
damages both in her personal and in her representative capacities
for
and on behalf of her minor child, L[...], which damages flow from the
neurological injuries sustained by L[...] during labour
and/or
delivery at Nelson Mandela Academic Hospital on or about 24 August,
2017,
and the resultant cerebral palsy (and its sequelae) from
which he suffers.
2.
The
defendant is ordered to pay the plaintiff’s taxed or agreed
costs of suit, such costs to include the costs consequent
upon the
employment of two counsel.
R E GRIFFITHS
JUDGE OF THE HIGH
COURT
COUNSEL
FOR PLAINTIFF
:
Ms Da Silva SC
:
with Ms Mashiyi
INSTRUCTED
BY
:
Msitshana Incorporated
COUNSEL
FOR DEFENDANT
:
Mr Mpakane
INSTRUCTED
BY
:
The State Attorney
HEARD
ON
:
22 JULY 2024
DELIVERED
ON
:
06 AUGUST 2024
[1]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430;
Mukheiber
v Raath & Ano.
1999
(3) SA 1065
[2]
Mukheiber
at paragraph 32; See
generally as to the approach to evidence of expert witnesses:
JBA
obo DA MEC for Health
2022
(3) SA 475 (ECB).
[3]
Lord
Justice Brooke stated in this regard in the case of
Ratcliff
v Plymouth and Torbay Health Authority
paragraph 48 (as quoted
in
Goliath
v MEC for Health, Eastern Cape
2015
(2) SA 97
SCA at paragraph 17):
"It is likely to be
a very rare medical negligence case in which the defendants take the
risk of calling no factual evidence,
when such evidence is available
to them, of the circumstances surrounding a procedure which led to
an unexpected outcome for
a patient. If such a case should arise,
the judge should not be diverted away from the inference of
negligence dictated by the
plaintiff's evidence by mere theoretical
possibilities of how that outcome might have occurred without
negligence: the defendant's
hypothesis must have the ring of
plausibility about it…"