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[2024] ZAECELLC 41
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P.M obo Y.M v Member of the Executive Council for Health Eastern Cape Province (EL1118/2022) [2024] ZAECELLC 41 (20 August 2024)
FLYNOTES:
MEDICAL NEGLIGENCE – Uncooperative patient –
Informed
refusal
–
Baby
born with brain damage – Mother removed CTG and was
uncooperative, aggressive and violent – Repeated attempts
at
monitoring by staff – Severely compromised in performing
their duties, particularly in terms of Maternity Guidelines
–
Plaintiff’s refused to be monitored and managed – Was
repeatedly warned of the risks associated with
her refusal –
Failed to discharge the onus of proving negligence –
Plaintiff’s claim is dismissed.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION : EAST LONDON CIRCUIT COURT)
CASE
NO. EL1118/2022
In
the matter between:
P[...]
M[...] obo
Y[...]
M[...]
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE PROVINCE
Defendant
JUDGMENT
COLLETT
AJ:
Introduction
[1]
The plaintiff issued summons against the defendant claiming damages
on behalf of
Y[...]
(hereafter referred to as ‘
YM’
)
relating to a brain injury sustained by her allegedly as a
consequence of negligent treatment she received during her birth and
confinement in Frere Hospital, East London (hereinafter referred to
as ‘
FH
’)
[2]
The parties agreed that there would be a separation of issues in
terms of
Rule 33(4)
of the
Uniform Rules of Court
(hereinafter referred to as ‘
the Rules’
) with
liability to be established firstly and quantum to stand over for
later determination. Accordingly, the trial proceeded
solely on
the issue of the alleged negligence of the defendant’s
employees. The plaintiff alleged a breach of duty of care
and
negligence by the defendant’s employees at
FH
towards
her and
YM
in utero
during her confinement from 2 to 5
November 2021.
[3]
The crux of the matter is whether the
hypoxic ischaemic
encephalopathy
(hereinafter referred to as ‘
HIE
’)
suffered by
YM
was caused by the negligent conduct of the
defendant’s employees at
FH.
[4]
The issues for consideration in this matter are limited. It is
common cause
that an injury to
YM
occurred
intrapartum
causing
YM
to be born asphyxiated, requiring resuscitation and
giving rise to the
HIE
and
sequelae
suffered by
YM.
[5]
The gist of the negligence alleged by the plaintiff appears to be,
the failure to
monitor the plaintiff adequately or at all, the
administration of doses of
Misoprostol
which were higher
than recommended causing
tachysystole
and
hyper uterine
contractions and the failure to timeously perform a
caesarean
section
.
[6]
Whilst the defendant admits the
HIE
due to perinatal asphyxia,
it is denied that the same was occasioned by the negligence of the
defendant either in relation to the
administration of the
Misoprostol
, monitoring or the alleged delay in performing a
caesarean section
. The defendant avers that due to the
plaintiff’s non-cooperation, which was tantamount to a refusal
of medical treatment,
the defendant’s employees were unable to
adequately monitor the plaintiff
.
Accordingly, the
defendant’s employees were not alerted to the events that may
have led to the
HIE
and thus provided with an opportunity to
make appropriate interventions to address any impending
HIE
.
Rule
37 Admissions
[7]
The efficiency in the conduct and conclusion of litigation is,
inter
alia
,
facilitated by
rule
37
of
the
Rules
which
envisages the expedition of trials by the potential limitation of
issues resulting in cost-saving for all litigants. To permit
a party
to resile from agreements reached at a
pre-trial
conference
would
frustrate and negate the very purpose of the
rule
aimed
at limiting the disputed issues of the litigation.
[1]
Our courts have repeatedly held that where parties have consciously
agreed on issues that curtail the proceedings, save for special
circumstances, the parties must be held to such agreements.
[2]
[8]
It was specifically agreed at a
pre-trial
conference
on
12 April 2023, that the medical records, expert reports and clinical
notes would be accepted into evidence as what they purport
to be
without the necessity of formal proof. The medical and clinical
records at
FH
will be referred to as ‘
maternity
records’
for the sake of convenience.
[9]
There was similarly no dispute regarding
The Guidelines for
Maternity Care in South Africa, fourth edition 2016
(hereinafter
referred to as ‘
Maternity Guidelines’
) which were
accepted without formal proof.
[10]
Significantly, the
pre-trial minute
dated 12 April 2023
records:
‘
documents can,
without further proof, serve as evidence of what they purport to be
and may be proved without the need to prove the
whole document and/or
to reach further agreement regarding the proof of documents at the
trial; and
Clinical notes be
accepted into evidence as being what they purport to be without the
necessity of formally providing the documents,
but without
necessarily admitting the correctness of the contents of the
documents in question’
[11]
It deserves mention that the plaintiff at no stage either sought to
retract the admissions or
contest the correctness thereof and
accordingly remains bound thereby. Nonetheless, as will become
apparent hereunder, the plaintiff
contended that the entries made by
Sister Nyenyeko
should be rejected by the court as
hearsay evidence and are thus inadmissible. Whilst this is in
conflict with the aforementioned
agreement, it will be considered
further hereunder.
The
pleadings
[12]
The factual basis of the plaintiff’s claim is set out in the
amended particulars of claim
containing some twenty-eight
grounds of negligence. The defendant denied the grounds of
negligence but specifically that the
plaintiff endured a prolonged
labour, that it breached a legal duty or obligation, that its
employees were negligent or provided
the plaintiff with substandard
care, that the administration of
Misoprostal
and
extra
amniotic saline infusion
ever caused
tachysystole
or that
the employees did not administer
tocolytic
or agents with such
effect on the plaintiff.
[13]
The defendant pleaded that the conduct of the defendant’s
employees, even if established,
was not causally related to the
development of
YM’s
brain injury
.
The defendant
specifically pleaded that the plaintiff’s uncooperative conduct
which persisted in the labour ward and refusal
to accept the required
maternal and fetal monitoring, hampered the monitoring and management
of the plaintiff.
[14]
Lastly, the defendant pleaded that but for the plaintiff’s
conduct and refusal of medical
treatment, the employees of the
defendant would have been alerted to the onset of the development of
HIE
and could have taken appropriate and timeous
interventions.
[15]
During the of the trial, more particularly after the plaintiff
had testified and during
the cross-examination of
Dr
Ndjapa-Ndamkou
(hereinafter referred to as ‘
Dr
Ndjapa’),
defendant’s counsel became aware that the
maternity records
in possession of both parties were
incomplete and that additional documentation was available. The
matter was postponed to afford
both parties an opportunity to
consider the additional documentation and take such steps as they may
deem necessary.
[16]
Significantly, after the postponement and having completed her
testimony, the plaintiff
amended her
particulars of
claim
and the following were pleaded as additional grounds
of negligence:
‘
13.20 Failed to
perform the Caesarean section at the earliest indication
that
the Plaintiff was being uncooperative
to the
extent of being unable to be adequately monitored;
13.22 Failed to
perform the Caesarean section at the earliest
indication of the
plaintiff being uncooperative
at 03:00 on the 5 November 2021, as
opposed to at 07:30 when the Caesarean section was performed for the
same reason of the Plaintiff
being uncooperative, which allowed
hypoxia to develop and persist and causing damage to the fetus.’
(own emphasis)
[17]
In essence, despite the plaintiff’s evidence that she was
not
uncooperative, the amendment to the pleadings was directly in
conflict therewith. Significantly, the non-cooperation by the
plaintiff is central to the consideration of the care afforded to the
plaintiff by the defendant’s employees and the issue
of
negligence.
Joint Minutes
Dr
B. Alheit and T. Kamolane
[18]
A joint minute was filed by the radiologists. Essentially, they
agreed on a watershed (prolonged
partial pattern) hypoxic ischaemic
injury. The experts deferred the cause and probable timing of
the
HIE
to the experts in neonatology and obstetrics.
Professor
Cooper and Dr Kara
[19]
A joint minute was filed by the paediatricians. It was agreed
that upon the plaintiff’s
admission on 2 November 2021
there was no concern over the fetal condition despite hypertension
and therefore unlikely that
there was any brain injury. The
plaintiff was induced on 3/4 November but active labour
commenced at 01h00 on 5 November
2022.
[20]
YM
was born by
caesarean section
on 5 November 2021 at
07h00 with Apgar scores of 3/10; 6/10 and 7/10 as a flat baby who was
resuscitated for 12 minutes with neurological
depression at birth.
There was no objective evidence of fetal distress.
[21]
It deserves mention that
Dr Kara
did present
viva voce
evidence at the trial essentially concerning the brain injury of
YM
which, it was understood, was not in dispute.
He concluded that the
HIE
probably occurred during the
intrapartum
period. The exact timing could not be pinpointed.
Dr Ndjapa-Ndamkou
and
Mama-Asu Afau Peprah
[22]
The agreement was that there were gaps in the fetal heart rate
monitoring which may have resulted
in the baby being born with birth
asphyxia. However, the experts differed on whether the defendant’s
staff were negligent
or whether this was due to the lack of
cooperation by the plaintiff.
[23]
A doppler scan on admission revealed that
YM
had a chord
around her neck. Both obstetricians agreed that there was a
need for delivery but differed on the mode of delivery.
The
plaintiff’s condition was clinically stable and her blood
results were normal suggesting that there was sufficient time
to
attempt induction of labour. Both doctors testified during the trial
and their evidence is referred to
infra.
Factual Evidence
P[...] M[...]
[24]
The plaintiff was a 29 year old
prima gravida
who
attended at
FH
on 2 November 2021, after being referred
by the clinic pursuant to an antenatal visit, for elevated
blood pressure.
Upon arriving at
FH,
there was no
indication of high blood pressure but after being examined, she was
admitted to
FH
seemingly as she was at term gestation
and was being observed for
pre-eclampsia
. A
cardiotocography
(hereinafter referred to as ‘
CTG’
)
was performed showing good variability of fetal heart rate.
[25]
The plaintiff testified about ‘
a bulb’
being
inserted into her and to drinking 50ml of
Misoprostal
at
a time from around 11. She was given
Misoprostal
after 3 hours
and again about 3 to 4 times. She was examined every 3 hours.
She confirms that a ‘
belt’
(obviously referring to
the
CTG
) was put on her to check contractions during the
administration of
Misoprostal
and also indicated that the
‘
belt’
was used to check the child’s
heartbeat. She experienced cramps at 21h00 that were intense and she
called the nurse and was
instructed to get on the bed. The
‘
belt’
was put on her and she received a vaginal
examination whereafter she was told that she was about to give birth
so she must quickly
go to the labour ward.
[26]
According to the plaintiff, the labour ward was on the upper level
and she was crawling up the
stairs carrying her ‘
plastic’
containing with her clothes and food. When she arrived at the labour
ward, she was told to climb on the bed and the heartbeat of
her child
and her blood pressure were checked. The contractions were intense
and she was told to push and this was around 23h00
to 24h00 whilst
the nurse was sitting at the door. She indicated that at some stage a
drip was inserted into her arm and she was
told to get up and quickly
go to the theatre after the heart rate was checked.
[27]
She was not given anything for pain. She was told to get out of
bed because the baby was
coming and she said:
‘
MS M[...]
I felt,
M’Lady that if there was something that is coming from me…
there was too much blood that was coming M’Lady
down the leg’
[28]
She was made to walk to theatre being pushed by the staff who were
shouting at her whilst she
was carrying the drip with her hands and
testified:
‘
MS
M[...]
I
arrived at the theatre opening the door on my own the doctor inside
was shocked asking myself why did they let me go by myself
on feet’
[29]
The plaintiff, in referring to the doctors, said:
‘
MS M[...]
they
assisted me to avoid to suppress the head of the child and to always
keep my legs opened’
[30]
She received an injection at ‘
the back of the waist on
the upper part’
and shortly thereafter a
caesarean
section
was performed and the baby was born. She was apparently
told that she gave birth at 07h00. She did not see
YM
or hear
her cry. On 6 November 2021 she was taken to the nursery
by a nurse where she saw
YM.
The nurses ‘
shouted
’
at her saying she caused damage to
YM
who could not
breastfeed and was fed with a syringe. They were discharged on
15 November 2021. The plaintiff denied
that she was not
cooperating with the staff. This stance was re-iterated when she was
recalled to testify pursuant to the additional
maternity records
that were presented by the defendant’s counsel and despite the
amendment to the
particulars of claim
regarding her
non-cooperation.
Sister
Mahlulo
[31]
Sister Mahlulo
testified that she was working at
FH
as
an advanced midwife and was on duty on 4 November 2021. She said that
plaintiff came from M5 to her ward M2 when she was
in active
labour and stated as follows:
‘
MS
MAHLULO M[...] came
to me when she was from M5, M5 ward. When she was from
M5 ward
she came to me. This M5 ward, M’ Lady is an antenatal
ward. The come from M5 to M2 ward when they are
about to give
birth
MR
BODLANI yes,
continue
MS MAHLULO
The escorting nurse then will brief you with notes and the condition
of the patient she is escorting at that time, M’ Lady.
When she was brought to me she was at the stage which is called
active labour, M’Lady. That simply means, she was about
to give birth’
[32]
She vaginally examined the plaintiff on arrival at the labour ward at
23h15 and established that she
was 3 to 4 cm dilated and in
active labour. The
CTG
that had been performed in M5 ward was normal (reactive). The
plaintiff was reported to be in pain so
Sister
Mahlulo
sedated the plaintiff with 50 mg of
Pethadine
and
25 mg of
Promethazine
for
pain and progress of labour. This was recorded in the
maternity
record.
[33]
At 0h48,
Dr Valentine,
who was called by
Sister Mahlulo,
recorded a normal
CTG,
confirmed that the plaintiff was 3 to 4
cm dilated and instructed that the plaintiff was to be reviewed
at 03h15. Patients
in the latent phase of labour are reviewed four
hourly according to protocol.
[34]
Sister Mahlulo
was being assisted in the labour ward by
Sister
Nyenyeko.
Around 03h15 she was made aware that the plaintiff had
become uncooperative, climbing out of the bed and removing the
CTG.
A recording in the
maternity records
was made by
Sister
Nyenyeko
in this regard and the behaviour of the plaintiff was
witnessed by
Sister Mahlulo.
She testified that she had also
offered the plaintiff a
CTG
but she refused.
[35]
Sister Mahlulo
testified about the plaintiff’s
non-cooperation stating that she had been ‘
pushing’
since 4cm dilated, refused to lie on the bed or have fetal or
maternal monitoring. She counselled the plaintiff regarding
her
conduct to no avail and then sought the assistance of
Dr
Valentine
around 04h00. She made a recording in the
maternity
records
at 04h00 to this effect
.
[36]
She testified that
Dr Valentine
came to the plaintiff around
this time and counselled her about the dangers of refusing
observations and fetal monitoring. She testified
that as she was not
able to monitor the fetal heartrate because the plaintiff refused the
CTG,
she would be unable to intervene if problems arose
requiring remedial action. Her evidence was that besides her,
Dr
Valentine
and
Sister Nyenyeko
attempted to counsel the
plaintiff but to no avail.
[37]
She was unable to use a fetoscope because the plaintiff was
‘…
not prepared to cooperate, she was a bit violent,
she could not take instructions
’ rendering it impossible as
the plaintiff would be required to lie still for at least ten minutes
for her to use the fetoscope.
Essentially, the plaintiff refused
medical assistance and
Sister Mahlulo
recognised that
she had the right to do so.
[38]
She testified that there was no protocol for administering
psychiatric medication
[3]
to the
plaintiff and that when administering medication the following steps
were required:
‘
MR
BODLANI In any
event, for you to sedate a patient who is in labour, what
do you do,
do you just give her medication. What are the steps
MS MAHLULO
Firstly, you don’t just administer, you first make that CTG
to
assess the conditions inside
MR
BODLANI
and then, if the foetal wellbeing is good, what do you do
MS
MAHLULO you
then administer
MR BODLANI
if you determine that either the foetal wellbeing is not good
or the
foetus will not cope with sedative elements, what do you do
MS
MAHLULO you
won’t give her Pethidine, because those are muscle
relaxant’
[39]
She testified further as follows regarding
administering pain medication to the plaintiff:
‘
MR
BODLANI
Yesterday you did testify to the effect that during your
conversations
with the plaintiff she would say she was in pain. Do
you remember that
MS MAHLULO
Yes I remember that
MR
BODLANI
why did you not administer pain medication for her, and this
is
beyond 03.15 on the 5
th
November 2021. This is more
so just for your own benefit, this is more so because we know that at
about, just after 23:00pm
on the 4
th
November you have
been able to prescribe Pethidine and Promethazine
MS
MAHLULO That’s
correctly so yes
MR
BODLANI
Why in this case did you not do it after 3am on the 5
th
of
November
MS
MAHLULO Before
you administer a sedation or a pain reliever, you ought
to assess the
condition of the foetus
MR
BODLANI
you have already testified about your ability to do so earlier
MS
MAHLULO I said
so yes’
[40]
She testified that an uncooperative patient is not
just left but that such a patient is counselled, advised
and the
importance of what you are doing is explained. She testified as
follows regarding her problems with the plaintiff’s
uncooperative behaviour on that day and the steps she took in this
regard:
‘
MS
MAHLULO because of
the conditions of that day I tried my best to monitor the
patient.
The doctor came along and counselled or talked with the patient, the
patient even closed her legs and wasn’t
cooperative, it is then
that I called the doctor M’Lady, since I said I cannot deliver
this patient…It’s to
talk or counsel the patient,
telling her that observation of this foetus is very important, even
calling the doctor to tell the
doctor what the patient is doing, in
which manner…adding on those two was to attempt to put the CTG
back’
[41]
Sister Mahlulo
was
at pains to explain the
CTG
monitoring and the use of a
fetoscope. She indicated that a fetoscope was a manual observation of
the fetal heartrate and contractions
whereas the
CTG
‘
does
all those things on its own’
which
can then be read and interpreted. Her evidence was that the
recordings on the partogram were sourced from the
CTG.
[42]
Sister Mahlulo
testified
that she had managed to examine plaintiff and had established that
she was fully dilated. She
specifically
testified about the challenges of the plaintiff’s lack of
cooperation when she was fully dilated as follows:
‘
MR
BODLANI
Alright, Did Ms M[...] simple cooperate with you when you sought
or
when you prepped her for caesarean section.
MS MAHLULO
She did not cooperate with me
MR BODLANI
just give the court the details of that non-cooperation if
you
may
MS
MAHLULU
Firstly, I called the doctor and the patient talked with the doctor.
I told the doctor that the patient was fully dilated, she was ready
to deliver the baby. And the patient was refusing to
lie down
on the bed. That would render it difficult because she must be
on the bed to be delivering. If she would have
delivered on her
feet, the baby could fall down on the floor and get injured. I
explained to the doctor that I cannot deliver
the patient in those
circumstances. The doctor then decided that the patient must be
taken to theatre, operating theatre.
I went back to the patient
and then I told her the news that she was going to be taken to the
operating theatre. When we
were about to go to theatre there
are some preparation are done, M’Lady. The drip must be
inserted. Tocolysis
must also be administered to do away with
contractions. A catheter must be inserted. She was giving
me problems on
these items I have just numerated. At last, she
lie down on the bed. As I said that when I was administering
tocolysis
she bit me. She refused all other things otherwise
this refusal is one of the rights of the patient, M’Lady.
The rights for her to refuse are accompanied with responsibilities.
Responsibilities about herself, even to her baby.
I prepared
her for theatre. She was conveyed to theatre’
Dr
Valentine
[43]
Dr Valentine
, testified that during November 2021 he was
working,
inter alia
, at
FH
as a grade 1 medical
officer. He confirmed being on the evening call for 4 to 5
November 2021, that he had treated the plaintiff
and performed a
caesarean section
on her. He confirmed that after having
been called by
Sister Mahlulo,
he counselled the plaintiff at
about 04h00 regarding the dangers of not being able to monitor
her and the fetal heartrate
.
He was again summoned
by
Sister Mahlulo
for the same reason a bit later but
was in theatre performing a
caesarean section
at the time.
[44]
After leaving the theatre, he reviewed the plaintiff at around
06h00, again counselled
her stating that if they were unable to
monitor her properly this posed a danger to the baby. He personally
witnessed her uncooperative
behaviour. Based on the plaintiff’s
uncooperative behaviour and a ‘
suspicious’ CTG
at
05h06 which did not have adequate trace, and because the plaintiff
was refusing to be monitored by the
CTG,
he made a decision to
perform a
caesarean section
for non-cooperation.
Ordinarily, this is not an indication for a
caesarean
section
.
[45]
He reasonably believed that after the counselling on the first
occasion, the plaintiff would
cooperate and did not see any need to
perform a
caesarean section
at that stage. He indicated
that whilst it is essential that the fetal heartrate be monitored,
this is not possible if the
patient is not cooperating.
Dr Bhana
[46]
Dr Bhana
testified that during November 2021, and more
particularly on 5 November 2021, she was employed in the anaesthesia
department of
FH
as a medical officer and was on call. In
summary, she stated that she met the plaintiff who was aggressive,
violent and verbally
abusive, outside the theatre when they wanted to
take her into the theatre. She asked the plaintiff whether she
wanted to
have the operation to which the plaintiff responded that
she did. She indicated that the plaintiff’s
uncooperative
behaviour made it difficult for her to examine
her and administer the spinal anaesthesia but after several attempts,
she succeeded.
Mr Sidloyi
[47]
Essentially, the witness testified that they were unable to secure
the presence of
Sister Nyenyeko
as she had relocated to Saudi
Arabia and was not contactable. The evidence was not challenged.
Expert
Evidence
[48]
Prior to having reference to the applicable expert evidence which
will be considered hereunder,
I regard it as prudent to analyse the
purpose of expert evidence presented at court. The testimony of an
expert witness relates
to an opinion based upon his/her expertise in
a particular area for the purpose of assisting the court
in arriving
at a conclusion relating to issues of which the court
does not possess the requisite knowledge.
[49]
It is incumbent upon the expert witness to satisfy the court based
upon his/her special skills
or experience as to why the opinion
expressed should be acceptable and decisive of the issue. It is
for the court to consider
the opinion and to arrive at a decision
based thereon. The position is succinctly stated by
Kriegler
J
in
S
v M
[4]
and cited with approval in
NSS
obo AS v MEC for Health, Eastern Cape Province
[5]
as follows:
‘
A
court’s approach to expert evidence has been dealt with on many
occasions. This court is not bound by expert evidence.
It
is the presiding officer’s function ultimately to make up his
own mind. He has to evaluate the expertise of the
witness.
He has to weigh the cogency of the witness’s evidence in the
contextual matrix of the case with which he is
seized. He has
to gauge the quality of the expert witness. However, the wise
judicial officer does not lightly reject
expert evidence on matters
falling within the purview of the expert witness’s field.’
[50]
In providing the court with the benefit of his/her expertise, the
expert is not absolved from
presenting an objectively unbiased
opinion without wandering into the presentation of evidence which
defy the logic or scientific
expertise which he/she is professed to
possess. The established facts and the cogency of the experts
reasoning will be assessed
by the court on a balance of probability.
The court must bear in mind that when dealing with medical certainty
which may
be uncertain, it should not wantonly accept statements made
by experts.
[6]
[51]
In
Oppelt
v Head: Health, Department of Health
[7]
,
the Constitutional Court aptly summarized the approach to be adopted
by the court:
‘
As
a rule, that determination will not involve considerations of
credibility but rather the examination of the opinions and the
analysis of their reasoning, preparatory to the court’s
reaching its own conclusion on the issues raised. The experts agree
that a review of the clinical and obstetric records by appropriate
specialists in the field of neonatology and obstetrics to be
essential in determining the cause and probable timing of this
hypoxic ischemic injury’
[52]
The expert evidence presented in this matter will be considered and
analysed in relation to the
areas underpinning the alleged negligence
by the defendant’s medical staff.
The administration
of Misoprostal
[53]
Seemingly, the plaintiff alleges that the administration of
extra
amniotic saline infusion
and
Misoprostal
by the
defendant’s medical staff was negligent and pleaded as
follows:
‘
13.16
continuously induced the plaintiff’s labour by the
administration of excessive dosages of Misoprostal and extra amniotic
saline infusion, which caused the Plaintiff to suffer tachysystole
(the condition of excessively frequent uterine contractions
during
delivery);
13.17 failed to
adequately monitor and manage the Plaintiff’s excessive
contractions, and/or alternatively infuse tocolysis
agents to reduce
the frequency and severity of the Plaintiff’s contractions.’
[54]
The
maternity
records
as
supported by the evidence reveal that, despite the plaintiff’s
referral to
FH
for high blood pressure
on 2 November 2021, she was observed to be in a stable condition on 3
November 2021, whereafter a decision
was taken to induce labour with
EASI
(
extra
amniotic saline infusion)
and
thereafter
Misoprostal
.
Whilst plaintiff’s counsel did not specifically present
evidence or cross-examine on the administration of
EASI
[8]
,
the
maternity
records
reveal
that it commenced on 3 November 2021 at 17h15 and was discontinued at
20h15 whereafter the plaintiff slept peacefully with
no complaints.
It is recorded that the
Misoprostal
was
commenced on 4 November 2021 at 06h00 until 21h00. It was
common cause that monitoring must take place during the time
that
Misoprostal
is
administered as potential side effects are
tachysystole
and
hyper-uterine
activity.
[55]
Dr Mama-Asu Afau Peprah
(hereinafter referred to as ‘
Dr
Peprah’
) explained the physiology of
tachysystole
and
concluded that it was not present in the plaintiff’s situation:
‘
DR
PEPRAH: So
tachysystole, essentially what tachysystole is is that it talks
about
the contractions of the mother. Ideally the normal is to have
three to four contractions in 10 minutes. If it
exceeds this,
so it is five contractions in 10 minutes or more, what happens is
that there can, it can compromise the blood supply
to the baby
because then the baby does not get enough time to recover with each
contraction because during each contraction there
is minimal oxygen
and blood flow going to the baby. So that is what tachysystole
is and Misoprostal is a drug that can cause
you to you have
more contractions than you is supposed to. That is a known
fact…so the contractions, part of
the monitoring is to check
these contractions and make sure there is no tachysystole and with
each entry from 6am to 21h00 initially
it says nil. Nil, nil, meaning
there are contractions at all and then they start to comment on the
nature of the contractions from
19h00 which is mild and mild, which
means that is not tachysystole’
[56]
The record completed in connection with the administration of the
Misoprostal,
all but one entry, recorded the fetal heart
rate as ‘
reactive’ CTG
indicating that it
was normal. The
CTG
entry recorded at 16h00 was responded to
by
Dr Valentine
as possible ‘
loss of contact’
whereafter he ordered a repeat CTG and continuous
CTG
monitoring. The
Misoprostal
was stopped and not
administered again until 19h00. The contractions are recorded
as ‘
nil’
up until 19h00 and 21h00 whereafter
they are recorded as ‘
mild’
.
[57]
Dr
Ndjapa
conceded
under cross-examination that there was no evidence of
tachysystole
[9]
:
‘
MR
BODLANI What
we must accept from this is that at the time when they
looked
at the contractions following the administration of the Miso at the
time that it was, the contractions were mild
DR
NDJAPA
correct
MR
BODLANI At best
DR
NDJAPA
correct
MR
BODLANI and
before then there were no contractions
DR
NDJAPA
correct
MR BODLANI
and the sum total to be taken out of this is that there was
no
tachysystole, at least on the timeframes indicated on the document
that we are dealing with
DR
NDJAPA
correct. By 21h20 it says, mild contractions.
Alright’
[58]
Furthermore, under cross-examination with reference to the partogram
entry at 01h30 and 03h00
on 5 November 2021, which was after
the administration of
Misoprostal
had stopped,
Dr Ndjapa
conceded that there was no indication of
tachysystole
:
‘
MR
BODLANI okay,
and at, between, correct me if I am wrong, but between half
past 1 on
the 5
th
and 3am,
contractions were mild
DR
NDJAPA
correct
MR
BODLANI again, that
is not an indication of tachysystole
DR
NDJAPA
correct
MR
BODLANI neither is it
an indication of a hyper-uterine activity of any
sort
DR
NDJAPA
correct
MR
BODLANI so, that at
best they were mild
DR
NDJAPA
correct
MR BODLANI
now if we read the partogram in conjunction with page 1 of the
document where the labour induction with oral Misoprostol is, then we
must accept that the position of contractions was not only
mild until
9pm on the 4
th
, we must accept that in fact the position
is that contractions were mild beyond 21h00 on the 4
th
and
the 5
th
DR NDJAPA
that is correct
MR BODLANI
thank you, M’Lady. What I have just dealt with you,
Doctor is that
on the records that we have there is no confirmed case
of tachysystole in this case
DR NDJAPA
no, that is correct
MR BODLANI
nor is there any confirmed case of hyper-uterine activity
DR NDJAPA
that is correct’
[59]
This position confirmed by
Dr Peprah.
Moreover, both
experts confirmed that a dose of
Misoprostal
only lasts for 45
minutes. Considering that the last dose was administered at 21h00 on
4 November 2021,
Dr Peprah
indicated that there was zero
possibility of it still having been active in the plaintiff’s
body at 05h00 on 5 November 2021.
[60]
Dr Peprah
further testified that the initial
Misoprostal
doses of 25mcg did not yield contractions and was increased
to 50mcg at 14h00 as can be seen from the chart. There was
no
Misoprostal
administered thereafter until 19h00 and
21h00 when ‘
mild’
contractions were noted.
[61]
An evaluation of the evidence does not sustain the alleged negligence
asserted by the plaintiff
in her
particulars of claim
.
As mentioned, there was no evidence or challenge to the
administration of
EASI.
The administration of
Misoprostal
was, according to both experts, appropriately
monitored and there was no evidence of
tachysystole.
The
CTG
was ‘
reactive’
and at 16h00, after a
‘
suspicious
’
CTG
, not only was the
CTG
repeated but the plaintiff was retained on continuous
CTG
monitoring with
Misoprostal
being omitted until
19h00 on instructions of
Dr Valentine
. This is clearly evident
from the
maternity records
of the plaintiff
.
Thereafter, the
CTG
was normal and ‘
mild
’
contractions were recorded at 19h00 and 21h00 with a 2cm dilation.
The chart reveals that
Misoprostal
was administered over a
period of 15 hours only despite the evidence from the experts that
induction could occur over a 24 hour
period.
[62]
Neither the
viva voce
evidence nor the
maternity records
establish either the
continuous
use of
EASI or Misoprostal
or the existence of
tachysystole
. The
maternity
records
were admitted by both parties as aforementioned and there
was no challenge to the correctness of these recordings.
[63]
Whilst,
Dr Ndjapa
sought to establish that the dosage of 50mcg
of
Misoprostal
was excessive
, Dr Peprah
testified that
even though the dosage may not be common practice, it was permissible
in accordance with the
WHO Guidelines
. The chart reveals that
the plaintiff initially received three doses of 25mcg
Misoprostal
with no contractions being recorded whereafter the dose was
increased to 50mcg at 14h00. At 16h00
Dr Valentine
ordered a
repeat CTG and continuous CTG monitoring thereafter.
Misoprostal at 50mcg was discontinued according to the
maternity
records
until 19h00. Although no contractions were recorded
at 16h00, according to the
maternity records,
The reasonable
conclusion is that
Dr Valentine
was managing the
administration of the
Misoprostal
based on the possible
response thereto
.
Nonetheless, even at best for
the plaintiff, if it were to be considered an excessive dose, it did
not yield any negative
outcome to the plaintiff who experienced
‘
mild’
contractions from 19h00 and
‘
reactive’
CTG’s,
hence no indication
of fetal compromise or
hyper-uterine
activity.
[64]
Moreover, at 23h15 when
Sister Mahlulo
recorded the
plaintiff as being in active labour and 3 to 4cm dilated,
according to the experts, the
Misoprostal
, would have no
longer been active in the plaintiff’s body as it lasted for 45
minutes with the last dosage having been administered
at 21h00.
Accordingly, it is apparent that the
Misoprostal
merely
induced and established the labour, nothing more.
[65]
Dr Ndjapa’s
opinion as contained in his report relating
to the consequences and effects of
Misoprostal
on
the plaintiff are neither supported by his own evidence in this
matter nor the
maternity records.
Accordingly, such opinion is
misplaced and nothing more than a hypothesis or conjecture
which is of no consequence to this
court. Regrettably,
Dr Ndjapa
seems to have premised his report on a somewhat biased reasoning
in favour of the plaintiff on this and other issues where he was
inclined to exaggerate matters with unsustainable conclusions when
tested against the facts. This was repeatedly demonstrated under
cross-examination.
[66]
Lastly, the Plaintiff’s counsel put the following to
Dr
Peprah
and her response, in conjunction with the concessions of
Dr Ndjapa,
unequivocally excluded
Misoprostal
as a
ground of negligence or the alleged reason for the pain experienced
by the plaintiff:
‘
MR
MALUNGA: Okay, because it is part of
the plaintiff’s case that the dosage itself created
a
situation, that there was increased uterine contractions which
increased the pain and that was one of the causes of the plaintiff
being uncooperative.
DR PEPRAH:
May I add something to that, M’Lady? We have also said
that I mean she became uncooperative at about 3 o’clock which
was after the six hours where we have said that Misoprostal
would be
metabolised and excreted from the body. So I do not think it would be
relevant at that stage.’
Non-cooperation
of the plaintiff
[67]
South African common law provides that people with decisional
capacity may refuse medical treatment
with regards to an illness or
injury with such decision-making emanating from the fundamental right
to self-determination.
This right includes the right to bodily
integrity relating directly to the doctrine of informed consent and
acknowledging
the autonomy of a patient to make decisions
regarding whether he or she wishes to receive medical treatment.
[10]
[68]
Informed consent to treatment renders an act lawful and avails the
defence of
volenti
non fit iniuria. Ackerman J,
recognised
in
Castell
v De
Greeff
[11]
that the patient’s judgment regarding his or her interest is
decisive:
‘
It is, in
principle, wholly irrelevant that her attitude is, in the eyes of the
entire medical profession, grossly unreasonable,
because her rights
of bodily integrity and autonomous moral agency entitle her to refuse
medical treatment’
[69]
Our
Constitution
[12]
affords the right of a person to preservation of dignity, the right
to freedom and security of person and particularly to bodily
integrity, thus providing a basis to refuse medical treatment.
[70]
Whilst other jurisdictions have promoted the ‘
potential
interests’
of
a fetus to be born alive before recognising the right of a pregnant
patient to refuse medical treatment, in South African law
a fetus has
not been regarded as ‘
a
person vested with rights such as constitutional right to life’
.
[13]
[71]
Our courts have recognised a patient-based approach in claims for
damages based on negligence
for failure to warn a patient of material
risks or complications in a treatment or surgical procedure. The
reasoning is that a
patient’s freedom to self-determination
includes the right to decide whether she wants to undergo surgery
encompassing the
entitlement to refuse medical treatment. The
consent to surgery or medical treatment includes acceptance of the
responsibility
for unintended harm in the medical treatment in the
sense envisaged in the principle
volenti
non fit injuria.
[14]
[72]
Seemingly, a patient must have knowledge and appreciate the material
risk when consenting to
medical treatment, put differently, the
patient must be warned of the material risks. Such risks have
been regarded as being
material when analysing a patient’s
consent such as to constitute a justification to excluded
wrongfulness when:
‘
A risk is
regarded as material when a reasonable person in the patient’s
position, if warned of the risk, would likely attach
significance to
it; or where the medical practitioner is aware that the patient, if
warned, would likely attach significance to
it.’
[15]
[73]
Axiomatically, there appears to be no logical reason why the same
principle should not be extended
to a person who refuses medical
treatment.
[74]
Despite the plaintiff’s
viva
voce
evidence
clearly disputing her lack of cooperation and, by implication her
refusal to be appropriately monitored or examined, this
was gainsaid
by the amendment to the
particulars
of claim
specifically
incorporating the plaintiff’s lack of cooperation.
[16]
Furthermore, there was no significant cross-examination of the
defendant’s witnesses asserting the plaintiff’s
cooperation.
[75]
Save for reference to the fact that even psychiatric patients can be
treated, there was no evidence
that the plaintiff was at any
stage mentally incompetent. On the contrary, the plaintiff’s
counsel constantly punted
that a
caesarean section
should have
been performed earlier, which would have required not only the
cooperation of the plaintiff but also the required
mental
capacity to consent thereto. The mere suggestion that the
plaintiff’s cooperation may have been
compromised by her
mental state during labour because it was ‘
painful,’
is inimical to her being in a state of mind to consent and fully
appreciate the risks of a
caesarean section
.
[76]
The
viva voce
evidence supported by the
maternity
record,
unquestionably establishes that the plaintiff was
uncooperative, aggressive and violent towards the defendant’s
employees
from approximately 03h00 on 5 November 2021. The
probability that the medical staff would have fabricated the
non-cooperation and
behaviour of the plaintiff is unconscionable
considering that it was repeatedly documented by them. Furthermore,
the
maternity records
reflect an entry by
Sister Nyenyeko
at 03h00 who was attending to a request from the plaintiff for
assistance, recording certain observations clearly pursuant to an
examination and significantly also recording that
CTG
was
commenced. The first entry of non-cooperation was made at 03h15 on 5
November 2021 as follows by
Sister Nyenyeko:
‘
Came back
patient
removed CTG
and went
out of bed saying that it makes her contract more.
Resisting
to put it back’
(own
emphasis)
[77]
At 04h00
Sister Mahlulo
recorded as follows:
‘
Patient is
not
cooperating
at all
has been pushing since 4cm dilated.
Refuses
to lie on the bed, fetal monitoring or maternal observations.
Walks up
and down the patent (sic). Dr Valentine informed.
Spoke
to patient about the dangers of refusing observations and fetal
monitoring.
’
(own emphasis)
[78]
Dr Valentine
confirmed that he was summoned by
Sister
Mahlulo
as a consequence of the plaintiff’s uncooperative
conduct. He testified that he went to the labour ward and
counselled
the plaintiff as follows:
‘
DR
VALENTINE Sorry.
That
if I cannot monitor the pregnancy or the baby, it could be a danger
to the baby.
That
is what I told her that night. Yes
MR BODLANI
As I understand Sister Mahlulo’s evidence, that is referred
to
as counselling a patient. Is that correct
DR VALENTINE
yes’
(own emphasis)
[79]
Thereafter, at 05h30 a further entry was made by
Sister Mahlulo
:
‘
Patient is
refusing CTG
.
She is fully dilated walking up and down. Refuses to lie down
and is walking down the passage’
(own
emphasis)
[80]
The evidence presented by
Dr Valentine
and
Sister Mahlulo
was that due to the plaintiff’s continued
uncooperative behaviour, refusal of monitoring and maternal
interventions,
Sister Mahlulo
again summoned
Dr
Valentine
whilst he was in theatre performing a
caesarean
section.
Upon finishing in theatre, he went to attend to
the situation. He recorded a note in the
maternity
records
at 06h10 and testified as follow:
‘
DR
VALENTINE:
I was busy in theatre
with a case. I was called by sister,
Sister Mahlulo.
Patient
is very unco-operative. She refuses PV. Refuses to be placed on
CTG for monitoring
.
CTG, the heart rate at query 100 but
unable
to do a full tracing, unable to do CTG
.
And then plans for emergency Caesar.’
(own
emphasis)
[81]
There is a further note in the
maternity records
at
06h00 by
Sister Mahlulo
recording as follows:
‘
Patient
reviewed by Dr Valentine decided to do caesarean section.
Patient
bit me on the elbow while giving Salbutamol for tocolysis.
Fortunately
she did not puncture the skin’
(own
emphasis)
[82]
Thereafter at 06h20 a further note was made in the
maternity
records
by
Sister Mahlulo
recording as follows:
‘
Patient
prepared for caesarean section. Consent obtained.
Patient
still refusing to be attended. Refusing to be done CTG before
caesarean section.
(own
emphasis)
[83]
The ‘
Theatre Notes For The Caesarean section’
record as follows:
‘
uncooperative
patient, unable to monitor foetus’
(own
emphasis)
[84]
On the ‘
Consent To Surgical Procedure,’
Dr
Valentine
recorded as follows:
‘
Caesarean
section for uncooperative patient
.
Risk, bleeding, hysterectomy, infection, injury to bladder bowl,
injury to baby’
(own
emphasis)
[85]
Dr Valentine’s evidence was that whilst he ultimately performed
a
caesarean section
, he did not do so earlier because:
‘
DR
VALENTINE: And at that point I did not feel
like there was an indication yet for it. I thought
if I could
counsel the patient that she would eventually listen to us and work
with us and we could safely monitor the labour and
the baby… I
tried to counsel the patient for us to let her, monitor the baby and
the labour. Then I went to theatre
after that. I
(indistinct) Caesar after that and then when I came from theatre
afterwards, I came to review the patient and
I made a decision then’
[86]
It is abundantly clear that the plaintiff’s uncooperative,
aggressive and violent behaviour
perpetuated right up to the doors of
the theatre as established by the evidence of
Dr Bhana
who was the anaesthetist on the 5 November 2021 and testified as
follows:
DR BHANA: ‘…so,
my experience Ms M[...] was when I met her she was outside the
theatre, she was apparently agreeable
for theatre. So, when we had to
take her into theatre
she was very aggressive and very
violent. She swore at us, calling us names
…
because
for me I have to assess her before she goes into theatre. With
the assessment part,
she was very violent, she was very
vulgar using those words towards, towards me.
So,
and there was a point where I even ask her, does she want to go into
theatre for this operation, which she said she does want
to go to
theatre for the operation. And then when I took her… I
asked because
she was not cooperating with us.
When I was assessing her outside of theatre. Because before
the patient goes into theatre, I have to also assess her, so I
can
know when doing my spinal, is she agreeable for spinal, did she sign
the, did she sign the consent and if maybe something happens,
like a
complication happens it have to incubate. So, I had to do those
assessment. So, now with her
she was not cooperating
when I was assessing her for those things. So now that is
where I had to ask, did she go, does she want to go to theatre’
(own emphasis)
[87]
Cumulatively, the evidence establishes that from the first sign of
non-cooperation by the plaintiff
at 03h15 until the decision by
Dr
Valentine
to perform the
caesarean section
around 06h00,
the plaintiff was and remained wholly uncooperative despite the
best endeavours of the medical staff
to arrest the spiralling
non-cooperation and refusal of maternal monitoring and
CTG.
It
is clear that even
after
the plaintiff was informed of the
decision to perform a
caesarean section
and had consented
thereto, her uncooperative and unacceptable conduct perpetuated,
effectively obstructing the medical staff in
the fulfilment of their
duties in preparation of the
caesarean section
. The
ineluctable conclusion is that the plaintiff authored her situation
with her own decisions and conduct. Other than counselling
and
attempting to persuade the plaintiff, medical staff were effectively
hamstrung and obliged to give effect to the plaintiff’s
refusals of treatment.
[88]
In the absence of any evidence to the contrary, the plaintiff
possessed full mental capacity
and was repeatedly warned of the
risks attached to her uncooperative behaviour, particularly the
inability to monitor the
fetus with the
CTG
and should have
attached significance to such counselling. It was reasonable
for
Dr Valentine
(and the nursing staff), who readily admitted
that patients in labour may be uncooperative, to have concluded that
having counselled
the plaintiff and making her aware on the
risks, she would likely attach significance thereto and cooperate.
[89]
Both
Dr Ndjapa
and
Dr Peprah
recognised that
counselling provided to an uncooperative patient was appropriate
action.
The duty to monitor
and perform a caesarean section earlier
[90]
The failure by a professional person to conform to the general level
of skill and diligence possessed and
exercised by a person
of the same profession to which he or she belongs would ordinarily
constitute negligence.
[17]
[91]
Saldulker
JA
in
MM obo
ELM v Member of the Executive Council For Health: Eastern
Cape
[18]
stated
as follows:
‘
What is
expected is the general level of skill and diligence which is
possessed and would ordinarily be exercised by a reasonable
member of
the branch of the profession to which he or she belongs
under
similar circumstances’
(own
emphasis)
[92]
The overriding question is whether the failure of the defendant’s
medical staff to
monitor the well-being of the plaintiff and
fetus was negligent in the circumstances of this matter and whether
the
caesarean section
should have been performed earlier.
[93]
It is clear from the evidence that the disputed period is between
04h00
[19]
to 06h00 on 5
November 2021. The alleged negligence cannot be assessed
exclusively in terms of the prescripts
promoted in the
Maternity
Guidelines.
Consideration
must be afforded,
in
casu
,
to the facts found to have existed regarding the monitoring and
management of the plaintiff‘s labour during the relevant
period. These must be measured against the standard of
reasonable professionals in similar circumstances to those of
the
defendant’s medical staff.
[94]
The
maternity records
over the period in question are
replete with annotations of the lack of cooperation, failure to
follow instructions, violent,
aggressive and abusive conduct by the
plaintiff. They are peppered with repeated attempts by the relevant
nursing staff and doctors,
to reason and seek acquiescence from the
plaintiff in the performance of their duties whilst counselling her
as to the dangers
and risks associated with her behaviour.
[95]
Both
Dr Valentine
and
Sister Mahlulo
admitted that they
were unable to monitor in terms of the
Maternity Guidelines
and
this inability in the circumstances was echoed as a reality by
Drs Ndjapa
and
Peprah.
To my mind, this plausibly
explains why the usual standard of monitoring was rendered impossible
as a direct consequence of the
plaintiff’s conduct and her
refusal to be placed on a
CTG
and/or be examined and/or to
follow the instructions of the medical staff entrusted with her
labour and the delivery.
[96]
It is self-evident that the importance of fetal monitoring in
managing the safe delivery
of the fetus is a given and was
recognised by the medical staff who repeatedly counselled the
plaintiff regarding the dangers of
her uncooperative behaviour. The
nursing staff and the
Dr Valentine
were faced with a situation
which was dependant upon the plaintiff agreeing to proper monitoring
in circumstances where she had
the right to refuse treatment which
would have to be respected.
In casu,
the lack of
consent, alternatively, refusal by the plaintiff to be
monitored or heed reasonable instructions placed
the medical staff in
the unenviable position of trying to perform their duties as
professionals with the plaintiff’s
conduct thwarting their best
endeavours.
[97]
CTG
monitoring had been the chosen method of monitoring since
the plaintiff’s admission and the plaintiff was no stranger to
the
CTG
by the time that she adopted her uncooperative
behaviour at 03h15. There was no challenge to the suitability of
CTG
as an adequate means to monitor the fetal well-being other
than the plaintiff’s alleged comment recorded
in
the
maternity records
that it increased the contractions which
proposition was never tested during the trial. Indeed, the evidence
establishes that it
was an all-encompassing method to accurately
assess the fetal heartrate and the plaintiff’s contractions.
During her evidence,
it is clear that the plaintiff was
aware of the purpose of ‘
the belt
’.
[98]
I digress to provide a description of the
CTG
monitoring which
is also termed fetal cardiotocography. It is electronic
recording of the heartrate of the fetus.
This monitoring during
labour involves the placing of sensory devices on the abdomen of the
mother providing two outputs being
the audible sound of the fetal
heart rate with a printed
CTG
trace representing a graphical
result of the
CTG
monitoring. The
CTG
trace
represents the fetal heart rate on the upper portion and the
bottom line reflects the mother’s uterine contractions.
[99]
It is clear from the evidence of
Sister Mahlulo,
supported by
the
maternity records
that the plaintiff was fully dilated at
05h30 and that she was unable to deliver
YM
due to the
plaintiff,
inter alia,
refusing to lie down on the bed.
Dr
Valentine
indicated that her lack of cooperation and the
inability to monitor particularly after a ‘
suspicious’
CTG
at 05h06, which could not be re-done due to the plaintiff’s
non-cooperation and refusal, informed his decision at 06h00
to
perform a
caesarean section.
His evidence was that there was
no indication prior hereto that a
caesarean section
should be
performed. Both experts confirmed that a
caesarean section
is
not usually indicated for non-cooperation. It is further
probable, from the evidence of
Sister Mahlulo
and
Dr Bhana,
that the plaintiff’s non-cooperation even
after
the
decision was made by
Dr Valentine
delayed the operation.
[100] The
evidence establishes repeated attempts at monitoring by the
defendant’s medical staff during the period
in question,
hampered by the uncooperative conduct of the plaintiff. There is
accordingly no cogent evidence supporting either
a need or a delay in
the decision to perform or the performance of the
caesarean
section
other than that which may have been orchestrated by the
plaintiff. Put differently, there were no objective indicators
necessitating
a
caesarean section
particularly as documented
in the
Maternity Guidelines.
This was canvassed by defence
counsel during the presentation of the evidence.
Analysis
of the versions
[101] It is
trite that where there are two mutually destructive versions,
the litigant upon whom the onus
rests must satisfy the
court that its version is true and the other false before the
onus is discharged.
[20]
Ultimately, the onus must be discharged on a balance of
probabilities firstly by considering the qualitative assessment
of the truth and/or inherent probabilities of the evidence of a
witnesses and secondly by assessing which of the two versions
is the more probable.
[21]
[102] Whilst
there is much to be said about the plaintiff’s evidence,
I do not intend to repeat that which
has already been canvassed in
any detail.
As mentioned
supra
,
the plaintiff’s pleadings were amended to include
non-cooperation which effectively contradicted the plaintiff’s
viva voce
evidence.
Moreover, during cross-examination scant details of the plaintiff’s
version were put to the defendant’s witnesses.
The shortcomings
and improbabilities in the plaintiff’s evidence are highlighted
in the
maternity records
representing a contemporaneous recording of the events as they
unfolded during the plaintiff’s confinement and labour. These
were admitted during the
pre-trial
stage as aforementioned.
[103]
The plaintiff’s cause of action was premised upon the
negligence and/or substandard care by the defendant’s
employees
constituting a breach of a legal duty and some twenty-eight
grounds of negligence were listed, the bulk of which
did not feature
in the evidence presented by the plaintiff.
[104]
The plaintiff’s evidence regarding her trip to and arrival at
both the labour ward and the theatre, the
non-administration of pain
killers and for tocolysis and the curious evidence about the doctors
keeping her legs open so that she
did no suppress the head of the
baby, find no corroboration in the evidence before this court.
Indeed, these versions were never
put to the defendant’s
witnesses.
[105]
Significantly, under cross examination the plaintiff presented a
version which was entirely at odds with her pleaded
case and the
evidence when she commented as follows to defendant’s counsel:
‘
MR
BODLANI
Alright. It is common cause that your baby was injured during
birth, that is your claim surely you agree on that
PLAINTIFF
Yes, by the time I was coming
from the labour ward, M’Lady,
walking my feet to the theatre.
MR BODLANI
Let me get that right. Is it your evidence that the
injury to
the baby – I just do not want to misunderstand you. Are
you saying your evidence is that the injury to the
baby occurred when
you left the labour ward and walked to the theatre on your version
PLAINTIFF
Yes, I am saying that’
[106]
Furthermore,
the plaintiff’s evidence
both in chief and under cross-examination was that she was not
uncooperative with the nursing staff
or doctors. Ultimately, despite
the plaintiff’s evidence, the grounds of negligence upon which
the plaintiff’s case
appeared to be premised, seemed to be
crystalized as follows:
‘
MR
MALUNGA Dr Valentine,
it is the plaintiff’s case that faced with a non-
cooperation
and having not being used other alternatives, the caesarean section
ought to have been done earlier’
[107]
Dr Valentine’s
stance remained constant, and in-keeping
with the evidence of
Dr Ndjapa
and
Dr Peprah
that the
first thing to do when a patient is uncooperative is not a
caesarean
section
and that counselling a patient is appropriate conduct.
This is precisely what was repeatedly attempted by the nursing staff
and
Dr Valentine
from 03h15 and seemingly with ‘
intermittent’
success because it is apparent from the
maternity records
that
some form of maternal monitoring took place, for example, the entry
at 05h30 reflects the plaintiff being fully dilated
(10cm) and
Sister Mahlulo
indicated in her evidence that she recorded
this after examining plaintiff.
Dr Peprah
testified that
Dr
Valentine
would have had to exercise his discretion based
on his clinical experience as non-cooperation is not an indication
for a
caesarean section
.
[108] It is
not sufficient to adopt the stance of an armchair critic akin to
those professing expertise along
the sidelines of a
sporting event as the reality of the situation can only be
appreciated by stepping into the shoes of those involved
in the
management of the plaintiff’s labour on that day. It is
from this perspective that the alleged negligence must
be assessed.
[109] The
nursing staff were faced with an uncooperative patient from 03h15 and
this is well documented in the
maternity records
.
Drs
Peprah, Ndjapa, Bhana
and
Valentine
all weighed in on the
importance of the cooperation by the patient and the reasonableness
of the actions taken to exact cooperation
from the plaintiff. I do
not propose to repeat the conduct of the plaintiff, suffice to state
that the probabilities support the
evidence as presented by the
defendant’s witnesses,
Dr Valentine, Sister Mahlulo
and
Dr Bhana
which was corroborated by the
maternity record.
[110] The
overriding consideration is the effect that the plaintiff’s
conduct had upon the health professionals
charged with the medical
care during her labour. The resounding conclusion is that they
were severely compromised in performing
their duties, particularly in
terms of the
Maternity Guidelines
.
[111] The
nursing staff were prevented from monitoring or evaluating the
plaintiff due to her refusal to be placed
on a
CTG,
to remain on the bed, to
follow instructions
[22]
or to
be subjected to maternal observations. She displayed
aggressive, abusive and violent behaviour towards them.
In
short, she refused the treatment being offered after being made aware
of the risks attached thereto.
[112] The
evidence established that there were two nursing sisters in the
labour ward with four patients and
Dr Valentine
was the
medical officer on duty. This certainly does not lead to a conclusion
consistent with an inability to afford the plaintiff
with adequate
care albeit that it was suggested by plaintiff’s counsel. When
the plaintiff became uncooperative as aforementioned,
the nursing
staff sought to reason with her and advise the dangers of her
conduct. This was documented in the
maternity records
and
viva voce
evidence was presented in this regard.
[113] When
this did not yield results, it was elevated to
Dr Valentine
who counselled the plaintiff at around 04h00 and gave instructions
for her further management, reasonably expecting this to result
in a
positive outcome. Thereafter, around 05h00, he was again
summoned whilst in theatre performing a caesarean section on
another
patient, due to a ‘
suspicious’
albeit incomplete
CTG
and the continued non-cooperation of the plaintiff.
Significantly, this demonstrates that the nursing staff were
attempting to
monitor the fetal heart rate despite the plaintiff’s
continued uncooperative behaviour. Moreover, this decries any
suggestion
that she was just ‘
left
’ by the nursing
staff due to her non-cooperation as insinuated by plaintiff’s
counsel.
[114]
Dr
Valentine
again attended upon the plaintiff at 06h00 after
being called by
Sister Mahlulo
and made a decision to perform
a caesarean section for non-cooperation as clearly his previous
endeavours had not assisted and the
plaintiff had persisted with her
conduct despite his counsel. Under cross-examination, his
answer sums up his decision:
‘
DR
VALENTINE
:
…
But
then I realized when I reviewed her that I was not going to win after
trying to counsel her, trying to get – realising
at that point
I was not going to win. That is why I decided to do the Caesar at
that point only.’
[115] It is
noteworthy that at the examination performed on the plaintiff at
03h00, there were no signs of fetal distress
and this situation was
confirmed by both experts. Furthermore, the fetal heartrate recorded
at 04h00 was 141 bpm also not evidencing
fetal distress.
Moreover the
maternity
records
reflect
that the plaintiff was attended to and/or monitored or
monitoring was attempted.
[23]
.
The evidence of
Dr
Bhana
is
that she saw and examined the plaintiff prior to the operation. This
further dispels any notion that the plaintiff was not attended
to and
left to her own devices and is respectfully not sustainable.
[116]
Dr
Peprah
agreed with the evidence of
Sister Mahlulo
that
even in the face of fetal distress, the nursing staff would not have
been able to take any of the steps as contained in the
Maternity
Guidelines
because of the lack of cooperation by the plaintiff.
[117] At this
stage it is necessary to analyse the plaintiff’s conduct.
Her refusal to be monitored and
managed must be viewed as an
‘
informed refusal’.
She must have been
fully aware of the purpose of the
CTG
and maternal
examinations prior to her uncooperative behaviour and was repeatedly
warned of the risks associated with refusing same.
Nowhere in her
evidence did she suggest not being aware of the purpose of the
CTG
or as she referred to it, ‘
the belt’.
She
at no stage testified that she was uncooperative, even though her
counsel sought to establish, albeit belatedly, during
the
cross-examination of
Dr Peprah
that her non-cooperation was
due to the extreme contractions caused by the
Misoprostal.
As
mentioned
supra,
this situation was established to be both
inaccurate and unsustainable. In the circumstances, the only
reasonable conclusion is
that she refused the monitoring,
instructions and advices by the staff and should reasonably
have been aware of the consequences
of her actions. It was within the
plaintiff’s right to make such a decision and the staff were
required to respect same.
[118] Despite
the plaintiff’s consent to a
caesarean section
, she
thereafter continued with her aggressive, abusive and uncooperative
behaviour right up to the theatre doors. This included
a
refusal of monitoring with the
CTG
during preparation for the
operation
.
As mentioned, it is reasonable to deduced
that her conduct even after consenting to the
caesarean section
in all likelihood caused further delays particularly in view of
Dr
Bhana’s
evidence
.
[119]
Notwithstanding it being put to the defendant’s witnesses
that even psychiatric patients can be treated,
there is no evidence
to suggest that the plaintiff was not
compos mentis
during
this period. Her behaviour undoubtedly dictated and directed
the course of events, that much is evident. For
the plaintiff
to contend that the defendant’s employees were negligent in
failing to monitor her adequately or at all is
preposterous
considering that she was the proximate cause of their inability. As
mentioned, both
Dr Peprah
and
Ndjapa
agreed that the
counselling the plaintiff was appropriate action in the
circumstances.
[120]
Moreover, a
caesarean section
for non-cooperation is not a
usual indicator for such an operation with its attendant risks.
This much was also agreed and
conceded by
Drs
Peprah
and
Ndjapa
respectively. From the inception of the
‘
suspicious’
CTG
at 05h06 to which
Dr
Valentine
(who was in theatre) was alerted, his review of the
plaintiff and decision to perform a
caesarean section
,
probably out of desperation due to her behaviour, was conceded as
being reasonable by
Dr Ndjapa.
The consensus was that a
caesarean section
was not the first line of call for
non-cooperation. Finally, the
caesarean section
in this matter
decisively and explicitly confirms the non-cooperation
of the plaintiff.
[121] The
objection to the admissibility of the entries made by
Sister
Nyenyeko
who
did not testify, are without merit as they formed part of the
pre-trial
admissions
and
were made in the presence of
Sister
Mahlulo
and
with her knowledge surrounding the circumstances and content thereof.
Furthermore, they constitute one of the recognisable exceptions
as
provided in the
Law
of Evidence Amendment Act
[24]
which
reads as follows:
‘
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence
at criminal or civil proceedings, unless-
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as
evidence as such proceedings;
(b)
…
(c)
The court, having regard to –
…
(vi)
any prejudice to a party which the admission of such evidence might
entail; …”
[122] The
uncontroverted evidence of
Mr
Sicelo Sidloyi (Sidloyi) on the whereabouts of Sister
Nyeyeko
accords
with the jurisdictional factors in
Section
34(1)(b) of the Civil Proceedings Evidence Act
[25]
for the admissibility of
documentary evidence. During
Sister
Mahlulo’s
cross-examination,
the correctness of the entries were not challenged. Furthermore, no
prejudice was alleged or proven to exist.
Accordingly, I find no
reason for the exclusion of the entries made by
Sister
Nyenyeko.
[123] The
plaintiff’s evidence was riddled with improbabilities and
regrettably smacked of a conscious attempt
to attack the care
of the nursing staff, perhaps understandably, because of the
condition of
YM
. Her memory was selective and she
frequently changed her narrative regarding the attention she received
from the nursing
staff and the doctor(s). Her version was not
put in any detail to the defendant’s factual witnesses for
comment. Notably,
her evidence is not supported by the
maternity
records.
She was far from a satisfactory or credible witness. I
have no hesitation in accepting the truthfulness of the evidence
presented
by the defendant’s witnesses which is corroborated by
the
maternity records
in all material respects. In
addition the amended
particulars of claim
including the
plaintiff’s non-cooperation overtly support the defendant’s
evidence.
Negligence and
causation
[124] It is trite
that negligence can only be established if a reasonable person would
foresee the reasonable possibility
that his or her conduct word cause
harm and patrimonial loss to another person and would take reasonable
steps to guard against
such eventuality. In
Goliath
v MEC for Health
[26]
in considering the issue
of negligence it was stated as follows:
‘
At the end of
the trial, after all the evidence relied upon by either side has been
called and tested, the judge has simply to decide
whether as a matter
of inference or otherwise he concludes on the balance or
probabilities that the defendant was negligent and
that such
negligence caused the plaintiff’s injury. That is the long and
short of it.’
[125] At the
conclusion of all the evidence, the crucial question to be determined
is whether there is sufficient evidence
to draw an inference of
negligence and as voiced in
Goliath supra
:
‘
... it is
important to bear in mind that in a civil case it is not necessary
for a plaintiff to prove that the inference that she
asked the court
to draw is the only reasonable inference. It suffices for her to
convince the court that the inference that she
advocates is the most
readily apparent and acceptable inference from a number of possible
inferences (AA Onderlinge Assuransie
Assosiasie Bpk v De Beer
1982
(2) SA 603
(A); see also Cooper & another NNO v Merchant Trade
Finance Ltd
2003 SA 1009
SCA).
[27]
[126] Once
wrongful conduct has been proven, a plaintiff must only establish
that the wrongful conduct was the probable
cause of the loss
and not to establish the causal link with certainty.
[28]
[127] The
Maternity Guidelines
are consistent with the standard of
reasonable care expected of healthcare professionals and a
sine
qua non
for the safe delivery of a baby without adverse results.
Even if the
defendant has negligently breached a legal duty and the plaintiff has
suffered harm, it must still be proved that such
breach was the cause
the harm and whether the act or omission of the defendant has been
proved to have causally or materially
contributed to the harm
suffered based on the ‘
but
for’
test.
[128] What is
required is a finding based on the legal standard of proof and not
one based upon scientific precision.
The plaintiff has to prove
her case on a balance of probabilities
[29]
which probabilities are determined upon the facts tempered with an
element of experience and common sense.
[30]
[129]
Van
Zyl DJP
in
VN on behalf of PN v The MEC for Health and Social
Development
Eastern Cape
stated:
‘
Applying the
standard of proof to the test for factual causation, the enquiry is
directed at identifying the more probable of any
one cause against
the backdrop of the negligent act found proved, including the
available evidence as a whole, which in a matter
such as the present,
will include, but is not limited to, expert opinion”
[31]
[130] In the
absence of established negligent conduct the issue of causation does
not arise. In
Lee
v Minister of Correctional Services
[32]
the Constitutional court
stated that causation as an element of liability involves the factual
enquiry into whether the negligent
act or omission caused the harm
giving rise to the claim. If this is answered in the
affirmative, then legal causation arises
and the question to be
considered is whether the negligent act is sufficiently close or
directly linked to the loss giving rise
to the liability
whilst establishing whether that such loss is not to too
remote.
[131] The
plaintiff failed dismally to prove her case on a balance of
probabilities. She would, expectedly
be unable to do so without
being honest as to her actual conduct during her labour and
confinement at
FH.
Her evidence was mostly not put
to the defendant’s witnesses under cross-examination.
Regrettably, much of her evidence
was somewhat fictitious and
farcical in many respects rendering it implausible and deserving of
rejection. Whilst it is not
uncommon for labouring mothers to
display uncooperative behaviour as readily conceded by the medical
witnesses, the extreme and
unexplained conduct of the plaintiff is
neither fathomable nor capable of justification.
[132] A court
of law can only weigh up the proven facts without concerning itself
with speculating on evidence that
was never adduced, or which does
not follow by reasonable inference from the proven facts.
[33]
At the end of the day, the plaintiff must satisfy this court that the
inference that she seeks to be drawn is the most apparent
and
acceptable inference of all possible inferences.
[133] Despite
the numerous grounds of negligence advanced in the plaintiff’s
particulars of claim,
it appears that the ultimate ground upon
which the negligence is premised is the failure to timeously to
perform a
caesarean section
due to a failure to monitor and in
so doing, prevent harm to
YM
. This is fraught with uncertain
variables. The constant uncooperative behaviour of the plaintiff
cannot be swept under the mat.
The evidence established that the
plaintiff maintained her uncooperative conduct indefinitely and such
conduct was unpredictable,
uncompromising with no evidence to even
demonstrate the probability that she would have consented to a
caesarean section
earlier or that there was any indicator
requiring such operation. The first relevant ‘
suspicious’
CTG
was at 05h06 and at 05h30
Sister Mahlulo
records
that the plaintiff is refusing
CTG
which was self-evidently a
necessity. The nursing staff and
Dr Valentine
attended to the
plaintiff by 06h00 as is evident by the entry of
Sister Mahlulo
recording that ‘
Patient reviewed by Dr Valentine decided
to do caesarean section…’.
[134] This
court cannot infer from any objective evidence that a
caesarean
section
was either indicated or warranted earlier, that the
timing of the
caesarean section
was inappropriate or that the
plaintiff would have even cooperated in this regard as her serial
uncooperative behaviour was consistently
present. To embark on such
inferential reasoning would involve a speculative approach which is
not consistent with a finding of
the defendant’s
liability.
[135] The level of
care provided by the defendant’s medical employees accords with
the requirements of a
diligens
paterfamilias
as
outlined in
Kruger
v Coetzee
[34]
as follows
:
‘
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 person or 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.’
[35]
[136]
The
defendant’s employees were required to exercise such skill and
expertise as professionals would have in their situation.
Whilst being mindful of the importance of monitoring and management
during labour to avoid a negative outcome, the plaintiff’s
conduct and particularly her refusal of treatment, rendered it
impossible for the employees of the defendant to be alerted to the
onset of any mechanism that may have led to the development of the
brain injury of
YM.
Undeniably,
they were deprived of any opportunity that may have been warranted to
make appropriate interventions to address or prevent
such brain
injury. Accordingly, they could not have foreseen the harm to
YM.
[137] The evidence
adduced does not establish that the defendant’s employees were
negligent in their management and
monitoring of the plaintiff. They
performed their duties with the requisite skill and standard as
required and dictated in the
circumstances of the matter. Put
differently, the probabilities inherent in the evidence do not
establish negligence of any nature
that may have led to the
HIE
suffered by
YM.
There are no objective facts from which
culpable conduct of the defendant can be inferred. Moreover, there is
no indication(whatever
that may have been) that if the
caesarean section
was performed earlier it would have
averted
YM’s
condition. The joint minute of the
paediatricians confirmed that there were no objective indications of
fetal distress.
[138]
Regrettably, the plaintiff created of her own crisis in which the
nursing staff and
Dr Valentine
were unwitting
participants trying by their best endeavours to avert a most
unsatisfactory situation. The indubitable conclusion
is that the
plaintiff has failed to discharge the onus of proving the negligence
and consequent liability of the defendant.
[139] The
conclusion relating to the absence of negligence in this
matter due to the plaintiff’s refusal
to be monitored or
managed and her non-cooperative behaviour is not to be construed as a
trapdoor for the general avoidance
by the defendant of
liability for substandard care on the basis of an uncooperative
patient. On the contrary, the non-cooperation
and the
outcome is peculiar to the facts of the present case which
are well documented and supported by
viva voce
evidence.
Conclusion
[140] This
court has no hesitation in concluding that the evidence does
not support a conclusion that the conduct
and standard of care
provided by
Dr Valentine
and/or the nursing staff to the
plaintiff fell short of that which would be expected
of reasonable professionals
in the circumstances of this matter.
[141]
To my mind, the medical staff at
FH
did nothing other than
could reasonably have been expected of them in the circumstances and
there is no objective evidence or
other reasonable inference
justifying a contrary conclusion. Accordingly, the plaintiff has
failed to discharge the onus of establishing
negligence or
causation on the part of the defendant relating to the treatment that
the plaintiff received at
FH
by the defendant’s medical
staff.
Costs
[142] Whilst
the general rule is that costs follow the result, it is difficult to
make such an order in the present
matter. The litigation costs would
be substantial and given that it is common cause that the plaintiff
has the burden of a disabled
child, I am mindful of the effect of
such a costs order. Accordingly, in the interests of justice and
fairness, I consider it appropriate
that each party must pay its own
costs.
[143]
Accordingly, the following order is issued:
1.
The plaintiff’s claim is dismissed.
2.
Each party is to pay her/its own with costs.
S A COLLETT
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
For
the Plaintiff
:
Adv SY Malunga
Adv
T. Coto
Instructed
by
:
S. Booi and Sons Attorneys
6A
Sansom Road
Vincent
East
London
For the Defendant
:
Adv Bodlani Sc
Adv
L. Rusi
Instructed by
:
The Office of the State Attorney
17 Fleet Street
Old Spoornet Building
EAST LONDON
Date heard
:
7.08.2023; 8.08.2023; 10.08.2023
9.01.2024;
10.01.2024; 11.02.2024
13.05.2024;
14.05.2024; 15.05.2024
16.05.2024;
17.05.2024; 19.07.2024
Date judgment
delivered
: 20.08.2024
[1]
MEC for
Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga
2010(4)
SA 122 (SCA)
[2]
F &
I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika
Bpk
[1998] ZASCA 65
;
1999
(1) SA 515
(SCA) at 524 E-H
[3]
a proposition put to her pursuant to
Dr
Ndjapa
having
made a comment that even psychiatric patients can be treated
[4]
S
v M
1991
(2) SARC 91(t) AT 352
[5]
2023 (6) SA 408 (SCA)
[6]
MF v
Road accident fund
2023
(1) SA 52
para 35 SCA AT PARA [34] ;
JA
obo DMA v The Member of the Executive Council for
Health, Eastern Cape
,
[2022] 2 All SA
112(ECB)
;
2022 (3) SA 475
(ECB) para 12ff
[7]
2016(1)
SA 325 (CC)
[8]
And
the plaintiff referred to the insertion of ‘
a
bulb’
which
was in all likelihood
EASI
[9]
as alleged in the plaintiff’s
particulars
of claim
[10]
Castell
v De
Greeff
1994 (4) SA 408
(c) at 420J; 422 H-J
[11]
Supra
p 421C
[12]
Act 108 of 1996 Section 10, 12(2)(b)
[13]
Christian
Lawyers Association and Minister of Health
2004;
BLRC 1086(T);
S
v Mshumpa
2008(1)
SACR 126 para 56;
Road
Accident Fund v Mtati
2005
(6) SA 215 (SCA)
[14]
Castell
v De
Greeff
1994 (4) SA 408
(C) (“
Castell
’
).
Also see
Van
Wyk v Lewis
1924
AD 438
at 451;
Correira v Berwind
1986 (4) SA 60
(ZH) at 63
[15]
Castell
v Greeff supra
(p426
F-H)
[16]
This was not pleaded as an alternative claim
[17]
Goliath
v MEC for Health, Eastern Cape
2015
(2) SA 90
SCA at par 8
[18]
(580/2022)
[2023] ZASCA 130
(12 October 2023)
at
para 20
[19]
The fetal heart rate was recorded at 141 bpm
[20]
See:
National
Employer’s Mutual General Insurance v Gany
1931 AD 187
at 199.
[21]
Selamolele
v Makhado
1988
(2) SA 372
(V) at 374
[22]
The evidence and records establish that plaintiff had been ‘
pushing
from 4cm’
[23]
03h15 (
Sister
Nyenyeko)
,
04h00 (
Sister
Mahlulo
and
Dr
Valentine and FHR 141),
05h06
(‘
suspicious’CTG),
05h30
(
Sister
Mahlulo)
,
06h00 (
Sister
Mahlulo
and
Dr
Valentine
),
06h20 (
caesarean
section
preparations), 06h55 (
caesarean
section
)
[24]
ACT
45 of 1998 section 3(1)(a) and (c)(vi)
[25]
Civil Proceedings Evidence Act 25 of 1965
[26]
Supra
at par
18
[27]
Supra
at par 19.
[28]
Minister
of Safety and Security v Duivenboden
2002
(6) SA 431
(SCA) at par [25]
[29]
Ocean
Accident and Guarantee
Corporation
LTD
[30]
Za
V Smith & Another
[2015]
3 All SA 288(SCA)
at para [30]
[31]
(132/2015) [2021] ZAE CPHEHC 50 (31 August 2021) para [69]
[32]
Lee v
Minister of Correctional Services
[2012]
ZACC 30
;
2013 (2) SA 044
(CC);
2013 (1) SACR 213
(CC)
[33]
Bates
Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
.
1985 (3) SA 916 (A)
[34]
1966
(2) SA 428(A)
[35]
Ibid
at 430 E-F