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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NO: 8734/2017
In the matter between:
N[...] Z[...] Plaintiff
And
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH – WESTERN CAPE Defendant
Coram: Parker, AJ
Matter heard on: 23, 25, 29, 30 April and 24 July 2024
Judgment delivered electronically on: 01 November 2024
______________________________________________________________________
JUDGMENT
PARKER, AJ:
Introduction
[1] Plaintiff claims damages in her personal capacity and on behalf of her minor son
arising out of the treatment administered to the Plaintiff during her pregnancy and the
birth of S [...] (“baby”) at the Mitchells Plain Midwife Obstetric Unit (“MOU”) on 19
December 2010.
[2] Since merits and quantum have been separated I am to decide on liability only.
[3] The Plaintiff averred in her particulars of claim that the injury was caused by the
substandard care and for the negligence of medical staff at the MOU, who failed to
implement the appropriate procedures when it was evident that she presented with
shoulder dystocia. Furthermore, that the administration of the appropriate procedures
would have prevented the shoulder dystocia and the resultant brachial plexus injury and
Erb’s palsy to the baby.
Common cause
[4] It is common cause the delivery was complicated by shoulder dystocia1.
[5] There was a time interval of eight minutes between the delivery of the baby and
the baby’s head, and, as a result of the delivery he suffered an injury to his brachial
plexus in the form of Erb’s palsy and was also diagnosed with hypoxic ischemic
encephalopathy.
1 meaning that one or both his shoulders got stuck inside the pelvis of the mother at birth .
[6] The baby’s birth weight was recorded as 4530g. Therefore, the baby is
considered as a large newborn and falls into the category of macrosomia. After the baby
was born he required resuscitation.
[7] The baby was transferred to Mowbray Maternity Hospital for further management
and upon arrival had seizures. Treatment administered included head cooling and
medication for seizures.
The issues
[8] Whether the staff at the MOU were negligent in treating the Plaintiff during the
Plaintiff’s management and delivery; and
[9] Whether that negligence had caused the injury.
List of Witnesses
[10] For plaintiff:
10.1. Ms. L. Fletcher – nurse and midwife
10.2. Dr. CP. Davis – obstetrician and gynaecologist
10.3. Dr. A. Keshave – paediatric neurologist
10.4. Dr. H. Lewis – paediatrician
10.5. Professor S. Andronikou – professor of radiology
[11] For defendant:
11.1 Sister Faro – midwife
11.2 Dr. Wright – Specialist obstetrician and gynaecologist
Plaintiff’s evidence
[12] She is a widow with three children. S[...] is her youngest child and currently 13
years old. She was 35 years old when she fell pregnant with him. When she was six
months pregnant, she made her initial visit to the antenatal facility on 13 October 2010 .
Her HIV status was negative and her diabetes and blood pressure were assessed as
normal. However, she was mildly anaemic. Ferrous sulphate and folic acid were
initiated at 36 weeks of gestation.
[13] When she was about 41 weeks pregnant she attended the antenatal clinic (10
December 2010). A letter of referral was issued to her for an appointment at Mowbray
Maternity hospital on 20 December 2010, if she had not delivered before then.
[14] On 19 December 2010 her waters broke at home , she experienced contractions
and was admitted to the MOU, where she was placed on a hospital bed with the back of
the bed raised. She described in court how she was positioned with her upper torso at
an angle, legs apart with her knees bent. She recalls when the baby was on the way,
the staff changed her position on the bed and her legs were brought closer to her
abdomen.
[15] She remembered people in the room at the time, one of the staff members stood
at the end of the bed to r eceive the baby. Another stood behind her, massaging her
back, whilst, another stood next to her and placed both hands just below her breastbone
and pushed her tummy down under her ribs.
[16] Despite pushing to the best of her ability, the baby did not emerge. One of the
medical staff assisted her by pressing on the top part of her abdomen, while others
were holding her legs up. At the time, she was lying on her back on the hospital bed.
She was unable to see what they were doing, however, recalls th at the baby was born
not long after the episiotomy. She did not see the baby until she went to the ambulance.
She testified that “I will never forget the day of the delivery of my baby because it was
the day that I gave birth and I remember very well that the people were there more than
two of them”.
Ms Fletcher – nurse and midwife
[17] Ms. Fletcher , testified that her expertise was primarily focused on nursing
education and medico legal compliance. She also acknowledged that she had never
encountered a shoulder dystocia occurrence.
[18] She testified on the Guidelines for Maternity Care in South Africa, and her view is
that the Plaintiff ought to have been referred to a hospital for assessment on the
grounds that she was over the age of 34. According to the records, her body mass
index (BMI) - the Plaintiff was obese which is associated with an incr eased risk of
delivery of a larger than normal baby. The Plaintiff’s hemoglobin level was low (9.7), and
in terms of the Guidelines the Plaintiff suffered from mild anaemia, which should have
been investigated and treated. This was not done. She further de scribed that a post
term pregnancy is one that exceeds 41 weeks gestation. According to her, a number of
problems including birth asphyxia, meconium aspiration, cephalo -pelvic disproportion
and post-maturity syndrome are associated with a post term pregnancy.
[19] She describes the nursing records at the MOU as woefully inadequate and in
some instances non -existent. Antenatal records were incomplete, omitting important
information such as the Plaintiff’s HIV status, steps to address anaemia etc. Apart fr om
the partogram, there were no records that detailed the progression of Plaintiff’s labour,
particularly when the second stage of labour began. She described that the McRobert ’s
manoeuvre is a specific intervention that is required for shoulder dystocia, used in an
obstetric emergency. It was anticipated that nurses would generate a comprehensive
and exhaustive report subsequent to the delivery. In the available records, the only
record of shoulder dystocia was found in a very brief report written after the delivery and
before transfer to the Mowbray Maternity Hospital. Ms. Fletcher asserts that she would
have anticipated comprehensive notes of information such as when the baby’s head
was delivered, why there was a delay between the delivery of the head and the body
and, in particular, what manoeuvres were performed. This would have been a
retrospective report because during the delivery it would not have been possible to
compile a contemporaneous report.
[20] In her view, the nursing care was substandard in the antenatal period due to the
fact that the Plaintiff was not referred for assessment by a medical practitioner or to the
hospital, despite being a requirement in terms of her age. The Plaintiff and the infant
were at risk of premature labour and post partum haemorrhage due to the apparent lack
of attention given to the anaemia the Plaintiff had experienced.
[21] At the last antenatal visit on 10 December 2010 the Plaintiff should have been
referred to a hospital for assessment. When the appointment w as made for the Plaintiff
to attend at the Mowbray Maternity Hospital for induction of labour on 20 December
2010, she was not informed to go to the hospital when she went into labour.
[22] In examining the nursing care during labour she held the view th at it was
substandard, in that on admission to the MOU the Plaintiff was in labour and there was
a concern that the baby was big. This together with her age, obesity and post -dates
should have prompted immediate referral to hospital for delivery.
[23] The Plaintiff's evidence suggests that the nursing care during the delivery was
also substandard. Although an attempt was made to conduct a manoeuvre, the
technique used was not the correct application of the Mc Robert’s manoeuvre . The
Plaintiff was not positioned correctly on the bed, as she was not placed at the side or
along the edge of the bed. The suprapubic pressure was not administered, and the
fundal pressure was incorrectly employed.
[24] If the Plaintiff has been referred to a hospital during pregnancy but especially
when she was admitted to the MOU in labour, the probability of medical assistance
when the emergency occurred (shoulder dystocia) would have been high and the
outcome would probably have been different.
Defendant’s Witness: Sister Faro – Midwife
[25] Sister Faro is a speciality professional nurse. On 19 December 2010 she was on
duty at the MOU. According to her, three midwives and two nurses would be on duty.
She has encounter ed cases of shoulder dystocia quite a few times in her career and
estimates that there would be two to three cases per month at the MOU.
[26] She has no independent recollection of this specific case, however was able to
identify her handwriting in some o f the notes. She read some of the recorded notes
which were available that the Plaintiff gave birth to an “alive male infant (very sick) by
normal vaginal delivery (NVD)”, and “Head out at 11h35 and shoulder dystocia, body
following at 11h43, ONLY!!”
[27] She explained the operations of the MOU, how it was run, and on average the
MOU saw about 320 deliveries per month. None of the staff who were on duty on the
date of the delivery of the baby were traceable. She could therefore only provide context
on notes which were made, since she was not the scribe, save where it was
recognisable as her own. Issues of admissibility of her evidence was raised by the
Plaintiff. Nevertheless, she stated that the standard practice would be for a member of
staff to record information on a piece of paper, which would be used by the midwife to
write her summary later. She testified that fundal pressure would never have been used
before the delivery of the baby.
The experts
Drs CP. Davis – obstetrician and gynaeco logist and D. Wright – Specialist
obstetrician and gynaecologist
[28] There was little dispute between both Drs Davis and Wright. Both described what
the Mc Robert’s manoeuvre is and when it is employed in a delivery.
[29] Their agreed findings are that the Plaintiff was obese, she was most probably
post term, there was an entry on the part ogram that this might be a big baby and are all
warning signs that this might be a big baby. The attending staff should always be alert
to the possibility of shoulder dystocia. The prediction of shoulder dystocia is largely
inaccurate. All birth attendants should be familiar with the techniques to facilitate
delivery in cases of shoulder dy stocia. The Mc Robert ’s manoeuvre should be
performed immediately when shoulder impaction is encountered. Due to substandard
record keeping no evidence could be found that any of the accepted manoeuvres were
performed to deliver the baby.
[30] Dr Davis was of the opinion that the bruising and swelling of the baby’s right arm,
as well as the fact that the delivery was a standard vertex delivery, indicate that an
alternative delivery method was employed to deliver the posterior arm and the
McRobert’s manoeuv re was not performed. Dr Wright was of the opinion that the Mc
Robert’s manoeuvre was probably attempted but failed and therefore some other
manoeuvre, such as delivery of the posterior arm was also performed. This would
account for the trauma to the baby. Not all instances of brachial plexus injury are due to
substandard care. Dr Davis was of the opinion that there is no evidence that the Mc
Robert’s manoeuvre was performed and therefore the delivery was conducted in a
substandard manner. Dr Wright was of the opinion that in the absence of adequate
documentation in this case, it was impossible to judge the standard of care administered
to manage this complication.
Dr Keshave – paediatric neurologist
[31] Defendant admitted his medico legal report. Dr. Keshave posits that S[...]'s
cognitive function and language are further compromised by the hypoxic injury she
sustained at delivery, as evidenced by the following: low Apgar scores; delay from
delivery of the head to the body; the need for intubation and resuscitation after delivery;
oxygen saturation noted to be 48% despite intubation at 5 minutes after delivery;
seizures documented at Day 1 of life; and the maximum hypoxic -ischemic
encephalopathy (HIE) score of 15 (grade 3 HIE).
Dr. Humphrey Lewis – paediatrician
[32] Dr Humphrey Lewis, perused the relevant hospital records and testified: that
Neonatal encephalopathy is a clinical syndrome that presents with abnormal
neurological function and is characterized by difficulty in maintaining respiration,
decreased activity in level of consciousness, reduced motor tone, persistence of
primitive refle xes and seizures in term and late preterm newborns. Hypoxic ischemic
encephalopathy (HIE), which is defined as disturbed cerebral function due to lack of
oxygen to the brain following antenatal/perinatal adverse events, is the most common
cause of neonatal encephalopathy.2
33.1 The seizures which were noted on admission to the Mowbray Maternity
Hospital were signs of abnormal neurological status due to the baby
having been exposed to hypoxia at birth.
33.2 S[...] received hypothermia therapy at Mowbray Maternity Hospital which
is cooling of the whole body for a period of time. The effect of the
hypothermia therapy did a lot to improve this child’s outcome with a heart
rate of 34 he may have died.
2 Transcript: p17(5 -18); Cognitive Outcomes in Late Childhood and Adolescence of Neonatal Hypoxic -
ischemic Encephalopathy, Bundle B p107.
33.3 Regardless of motor impairments in late childhood and adolescence,
children with a history of HIE are at risk for cognitive and executive
function difficulties.
Dr. Lewis – paediatrician
[34] Dr Lewis concluded that there is no doubt that the baby had a significant period
of intrapartum asphyxia as a result of obstructe d labour due to shoulder dystocia. The
infant required resuscitation as there was a severe bradycardia (low heart rate) and the
Apgar scores were 1/10 at 1 and 5 minutes respectively.
Prof Andronikou – professor of radiology
[35] Professor Andronikou, gave evidence concerning a MRI brain scan performed on
the baby on 24 th February 2017 at the age of 6 years and two months. He found no
abnormalities on the scan and there were no features of hypoxic ischemic injury. More
advanced radiologica l studies such as diffusion tensor imaging could be performed.
Professor Andronikou referred to an academic article dealing with MRI imaging done on
South African children in the diagnosis of the causes of cerebral palsy. 3 The authors
retrospectively rev iewed brain MRI reports from 1600 medical legal data bases,
comprising cerebral palsy cases referred for medical legal evaluations long after an
alleged perinatal hypoxic ischemic event occurred. Of these cases, 8.2% were
categorized as normal based on th e MRI scan, although all the children suffered from
cerebral palsy.
Gestation
[36] Dr Wright testified that normal pregnancy in humans are between 37 completed
weeks and 42 completed weeks. Once you get beyond 42 weeks the morbidity and
3 Magnetic Resonance Imaging Diagnosis of Causes of Cerebral Palsy in a developing country: a
database of South African children. SAMJ September 2021, Vol III no 9 M.M. Elsingergy et al.
mortality of mothe r and baby increases. Hence the selection of 42 weeks as being the
cutoff point where a normal pregnancy should probably end. Dr Davis, on the other
hand, opin ed that a normal pregnancy are from 38 to 41 weeks and agreed that the
gestation of a baby is an estimate.
Hospital Records
[37] This brings me to the Hospital records. The purpose of hospital and medical
notes made for a patient speaks for itself. It is to provide reliable evidence of, and
information about, 'who, what, when, and why' something happened. Accurate medical
record keeping is vital for doctors, medical staff, medical establishments and the health
sector, facilitating effective patient management and providing evidence of proper care.
The absence of such records or gaps in the record keeping can result in serious
circumstances, especially where events take a serious turn during a medical
emergency.
“It is very important for the treating doctor to properly document the management
of a patient under his care. Medical record keeping has evolved into a science of
itself. Thi s will be the only way for the doctor to prove that the treatment was
carried out properly.” 4
[38] The Defendant was unable to account for the absence of medical records in this
matter, particularly during the critical eight -minute period of delivery. Whilst I can
understand that the health sector operates under highly stressful environments and that
the MOU where the delivery occurred is a busy unit, seeing at least 5 -7 shoulder
dystocia cases per month, the keeping of records therefor is imperative to avoid
attracting lawsuits such as this, where the available records offer little explanation of the
events that transpired at a critical time of the delivery.
4 Source Medical records and issues in negligence - PMC Indian J Urol. 2009 Jul -Sep; 25(3): 384 –388.
doi: 10.4103/0970-1591.56208
PMCID: PMC2779965PMID: 19881136
Medical records and issues in negligence
Joseph Thomas
[39] It is also unclear how the baby sustained an injury to the right arm in the absence
of such recordings to clarify the manoeuvres that were executed and whether the
McRobert’s manoeuvre was executed. The right arm injury is an objective indicator that
the shoulder dystocia was not appropriately managed, as indicated by Dr Davis.
The Plaintiff’s submissions
[40] It is argued that defendant’s staff were negligent in the management of the
Plaintiff’s pregnancy and the delivery of the baby in the following respects:
40.1 The failure to pay sufficient regard to the Plaintiff’s obesity and excessive
weight which pointed to macrosomia which could lead to birth
complications;
40.2 The failure to take cognizance of the date of the Plaintiff’s last menstrual
period;
40.3 The failure to adequately examine the Plaintiff and take note of
indications of the possibility of macrosomia during the antenatal phase;
40.4 The failure to refer the Plaintiff for an antenatal ultrasound to establish the
gestational age and size;
40.5 The failure to complete the maternal syphilis treatment antenatally;
40.6 The failure to identity that the pregnancy was post -dates and thus
timeously refer the Plaintiff to a secondary hospital for induction of labour;
40.7 The failure to ensure that suitably qualified medical staff were present to
identify any risk factors, together with the possibility of a macrocosmic
infant;
40.8 The failure to intervene at an earlier stage thereby allowing the second
stage of labour to be unduly prolonged by failing to apply the McRobert ’s
Manoeuvre;
40.9 The failure to conclude that it would be appropriate to transfer the Plaintiff
to the Mowbray Maternity Hospital for delivery;
40.10 The failure to properly examine the Plaintiff in circumstances where it
would have been established that the foetus was suffering from foetal
distress;
40.11 The failure to properly evaluate and examine the Plaintiff in circumstance
where it would have been established that S[...] was a large baby and
that a caesarean section should be performed.
40.12 The failure to properly examine the Plaintiff in circumstances where there
was lack of progress of birth and that a caesarean section was
necessary;
40.13 The failure to provide the Plaintiff with the correct and necessary medical
treatment and services;
40.14 The failure to perform the delivery of S[...] with such skill as would
reasonably be expected; and
40.15 The failure to exercise the proper degree of skill, care, competence and
diligence in treating the Plaintiff.
The Defendant’s submissions
[41] The Defendant argues that the views and opinions of Ms. Fletcher were of lesser
significance, as they were unable to aid the court in reaching a suitable decision. This is
due to the fact that Ms. Fletcher's career was characterised by a lack of hands -on
experience, with the exception of a brief period. Consequently, she is less qualified to
provide commentary than the Defendant's midwife, Ms. Faro. The D efendant argued
that Faro’s testimony provided the court with insight and context onto the practices in
the unit at the time where she was a senior nurse and Plaintiff’s objections to her
evidence regarding notes which she, Faro, did not scribe even if it amounted to opinion
evidence, is still admissible.
[42] None of the so-called risk factors alleged by the Plaintiff could be attributed to the
complication that occurred and the manner in which it occurred. The complication of
shoulder dystocia and the injury which resulted was not foreseeable, as the Plaintiff was
reasonably regarded at the MOU as a low -risk patient. Both experts agreed that the Mc
Robert’s manoeuvre was attempted. Dr. Wright further said that the fact that it did not
work does not imply that it was incorrectly done.
[43] The evidence shows and the Plaintiff’s expert Dr. Davis agreed that up until the
time that the baby’s shoulder got stuck, Plaintiff’s labour had progressed normally and
there would have been no reason to refer the Plaintiff to hospital.
[44] Despite being referred to MMH, the Plaintiff presented herself at the MOU in
active labour. She was duly admitted and when the complication occurred the staff’s
training kicked in, and ultimately, they saved S[...]’s life. The Plaintiff’s expert
obstetrician, Dr. Da vis, agreed that that in these circumstances they baby could have
died.
The legal principles
[45] I am mindful that the evidence of the Plaintiff (as a single witness) should be
treated with caution , as she is the only party before the Court testifying on her
pregnancy and delivery and as such her evidence, is credible to the extent that her
uncorroborated evidence must satisfy the court that on the probabilities it is the truth. In
this regard, Plaintiff testified that she recalls the birth as if it was yesterday, despite the
fact that she claimed that her waters had broken at home when she arrived at the MOU
or that she was perplexed about the dates of her most recent antenatal clinic visit. Her
testimony regarding the birth was unequivocal.
[46] A medical practitioner is required to exercise the degree of skill and care to be
expected from the skilled practitioner in his or her field. A Supreme Court of Appeal
authority established the test when a reasonable practitioner in such cir cumstances
would have foreseen the likelihood of harm, would have taken the necessary steps to
guard against its occurrence and that the concerned practitioner concerned failed to
take such steps.5
“We cannot determine in the abstract whether a surgeon ha s to has not exhibited
the reasonable skill and care. We must place ourselves as nearly as possible in
the exact position in which the surgeon found himself when he conducted the
particular operation and we must then determine from all the circumstances
whether he acted with reasonable care or negligently. Did he act as an average
surgeon placed in circumstances would have acted, or did he manifestly fall short
of the skill, care and judgment of the average surgeon in similar circumstances?
If he falls short he is negligent”6
[47] Flowing from this, the Plaintiff must establish that the wrongful and negligent
conduct of the nursing staff acting within the course and scope of their employment,
5 Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1077.
6 Van Wyk v Lewis 1924 AD 438 at p 461-462
caused the harm. 7 In this regard the Constitutional Court following the approach to
matters of this nature in Kruger v Scouts, in Upper v Department of Health Western
Cape8 sets out:
“[106] In our law Kruger embodies the classic test. There are two steps. The first
is for eseeably – would a reasonable person in the position of the Defendant
foresee the reasonable possibility of injuring another and causing loss” The
second is preventability – would that person take reasonable steps to guard
against the injury happening?
[107] The key point is that negligence must be evaluated in light of all the
circumstances. And, because the test is defendant specific (in the position of the
defendant), the standard is upgraded for medical professionals. The question for
them is whether a reasonable medical professional would have foreseen the
damage and taken steps to avoid it. In Mitchell v Dixon the then appellate
division noted that this standard does not expect the impossible of medical
personnel:
- a medical practitioner is not expected to bring to bear upon a case
entrusted to him the highest possible degree of professional skill, but he is
bound to employ reasonable skill and care; and he is liable for the
consequences is he does not.
[108] This means that we must ask, what would exceptionally competent and
exceptionally knowledgeable doctors have done? We must ask: what can be
expected of the ordinary or average doctor in view of the general level of
knowledge, ability, experience, skill and diligent possessed and exercised by the
profession, bearing in mind that the doctor is a human and not a machine and
that no human being is infallible. Practically, we must ask, was the medical
7 Mtetwa v Minister of Health 1989 (3) SA 600 (D&CLD) at 606B-F
8 Kruger v Scouts, in Upper v Department of Health Western Cape
professional’s approach consistent with a reasonable and responsible body of
medical opinion? The test always depends on the facts. With a medical
specialist, the standard is that of a reasonable specialist.”
[48] Accordingly, to determine whether the Defendant’s staff were negligent following
the approach as in Vermeulen9, the court will be guid ed by the determination with
regard to the view of the experts. A court decides whether the “failure to act in
accordance with a practice accepted as proper in the relevant field is necessary” A court
weighing up the views of the parties’ experts has to be satisfied that” their opinions have
a logical basis” and whether in their views the experts had directed their minds to the
question of comparative risks and benefits and reached a defensible conclusion on the
matter.
Onus of Proof
[49] It is trite, th e general onus of proof lies with the Plaintiff. “ He who asserts must
prove”10.In so far as medical negligence is concerned in Meyers v MEC, Department of
Health, Eastern Cape 11 found that once a plaintiff had given explanation for a claim, it
was sufficie nt to place an evidential burden upon the Defendant to shed some light
upon the circumstances attending to the Plaintiff. Failure to do so meant that, on the
evidence as it then stood, the defendant ran the risk of a finding of negligence against it.
Whilst a plaintiff bore the overall onus in a case, the defendant nonetheless had a duty
to adduce evidence to counter the prima facie case made by the plaintiff. It remained for
the defendant to advance an explanatory (albeit not necessarily exculpatory) account
that the injury must have been due to some unpreventable cause, even if the exact
cause be unknown.12
9 Medi-Clinic LTD v Vermeulen 2015 (1) SA 241 (SCA) at 250B-D
10 Van Wyk v Lewis (Supra) at 444
11 2020(3) SA 337 (SCA)
12 At 356A-C
[50] The evidential burden stated in NVM obo VKM v Tembisa Hospital13:
[86] A Plaintiff is not required to show a causal connection between the
conduct or permission and the eventual harm with certainty. All that is required is
“to establish that the wrongful conduct was probab ly a cause of the loss, which
calls for a sensible retrospective analysis of what would probably have occurred,
based upon the evidence and what can be expected to occur in the ordinary
course of human affairs rather than an exercise in metaphysics. And ce rebral
palsy cases whether the brain damage is caused by HIE, like the present one,
fall into a particularly challenging field of medicine, “where medical certainty is
virtually impossible”. It is a form of harm that calls for a more flexible
understanding of factual causation.
[87] In this matter, the applicant adduced sufficient evidence to prove factual
causation, in the context of a harm which is replete with uncertainties. Absent
any countervailing evidence from the respondents, the unchallenged evidence of
the applicant’s medical experts, particularly that of Prof. Kirsten and Dr Pistorius,
together with the admitted facts and the joint minutes of the obstetricians, prove
the applicant’s claim for damages. The negligent failure by the hospital staff to
conduct adequate monitori ng of the foetal heart rate during the critical period,
denied them the opportunity to detect the warning signs of the onset of hypoxia.
That, in turn, resulting in the failure to take emergency measures to afford V
more time until a caesarean section cou ld be arranged. On the probabilities, the
brain injury would not have occurred had all of this been done, or the risk of this
brain injury, would have significantly reduced. In the premises, had I
commanded the majority, I would have upheld appeal with costs.”
What is the role of expert witnesses and how their evidence is to be approached?
13 [2022] ZACC11
[51] The Court in JA obo DA v MEC for Health with reference to the Linksfield
matter,14 expressed the following view in relation to expert opinion:
“[12] … The cogency of an expert opinion depends on its consistency with
proven facts and on the reasoning by which the conclusion is reached. The
source for the evaluation of this evidence for it’s cogency and reliability are (i) the
reasons that have been provided by the experts for the position adopted by
him/her; (ii) whether that reasoning has a logical basis when measured against
the established facts; and (iii) the probabilities raised and the facts of the matter.
It means that the opinion must be logical in its own context, that is, it must accord
with, and be consistent with, all the established facts, and must not postulate
facts which have not been proved.
[13] The inferences drawn fro m the facts must be sound. The internal logic of
the opinion must be consistent, and the reasoning adopted in arriving at the
conclusion in question must accord with what the accepted standard
methodology are in the relevant discipline. The reasoning will be illogical or
irrational and consequently unreliable if (i) it is based on a misinterpretation of the
facts; (ii) it is speculative, or internally contradictory or inconsistent as to be
unreliable; (iii) if the opinion is based on a standard of conduct that is higher or
lower than what has been found to be an acceptable standard; and (iv) if the
methodology employed by the expert witness is flawed. What flows from this is
that the mere fact that an expert opinion is unchallenged does not necessarily
mean that it must be accepted. However, if that evidence is based on sound
grounds and is supported by the facts, there exists no reason not to accept it.”15
Comparable Case Law
14 JA obo DA v MEC for Health, Eastern Cape 2022 (3) SA 475 (ECB)
15 JA obo DA v MEC for Health (supra) at 482A – 482E
[52] In the matter of N.P. v MEC for Health, Eastern Cape 16 the delivery of the
Plaintiff’s baby had been complicated by shoulder dystocia, as a result of which the
baby’s arm was injured. According to the evidence during the delivery fundal pressure
had been applied, the McRobert ’s manoeuvre had not been perform ed and suprapubic
pressure had not been applied. The Court held as follows on the issue of negligence:17
“in the determination whether the doctor and midwife did not act with reasonable
care and without negligence to minimalize or failing to prevent the effects of
shoulder dystocia, enumerated the risk indicators:
1. The failure to detect all the risk indicators and to assess their
cumulative effect in diagnosing the likelihood of shoulder dystocia;
2. The failure to, accordingly, prepare and put in place a man agement
regimen or plan for dealing with the potential of shoulder dystocia;
3. The failure to take into account the obvious and important
information imparted to them by the Plaintiff to the effect that a
medical doctor had ascertained that the foetus was a large one and
the failure to palpitate the Plaintiff to confirm this;
4. The failure to arrange for an attendant or nurse to take exact notes
of what was going on as matters unfolded;
5. The failure to have sufficient assistants on standby;
6. The failure to place the Plaintiff at the edge or end of the delivery
bed so as to assist with the delivery;
16 (1196/2012) [2014] ZAECMHC 28 (24 July 2014)
17 At paragraph [40]
7. The failure to place the Plaintiff in the McRobert ’s position with the
help of assistants, more especially as there were apparently at
least two other nurses or assista nts available in the labour ward
who did not assist or who were not called upon to assist;
8. The failure to cut a wide episiotomy;
9. The failure to apply suprapubic pressure to force the anterior
shoulder under the symphysis pubis;
10. The application of fundal pressure;”
11.
[53] In ZL obo AL v MEC for Health, Eastern Cape 18 the Court dealt with a similar
claim relating to a birth injury complicated by shoulder dystocia. The Court referred to
the joint minutes of the expert witnesses, obstetricians and gynecologists, who agreed
that.19
"(a) the plaintiff presented with risk factors for shoulder dystocia, which
included macrosomia and prolonged second stage of labour;
(b) when managing the shoulder dystocia, the doctor positioned the plaintiff's
leg incorrectly. This significantly hindered his ability to overcome the
shoulder dystocia;
(c) this situation was further aggravated by the use of fundal pressure. If
suprapubic pressure had been applied instead of fundal pressure, the
18 (378/2019) [2022] ZAECBHC 43 (6 December 2022)
19 At paragraph [17]
shoulders would probably have been delivered normally and the inj ury
would probably not have occurred;
(d) the failure to place plaintiff in the McRobert's position and the use of fundal
pressure rather than suprapubic pressure probably resulted in the use of
greater traction to deliver the baby, thus causing brachial plexus injury in
the new-born and significant loss of function to the right arm and;
(e) if these manoeuvres were carried out correctly the injury would have been
averted and A[....] would have had normal function of his right arm."
Conclusion
[54] Time is of the essence in cases of shoulder dystocia. According to Dr Wright if
the body of the baby is not delivered within 5 minutes or sooner after the head, the baby
will suffer from hypoxia.
[55] The plaintiff was required to prove, on a balance of probabilities that the
Defendant’s employees failed to exercise reasonable skill and care, in other words, that
their conduct fell below the standard of a reasonably competent practitioner in their field
and that the aforesaid negligence caused injury. A medical practitioner is bound to
employ reasonable skill and care, and is liable for the consequences if he or she d oes
not.20 I am mindful that we are dealing with the conduct of a reasonable nurse and
midwife who attended the delivery.
[56] In my view I have to agree with Plaintiff that it is manifest that the evidence
presented by the Plaintiff established on a balance of probabilities that:
56.1 The hospital staff were negligent in failing to assess whether the plaintiff,
a multigravida, had risk factors for shoulder dystocia. Had that been done
20 Goliath v Members of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA)
timeously, a caesarean section could have been performed, which would
have prevented the injuries from occurring.
56.2 Once the plaintiff had presented with shoulder dystocia, the hospital staff
ought to have applied the procedures prescribed in the protocol. Failure
to apply those procedures, and in particular the application of fundal
pressure as opposed to suprapubic p ressure, has served to worsen the
situation and had probably caused the injury.
[57] Based on the joint findings of the obstetricians, Ms. Fletcher, coupled with
Defendant’s failure to generate a comprehensive and detailed report following the
delivery, particularly in terms of the manoeuvre s that were implemented, is a matter of
concern. The Defendant could not procure any witnesses regarding the events that
transpired during the critical eight minutes, with the exception of the Plaintiff's Midwife
Faro who had, had no recall of the birth. This leaves the only version before the court is
that of Plaintiff herself.
[58] Both gyneacologists confirmed that the injury resulted from the shoulder
dystocia. The reasonable inference guided by the opinions of the experts and plaintiff’s
own testimony that can be drawn is that the injury was caused by the failure of the
hospital staff to apply the correct procedure or an attempted Mc Robert’s manoeuvre.
Unfortunately this could not be backed up by hospital records. Furthermore, I am of the
view that drawing from the above, the application of fundal pressure as expressed by
the plaintiff when she described the delivery that Fundal pressure was applied which
according to Dr wright was a common practice “…say 40, 50 years ago. But it has been
severely criticised for its negative effects. And that I think that again today certainly I
know from my experience when I was at Mowbray Maternity Hospital it was taboo, you
did not see fundal pressure”
[59] Accordingly based on the evidence before me, the Defendant’s nursing staff
were causally negligent in the following respects:
59.1 In failing to refer the Plaintiff to a hospital for the management of her
pregnancy and the delivery of S[...];
59.2 In failing to perform the Mc Robert’s manoeuvre at all, alternatively in
failing to perform the Mc Robert’s manoeuvre correctly;
59.3 In applying fundal pressure;
59.4 In failing to apply suprapubic pressure; and
59.5 Failing to keep detailed hospital notes.
Costs
[60] I see no reason to depart from the usual costs order that costs follow the result,
and I have a discretion whether to allow the fees of two counsel. 21 In deciding whether
or not the fees of a second advocate should be allowed, the court has regard to whether
it was a wise and reasonable precaution to employ such advocate. The court will also
have regard to the complexity of the matter, the importance of this case for the Plaintiff ,
the nature of the issues in dispute between the parties, the length of the hearing and the
arguments, the importance of questions of principle or of law involved and the number
of legal authorities quoted.22
[61] I see no reason to prejudice the plaintiff’s counsel’ employed and find that a basis
that Senior Counsel’s fees should be allowed on scale C, and Junior Counsel’s fees on
scale B.
21 AD v MEC for Health & Social Development, Western Cape 2017 (5) SA 134 (WCC) at 139J – 140A.
22 City of Johannesburg v Chairman, Valuation Appeal Board 2014 (4) SA 10 (SCA) at [34]; Henry v AA
Mutual Insurance Association Limited 1979 (1) SA 105 (C) at 107A; Barlow v Motors Investments Limited
v Smart 1993 (1) SA 347 (W) at 352G.
Order
[62] In the circumstances, the following order is made.
62.1 The Defendant is liable for such damages as the Plaintiff may prove to
have arisen as a result of the injuries sustained by S[...] during his birth on
19 December 2010 at the Mitchells Plain Maternity and Obstetric Unit.
62.2 The Defendant is liable for the Plaintiff’s costs of suit on a party and party
scale, including, but not limited to:
62.2.1 Senior Counsel’s fees at scale C;
62.2.2 Junior Counsel’s fees at scale B;
62.3 The consultation, preparation of medico -legal reports, appearances,
engagement in prepar ation of joint minutes and the reasonable and
necessary qualifying expenses (including travel and accommodation and
drafting the expert reports) of the following expert witnesses:
62.3.1 Dr. CP Davis, obstetrician and gynaecologist;
62.3.2 Dr. H. Lewis, paediatrician;
62.3.3 Professor S. Andronikou, professor of radiology;
62.3.4 Dr. A. Keshave, paediatric neurologist;
62.3.5 Ms. L. Fletcher, nurse and midwife.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Counsel for Plaintiff : Adv. P Corbett SC and Adv. E Benade
Instructing Attorney : Rob Menzies Attorneys – Ms Ingrid Essl
Counsel for Defendant : Adv. E Fitz-Patrick
Instructing Attorney : State Attorney – Ms Natalie Hendricks