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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 5710/2019
(1) REPORTABLE: NO/YES
(2) OF IN TEREST TO OTHER JUDGES: NO/YES
(3) REVISED.
DATE: 27/01/2025
In the matter between:
K[...] N[...] PLAINTIFF
and
MEMBER O F THE EXECUTIVE COUNCIL DEFENDANT
LIMPOPO PROVINCIAL GOVERNMENT:
DEPAR TMENT OF HEALTH
JUDGMENT
NAUDE -ODENDAAL J:
[1] The Plaintiff instituted a claim against the Defendant for payment of delictual
damages, which the Plaintiff alleges she suffered as a result of the negligence of the
employees, nurses and doctors, at the Elim District Hospital.
[2] The background fac ts are briefly that the Plaintiff, was a 21 year old female
with a history of a previous cesarean section ("C/section") in 2014 for delivery of a
macrosomic baby ("big baby").
[3] The Plaintiff in the present matter went to Tembisa hospital/clinic for her
check ups. Her check -ups were uneventful except for that she was diagnosed with
anemia for which she was given Venofer as a supplement. The Plaintiff's estimated
date of delivery was end of October, early November 2018. The Plaintiff decided to
relocate back home and deliver her baby at Elim Hospital, Limpopo. She attended
the Elim Health Care Centre once and was told that her estimated date of delivery
was still estimated to be end of October, early November 2018.
[4] On the 18th of October 2018, on the day of her regular check -up, she
experienced lower abdominal pain. On arrival at the clinic, she was checked by the
nurses and diagnosed with anemia. She was a high risk given her anemia and
previous caesarean section and was referred to Elim Hospita l. The Plaintiff was
admitted in hospital until 25 October 2018. She was monitored on a daily basis at
least twice, or thrice a day, including her vital signs.
[5] On the 25th of October 2018 at around 21h00, she started to experience
labour pains and wa s transferred and admitted in the labour ward. From there she
was not monitored until the following day.
[6] On the 26th of October 2018 at around 06h00am, the Plaintiff felt a sudden
severe abdominal pain like something had burst and ripped inside her. She
screamed and called for help, but nobody from the hospital's staff members came to
assist her. The Plaintiff asked one of the patients to assist her by taking her to the
nursing station in order to seek help.
[7] At the nursing station she was not assisted or examined, instead, the nurses
asked her to return to sleep. She could not carry herself back to her bed and opted
to sit on a bench next to the nursing station. She fell asleep there on the bench.
Later, w hilst still on the bench, a doctor passed by and asked her why she was still
there. The Plaintiff informed the doctor that she was in pain. The doctor told her to
join the queue of the patients who needed his attention. She went back and slept on
the benc h.
[8] Around 10h00am to 11h00am the same day, the nurses' noticed that she was
shivering and having shortness of breath. The doctors were immediately called to
attend to her and an emergency caesarean procedure was scheduled for the
delivery of the baby. The baby was delivered a fresh stillborn as a result of the
raptured uterus on the 26th of October 2018 at around 12h09pm on the 26th of
October 2018.
[9] The Plaintiff testified in support of her claim. Further, both the Plaintiff and
Defendant ap pointed one expert witness each. Dr. Songabau an obstetrician and
gynecologist appointed for the Plaintiff, and Dr. Mbokota an obstetrician and
gynecologist appointed for the Defendant, compiled a joint minutes.
[10] In conclusions the respective doctors remarked as follows: -
"In my conclusion, the management of this patient was substandard: The
patient was previous CIS and anaemia and admitted for 8 days in hospital
setting for correction of anaemia. She was term at 38 weeks gestation and
was not counse lled to the mode of delivery including VBAC. With a better
monitoring as per guidelines NDoH 2015 and having insight about danger
signs of impending uterine rupture from the 22/10/201[ 8] such as abdominal
pains and feta l tachycardia, an emergency CIS would have been indicated on
the 2211012018. Thus, both severe maternal morbidity (ruptured uterus,
anaemia and near miss) and feta l mortatility (FSB) were preventable.
Dr. Songabau: Agree
Dr. Mbokota: Disagree
i. Based on available records in my possessi on, Ms K[...] was a 21 -year-
old lady who was pregnant for the 2nd time in 2018 and she was a previous
c/section X1.
ii. She had mild iron deficiency anaemia of pregnancy which did not
respond well to oral supplements and was admitted at 37 weeks for
intravenous iron.
iii. She was diagnosed with vaginal discharge syndrome while she was on
intravenous iron therapy and was started on oral antibiotics.
iv. She then developed an episode of feta l tachycardia on 2 2nd October
2018 after completion of her intravenous iron thera py and her oral antibiotics
were changed to intravenous and she was monitored closely for any labour
signs.
v. There was no indication for c/section on 22nd October 2018 as
discussed in detail in paragraph 26 above.
vi. She went into labour on the 26th of October at exactly 37 completed
weeks of gestation and she developed feta l bradycardia.
vii. An emergency c/section was done and at c/section a ruptured uterus
was discovered, and the baby was a fresh stillbirth.
viii. A raptured uterus is a sentinel event and a known complication that
can occur to any person who goes into labour with a previous c/section.
ix. Since it is a sentinel event, it cannot be predicted and prevented by the
hospital staff.
x. Ms. Kubuayi's baby died in utero as a result of t he ruptured uterus and
there was nothing the staff could have done to prevent it.
xi. The staff at Elim Hospital, a district hospital without specialists acted
promptly in response to a feta l bradycardia, and courageously to repair the
uterus after th e diagnosis of the ruptured uterus.
xii. This tragedy was not preventable, the Ors and the staff at Elim hospital
must be commended for saving Ms K[...]'s life and also saving her uterus as
these type complications often end up with severe morbidity and so metimes
mortality." (Own emphasis added)
Legal Principles and the Law:
[11] The legal relationship between a medical practitioner and a patient is usually
created by contract. The practitioner undertakes to render professional services and
the patient undertakes (normally) to pay for services rendered.
[12] The Defendant had an obligation by contract and by delict. The Defendant
had a duty of care towards the Plaintiff, being indigent, to provide proper care, and
not to harm or to injure her or her baby.
[13] In order for the Plaintiff to succeed with her claim for damages, she must
allege and prove: -
a) the contract or agreement;
b) negligent breach of the contract;
c) causation; and
d) damages.
[14] It is an implied term of the contract between medical practitioner and patient
that the me dical practitioner will exercise the reasonable skill and care of a
practitioner in the particular field. In deciding what is reasonable, the evidence of
qualified physicians is of the greatest assistance, however, what is reasonable under
the circumstance s is a matter for the court to decide . (See Van Wyk v Lewis 1924
AD 438).
[15] Expert evidence must be evaluated in accordance with the principles
enunciated by the Supreme Court in Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another (1) (361/98) [2001] ZASCA 12; [2002] 1 All SA 384 (A) (13
March 2001) at paragraph 34 :-
"However, it is perhaps as well to re-emphasise that the question of
reasonableness and negligence is one for the court itself to determine on the
basis of the various, and often conflicting, expert opinions presented. As a
rule that determination will not involve considerations of credibility but rather
the examinatio n of the opinions and the analysis of their essential reasoning,
preparatory to the court are reaching its own conclusion on the issues raised."
[16] The Supreme Court of Appeal in Michael and Another v Linksfield Park
Clinic supra at paragraphs 36 to 37 held as follows: -
"[36] ... what is required in the evaluation of such evidence is to determine
whether and to what extent their opinions advanced are founded on logical
reasoning. That is the thrust of the decision of the House of Lords in the
medical negligence case of Bolitho v City and Hackney Health Authority [1997 ]
UKHL 46; [1998 ] AC 232 (H.L.(E.) ). With the relevant dicta in the speech of
Lord Browne -Wilkinson we respectfully agree. Summarised, they are to the
following effect.
[37] The court is not bound to absolve a defendant from liability for allegedly
negligent medical treatment or diagnosis just because evidence of expert
opinion, albeit genuinely held, is that the treatment or diagnosis in issue
accorded with sound medical practice . The court must be satisfied that such
opinion has a logical basis, in other words that the expert has considered
comparative risks and benefits and has reached "a defensible conclusion"
[17] It was further held in paragraph 40 of Michael and Another v Linksfield
Park Clinic supra that:-
"Finally, it must be borne in mind that expert scientific witnesses do tend to
assess likelihood in terms of scientific certainty. Some of the witnesses in this
case had to be diverted from doing so and were invited t o express the
prospects of an event's occurrence, as far as they possibly could, in terms of
more practical assistance to the forensic assessment of probability, for
example, as a greater or lesser than fifty per cent chance and so on. This
essential diffe rence between the scientific and the judicial measure of proof
was aptly highlighted by the House of Lords in the Scottish case of Dingley v
The Chief Constable, Strathclyde Police, 200 SC (HL) 77 and the warning
given at 89 D-E that:
"(o)ne cannot entire ly discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts, a judge may be
seduced into a position where he applies to the expert evidence the standards
which the expert himself will apply to the ques tion whether a particular thesis
has been proved or disproved - instead of assessing, as a judge must do,
where the balance of probabilities lies on a review of the whole of the
evidence.
[18] From the documentary, as well as viva voce evidence before me , it is clear
that there was an agreement between the Plaintiff and the medical practitioners
and/or the medical staff members and nurses at Elim Hospital. They had a duty of
care towards the Plaintiff and her unborn baby.
[19] The inquiry therefore is whether there was fault, in this case, negligence. In
Mashongwa v Passenger Rail Agency of South Afric a 2016 (3) SA 528 (CC) at
para 64 , it was stated as follows: -
"The wrongful conduct must cause the wronged person to suffer loss. The first
step in proving this is to prove that the wrongful conduct of the staff caused
the baby to suffer brain damage. The appellant accordingly bore an onus to
prove this. Wrongfulness should not be conflated with factual causation."
[20] The inquiry whether there was negligence involves a twofold inquiry. In the
much quoted dictum of Holmes JA in Kruger v Coetzee 1966 (2) SA 428 (A) it was
stated that the inquiry rests on two bases, first, whether the harm was reasonably
foreseeable and secondly, would the diligens paterfamilias take reasonable steps to
guard against such occurrence and did the Defendant fail to take those steps.
[21] The failure of the professional persons, doctors, nurses and staff members at
Elim Hospital to adhere to the general level of skill and diligence possessed and
exercised at the same time by the members of the branch of the profession t o which
he or she belongs would normally constituted negligence.
[22] The Supreme Court of Appeal restated the test as in Mukheiber v Raath and
Another 1999 (3) SA 1065 (SCA) at 1077 E F by adopting the following test as
proposed by Prof. Boberg in the Law of Delict at 390 :
"For the purposes of liability culpa arises if -
(a) a reasonable person in the position of the defendant -
(i) would have foreseen harm of the general kind that actually occurred;
(ii) would have foreseen the general kind of causal sequence by which
that harm occurred;
(iii) would have taken steps to guard against it, and
(a) the defendant failed to take thos e steps".
[23] This latter formulation involves a narrower test for foreseeability than that
propounded in Kruger v Coetzee , supra by relating it to the consequences produced
by the conduct in question and effectively conflating negligence and so called "legal
causation " in order to eliminate the problems associated with remoteness. See the
judgment of Scott JA in Sea Harvest Corporation v Duncan Dock Cold Storage
2000 (1) SA 827 (SCA) at 839 .)
[24] Essentially, the test in the Mukheiber -case, supra involves a consideration
both of factual causation and of remoteness in order for culpa to be established. But
Scott JA stated in the Sea Harvest case , supra at 839 E - F that he had not
understood the judgment in the Mukheiber -case to have unequi vocally embraced
the relative theory of negligence and went on to observe that there probably can be
no universally applicable formula appropriate to every case.
[25] In Van Wyk v Lewis 1924 AD 438 at page 444, Innes CJ said the following
about the appli cable test for determining whether a medical practitioner was
negligent in the performance of his or her duties: -
"it was pointed out by this court, in Mitchell v Dixon (1914 AD p525) that "a
medical practitioner is not expected to bring to bear upon a cas e entrusted to
him the highest possible degree of professional skill but he is bound to employ
reasonable skill and care. In deciding what is reasonable, the court will have
regard to the general level of skill and diligence possessed and exercised at
the time by the members of the branch of the profession to which the
practitioner belongs. The evidence of qualified surgeons or physicians is of
the greatest assistance in estimating that general level."
[26] It cannot be determined in the abstract whether a surgeon has or has not
exhibited reasonable care and skill. The question to be answered is whether the
Defendant's doctors and medical staff members acted as average surgeons and
medical staff members, placed in similar circumstances, would have acted, or did
they manifestly fall short of the skill, care and judgment of the average surgeon and
or medical staff members in similar circumstances.
[27] In the present matter, the simple answer to the abov e question is " NO". The
Plaintiff was classified as a high risk patient, she had complications and was a
previous C -Section patient. She was admitted in Elim Hospital to be monitored
because she was a high risk patient from the 18th of October 2018. On the 25th of
October 2018, she was transferred and admitted in the labor ward. The Defendant
therefore knew that she was a high risk patient, with complications and was in labour
- they knew she had to be monitored closely. They never even discussed the mode
of delivery with the Plaintiff.
[28] Although Dr. Mbokota stated that the Plaintiffs ruptured uterus was a sentinel
event and a known complication that can occur to any person who goes into labour
and since it is a sentinel event it cannot be predicted a nd prevented, with which I
agree, I do not agree that the tragedy was not preventable. The ruptured uterus
might not have been preventable, but certainly the outcome could have been
prevented had the medical staff and doctors acted promptly in the cir cumstances as
was required from the reasonable doctor, nurse, medical staff in the same situation.
[29] Considering the fact that the Plaintiff was a previous caesarean patient, there
was persistent foetal tachycardia recorded, anaemia and she complained of lower
abdominal pains and in particularly that she felt a rupture like pain around 06h00 am
in the morning and called for help, but nobody came whereafter she had to ask one
of the patients to assist her to get to the nursing station where she was simp ly told to
go back to sleep without giving her any attention or even just checking her, speaks
volumes of the care the Plaintiff did not receive. Had the nurses heeded to the
Plaintiffs cry for help, attended and monitored her or even called a doctor, this
tragedy would not have happened.
[30] In my view, the Plaintiff succeeded in alleging and proving that the treatment
and monitoring given to her at Elim Hospital was grossly sub -standard and negligent
in the circumstances.
[31] In my view, had the Hospital staff acted with reasonable care on the morning
of 26 October 2018 and attended to the Plaintiff, a c -section could have been done
earlier and the tragic outcome could have been prevented.
[32] The Defendant's members failed to give the right amount of care at the right
time. The Defendant further failed to examine, monitor and operate the Plaintiff at the
opportune moment when, the Plaintiff started to complain of her lower abdominal
pain and especially on the morning of 26 October 2018 when she cried for help but
was only assisted once the nurses, several hours later, saw that she is shivering and
sweating. The Plaintiff was simply left several hours unattended and unmonitored on
a bench d espite being an admitted high risk patient in the labour ward at the Elim
Hospital and with tell -tale-signs of a uterine rapture present.
[33] The death of the Plaintiff's unborn child was caused by the negligence of the
staff of the Defendant in failin g to properly and timeously care for the Plaintiff. The
Defendant did too little too late, which I find to be shockingly unacceptable, and
amounting to gross negligence, especially because the Plaintiff was all along
admitted in hospital.
[34] I am un der the circumstances, having considered the evidence and reports
presented, satisfied that the Plaintiff succeeded in alleging and proving that there
was a contract or agreement, there was negligent breach of the contract, causation
and that she suffered damages in the consequence. The Defendant and its medical
personnel did not exercise and act with the reasonable skill and care expected of a
practitioner in the circumstances and therefore the Defendant was in negligent
breach of the contract between pati ent and medical staff members of the Elim
Hospital.
[35] By virtue of all the evidence and facts placed before me, only one conclusion
can be drawn and that is that the Defendant is 100% liable for the Plaintiffs proven
and/or agreed damages.
[36] I therefore make the following order: -
1. The Merits are awarded 100% in favour of the Plaintiff.
2. Cost of suit on a party and party scale - Scale B, which costs shall
include, but not be limited to the costs of two counsels, one senior and one
junior, where so employed and all expert costs, including consultations,
drafting of reports and joint minutes, and reservation costs, where applicable.
M. NAUDE -ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE.
APPEARANCES:
HEARD ON: 26 & 27 August, as well as
11 September 2024
HEADS OF ARGUMENT
SUBMITTED IN CLOSING
ARGUMENT: 4 NOVEMBER 2024
JUDGMENT DELIVERED ON: 27 JANUARY 2025
For the Plaintiff: Adv. H. Mphe SC
appearing with Adv. L. Makgopa
Instructed by: TT Kgomokaboya Inc. Attorneys
Polokwane,
tumelo@ttkgomoinc.co.za
For the Defendant: Adv. C Mokhare SC
Appearing with Adv. B. Mashego
Instructed by: The State Attorney
Polokwane
Ref:954/19/KT
ktepanyega@just ice.gov.za
kselowa@justice.gov.za