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, MAKHANDA )

CASE NO. 3024/2019
Not reportable

In the matter between:

Y[...] T[...] obo H[...] N[...] T[...] PLAINTIFF

and

THE MEMBER OF THE EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF HEALTH,
EASTERN CAPE DEFENDANT


JUDGMENT


Rugunanan J

[1] H is a minor male aged 8 who was born on 17 September 2016 at 04h35 in
East London at Frere Hospital (the hospital) . The hospital is a provincial

establishment which is controlled and operated by the Eastern Cape Department of
Health. It falls under the jurisdiction of the defendant who is in law responsible for
any injury caused by the negligence of the medical and nursing staff (the
medical/hospital staff) who are employed there .

[2] In September 2016 the plaintiff submitted to supervision, obstetric care and
medical treatment administered by the defendant’s hospital staff . It is common cause
that H currently suffers from quadriplegic palsy – a condition ascribed to an injury to
the brain that occurred during the plaintiff’s labour and birthing when he was born in
‘a hypoxic state having sustained neonatal encephalopathy in the intrapartum stage ’
(the injury ). Maintaining that her child ’s injury arose from negligent treatment
rendered by the hospital staff, the plaintiff instituted this action on 19 October 2019 in
her personal and representative capacities in which damages in delict are vicariously
claimed from the defendant.

[3] The claim in her personal capacity was premised on the contention that in
consequence of the negligence of the hospital staff the plaintiff experienced severe
psychological shock and trauma for which she will require counselling and treatment.

[4] Two special pleas were initially raised by the defendant. The first related to
prescription of the plaintiff’s claim for damages in her personal capacity.

[5] The second special plea concerned non -compliance with the notice provisions
of the Institution of Legal Proceedings against Certain Organs of State Act1. The
complaint was that the plaintiff failed to serve written notice upon the defendant in
respect of either her claim in her personal capacity or in her representative capacity .

[6] By agreement between the parties the special pleas were resolved. The
defendant did not pursue the issue of written notice and t he plaintiff abandoned her
claim for damages in her personal capacity .


1 Act 40 of 2002.
[7] The trial ran on the claim in her representative capacity on behalf of the minor
child. Following an order separating the issues of liability and quantum, the trial
proceeded on 12 August 2024 until 1 5 August 2024 on the merits of the antecedent
separated issu e. Argument was heard on 4 October 2024, with each party having
agreed to file written submissions.

[8] By agreement between the parties what fell to be determined by this Court
were, firstly, the question whether the hospital staff (admittedly acting within t he
course and scope of their employment with the defendant) acted negligently in their
treatment of the plaintiff during the course of her pregnancy, labour and birth of H
and, secondly, whether such negligence, if proved, was causally connected to his
injury.

[9] In both instances the onus lies with the plaintiff and the required standard is
proof on a balance of probabilities.

[10] It is well to recap the tests for determining negligence and causation.
Negligence is essentially about the failure to guard and take reasonable steps
against the occurrence of foreseeable harm of a general nature.2 The applicable test
is whether or not the medical practitioner exercised reasonable skill and care; in
other words, whether or not his/her conduct fell below the standa rd of a reasonably
competent practitioner in his/her field .3 In this context, the norm has always been:

‘… [I]n deciding what is reasonable the court will have regard to the general
level of skill and diligence possessed and exercised at the time by memb ers
of the branch of the profession to which the practitioner belongs.’ 4

2 The following preliminary attributes must be present: a reasonable person would have foreseen
harm, and a reasonable person would have guarded against it – see Kruger v Coetzee 1966 (2) SA
428 (a) at 430E -F. The reformulation of the test to include forese eable harm of a general kind appears
in Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1077E -F; see also Premier of the Western Cape
and Another v Loots NO [2011 ZASCA 32 para 13.
3 Castell v De Greef 1993 (3) SA 501 (C) at 512A -B cited with approval in Buthe lezi v Ndaba 2013 (5)
437 (SCA) para 15. The test was also confirmed in Goliath v Member of the Executive Council for
Health in the Province of the Eastern Cape [2015] JOL 32577 (SCA), para 8.
4 MEC for Health and Social Development, Gauteng Province v MM obo OM [2021] ZASCA 128 para
6 and footnote thereto. During argument the defendant referred to several cases emphasising the
prescript of reasonableness, albeit in a factual context distinguishable from the present. See Mitchell v
Dixon 1914 Ad 519; Wapnic k and Another v Durban City Garage and Others 1984 (2) SA 414

[11] In that regard , the court often relies on the assistance of experts from the
medical profession in navigating through the particular intricacies of the medical field.
Although medic al opinion is of value to the court, the ultimate decision of what is
reasonable conduct in the circumstances is reserved for the court. It is worth noting
that in arriving at their opinions, medical experts frequently apply a scientific level of
proof app roaching certainty. Courts must guard against adopting this standard.5

[12] On causation, the question to be asked is what would have happened if the
negligent conduct or omission of the treating staff is mentally eliminated and
hypothetically replaced with lawful conduct. If a plaintiff established that in such
event his condition w ould on a preponderance of probabilities not have happened,
he would be entitled to recover his damages because causation will be regarded as
having been established as a fact.6 In Minister of Safety and Security v Van
Duivenboden7 the Supreme Court of A ppeal aptly summed up the position in the
following terms:

‘A plaintiff is not required to establish a causal link with certainty, but only to
establish that the wrongful conduct was probably a cause of the loss, which
calls for a sensible retrospective an alysis 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.’

[13] The legal principles aforementioned inform the reasoning and order arrived at
the conclusion of this judgment.

[14] The plaintiff pleaded that the defendant’s hospital staff had been negligent in
their management, supervision and treatment of her during the bir th of H and that
their negligence caused the injury and its sequelae for which damages are claimed
on behalf of H.

(D&CLD); Oppelt v Head: Department of Health Provincial Administration Western Cape 2016 (1) SA
325 (CC); Medi Clinic v Vermeulen 2015 (1) SA 241 (SCA).
5 MEC for Health and Social Development, Gauteng Province v MM obo OM supra para 6.
6 International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700F -701G.
7 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 26.

[15] The plaintiff also pleaded that the staff knew or ought reasonably to have
known that hers was a high risk pregnancy due to her obesity and due to the fact
that she had previously delivered by caesarean section (in 2008) . By reason of these
factors she should not have been allowed to deliver by normal vaginal delivery, but
instead she ought to have been booked for a caesarean procedure and her
pregnancy from 15 September ought to have been properly monitored until the
procedure was effected to ensure safe delivery of her child.

[16] On the negligence issue the evidence in support of the plaintiff’s case was
presented on the footing that the re was a failure by the hospital staff to observe the
applicable maternity care guidelines in the course of monitoring her pregnancy
during her period of hospitalisation. I t is not in dispute that the 2015 Guidelines for
Maternity Care in South Africa were applicable at the time (the guidelines).

[17] The guidelines are intended for implementation in every South African health
care facility and for training purposes at medical and nursing schools throughout the
country. They contain the basic minimum standards of professionalism in health care
that needs to be known by all professional staff at hospital s controlled and operated
throughout the country by the various provincial depar tments of health .8 They have
been held to be the accepted national benchmark against which the standard of
maternity care is measured and provided to parturient women . A departure or failure
to observe them amounts to negligence .9 Put otherwise, the guidelines construct the
general level of skill and diligence to be exercised at the time.

[18] The defendant countered causal negligence and pleaded that the injury
suffered by H was caused by the plaintiff’s sole and exclusive negligence;
alternatively , that she was contributorily negligent in that , inter alia , she experienced
strong uterine contractions for several hours and delayed unre asonably in only
presenting herself to the hospital for treatment at 01h26 on 17 September .


8 Foreward to the 2015 guidelines .
9 Nkamela obo ON v MEC for Health Eastern Cape [2022] ZAECBHC 15 para 10.
[19] A substantial p art of the defendant’s case and argument was heaped on this
issue. It has been put beyond doubt that i n so far as a custodian parent litigates in
his/her representative capacity their contributory negligence does not apply as a set
off or apportionment of a debt or’s liability to a minor child . Put a nother way, in a
delictual action instituted by a parent on behalf of a minor, the contributory
negligence of that parent has no effect in reducing the child’s claim. The position
may be different if the plaintiff persisted with her personal claim10 (in which event the
loss she suffered must lie where if falls11). With regard to the claim on behalf of H ,
the plaintiff’s contributory negligence or apportionment does not arise . All that is
required for imputing negligence to the defendant is proof of the so -called proverbial
one percent er12.

[20] The plaintiff gave notice for qualify ing the following experts and their reports :
Dr M Wright an obstetrician and gynaecologist (report dated 19 June 2019); Dr B
Alheit, a diagnostic radiologist (reports dated 13 October 2020 and 17 June 2022);
Professor A Coetzee, an anaesthetist/critical care specialist (report dated 31 July
2023); Dr Y Kara , a paediatrician (report dated 16 December 2019); and Professor J
Anthony, an obstetrician (reports dated 27 November 2023 and 10 January 2024 ).

[21] The defendant filed notices in respect of: Dr C Nel, an obstetrician and
gynaecologist (reports dated 3 March 2022, 1 April 2022, and 28 March 2023);
Professor P Cooper, a paediatrician and neonatologist (reports 1 April 2022 and 3
April 2023); and Professor D Bishop, an anaesthetist (report dated 11 April 2023).

[22] Joint minutes were prepared by: Dr Wright and Dr Nel (dated 4 April 2020); Dr
Kara and Professor Cooper (dated 4 June 2022); Professor Coetzee and Professor
Bishop (dated 19 June 2024); and Professor Anthony and Dr Nel (dated 25 June
2024).


10 See Van Vuuren v Ethekwini Municipality 2018 (1) SA 189 (SCA) paras 33 -34 in which the SCA
expressly approved of the legal position set out in RAF v Myhill NO 2013 (5) SA 426 (SC A) paras 28 -
29.
11 In this regard I allude to the defendant’s heads of argument wherein reference is made to Broude v
McIntosh and Others 1998 (3) SA 60 (SCA) at 75A -B.
12 Ndaba v Purchase 1991 (3) SA 640 (NPD) at 641H.
[23] The evidence in its entirety including the pleadings, reports and joint minutes
of the various experts is extensive and is a matter of record. For that reason it is
intended only to focus on the most salient aspects for purposes of this judgment.

[24] On the merits the evidential matrix covered the test imony of the pl aintiff
followed by Dr Alheit, Dr Kara, and Professor Anthony. Testifying for the defendant
was the only witness, Professor Cooper . Each expert c onfirmed the contents of his
report when he testified. The parties also accepted that each of th e experts had the
requisite qualifications and clinical experience to testify in their specialities of
professional competence. The joint minutes contextualised the issues identified for
determination by the Court. Where necessary, each expert referred to his individual
report.

[25] Dispensing with the need to call Professor Coetzee and Professor Bishop,
their joint minute was admitted into evidence by agreement but was not addressed in
argument. Dr Wright and Dr Nel did not testify. The ir minute was subjected to
comment by Professor Anthony even though its evidential status or admissibility was
not dealt with during any of the series of rule 37 conferences between the parties.
Although during the course of testifying Professor Anthony refer red to select aspects
of their minute , neither of the parties indicated that the minute was binding on either
of them. It is not intended to disregard the minute in its entirety13. Where relevant on
matters that are not in dispute it will be dealt with but argumentative matter that will
otherwise add to the prolixity of this judgment will be no t be recapitulated . As with
that of Professor Coetzee and Professor Bishop, the minute, in any event, does not
advance the case for either of the parties. The evidenc e of the experts who testified
is sufficiently dispositive of the main issues for determination.

[26] In the preparation of their respective reports none of the experts who testified
consulted directly with the plaintiff. The opinions detailed in their reports and in the
joint minutes were postulated on their individual assessments of the hospital,
medical and clinical records relating to H and the plaintiff (the medical records). From

13 As in MEC for Health and Social Deve lopment, Gauteng v MM obo OM [2021] ZASCA 128 para 16 .
that perspective no useful purpose would be served in navigating the testimon y of
the plaintiff in any particular depth.

[27] It is appropriate nonetheless to say something about the plaintiff at the outset.
She was assisted by an interpreter. She was single witness on numerous aspects
that did not accord with the medical records. She w as evasive, inconsistent and
manufactured her evidence to suit the moment. She was a highly unsatisfactory
witness – justifiably hammered during cross -examination. While not a satisfactory
witness in all respects, the proper approach in evaluating her evid ence is not
whether she was truthful or reliable in all that she said but whether her version
assists in determining the balance of probabilities.14 To that extent her evidence will
be selectively mentioned.

[28] In recapping the approach to be taken in the eva luation of expert evidence,
the Supreme Court of Appeal in Michael and Another v Linksfield Park Clinic15 set
out the position as follows:

‘As a rule the determination will not involve considerations of credibility but
rather the examination of the opinions and the analysis of the essential
reasoning, preparatory to the court’s reaching its own conclusion on the
issues raised… That being so, what is required in the evaluation of such
evidence is to determine whether and to what extent their opinion s advanced
are founded on logical reasoning.’

[29] In MEC for Health and Social Development, Gauteng v MM obo OM16 the
court observed (footnotes omitted):

‘Such testimony, in a medical matter, amounts to an opinion on how accepted
medical principles apply to the facts. It is admissible where the person
rendering the opinion is qualified to do so. The opinion must be properly
motivated so that the court can arrive at its own view on the issue. Where the

14 Compare in this regard Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) para 10.
15 [2001] ZASCA 12 paras 34 -36.
16 [2021] ZASCA 128 para 17.
opinions of experts differ, the underlying reasoning of the v arious experts
must be weighed by the court so as to choose which, if any, of the opinions to
adopt and to what extent. The opinion of an expert does not bind a court. It
does no more than assist a court to itself arrive at an informed opinion in an
area w here it has little or no knowledge due to the specialised field of
knowledge bearing on the issues.’

[30] Turning to the evidence and reports, Dr Alheit explained the presentation of
the injury to the brain of H as depicted in a MRI scan. H e identified features of a
watershed pattern. This was accentuated by two biomarkers in the thalamic region.
The pattern is consistent with a hypoxic ischaemic injury that presented in its chronic
phase. Describing its mechanism, he testified that the onse t of the injury is an insult.
Because labour is essentially a hypoxic event – contractions during labour that are
either too frequent or too prolonged have the effect of impairing the blood flow and
consequent oxygen provision to the foetus. The hypoxic insult is occasioned by a
deprivation of blood and oxygen to the foetal brain and transforms into an injury if the
deprivation endures long enough. Oxygenated blood is diverted away from the
human part of the foetal brain (the cortex) towards the central par t (the reptilian
complex). The observed watershed pattern on the image depicted an injury that
evolved over many hours and excluded a sentinel event.

[31] An MRI image only serves as a vehicle for identifying an injury. It does not
assist for timing the insult or the injury. Dr Alheit’s evidence was based on his
interpretation of the image without reference to the hospital records. As a radiologist,
he correctly refrained from commenting on the obstetric aspects of the plaintiff’s
management where this wa s attempted in cross -examination.

[32] In dealing with the remaining evidence, and stated in summary, the joint
minute between Dr Wright and Dr Nel (only in so far as Professor Anthony agrees
therewith) as well as the testimony of Professor Anthony supported by his joint
minute with Dr Nel, establishes a timeline with the following being common cause
(either as emerging from the evidence or standing as objective facts from the
material at hand) :

33.1 In 2008 the plaintiff had a previous pregnancy that was termin ated by
caesarean section for pregnancy -induced hypertension;

33.2 She attended the hospital and Central Clinic, East London for her
antenatal care;

33.3 She was admitted to the hospital on 14 September 2016 at 08h45 with
abdominal pain;

33.4 On admission she was not in labour and the foetal condition appears to
have been good;

33.5 She was grossly obese with a BMI (body mass index) of 46 on
admission on 14 September;

33.6 She requested a vaginal birth after caesarean section (VBAC);

33.7 The foetal head sh owed no signs of descending into the maternal
pelvis prior to her going into labour which is not a favourable sign for a
successful VBAC;

338 According to the guidelines, women with a BMI greater than 40 are not
suitable for a VBAC because of the increased risk to both mother and
baby;

33.9 Had elective caesarean surgery been considered it should have been
done at admission stage as the plaintiff was then 38 weeks and 6 days
pregnant;

33.10 The possible complications of a VBAC do not appear to have been
noted in any detail in the hospital records;

33.11 The plaintiff was discharged on 16 September at 12h32 and could have
been in the latent phase of labour;

33.12 She was readmitted on 17 September at 01h26 (the readmission )
when she was in very advanced la bour;

33.13 As per the pleadings it is admitted that on readmission the plaintiff
presented with strong uterine contractions which had reportedly been
present for several hours and that she wanted to bear down;

33.14 She was readmitted some 13 hours later and must have been in active
labour for some hours prior to readmission ;

33.15 From the time of readmission cardiotocography ( CTG ) tracings were
abnormal and pathological indicative of a hypoxic insult;

33.16 Foetal hypoxia must have been present and established prior to
readmission ;

33.17 The risk of hypoxic insult to a foetus is propo rtional to the stage of
labour;

33.18 H was born on 17 Se ptember at 04h35 following a caesarean
procedure.

[33] In commenting on the obstetric management of the plaintiff , what preoccupied
Professor Anthony, was the question whether the medical staff appreciated risk
factors that indicated the need for intervention so that the injury would have been
avoided. Affirming that the plaintiff’s monitoring and treatment was substa ndard h e
postulated that there was a need for elective caesarean surgery when the plaintiff
was admitted to the hospital on 14 September. The assessment indicated in the
hospital records that she was eligible for a vaginal birth after caesarean section
(VBAC) was inconsistent with the guidelines for managing her pregnancy and
exposed her to the risk of emergency surgery on 17 September due to her advanced
stage of labour. The deviation from the guidelines without good reason was
tantamount to subjecting the plaintiff to substandard treatment that increased the risk
of foetal injury.

[34] To begin with, on date of initial admission the hospital records indicate that
the plaintiff was complaining of lower abdominal pain. In his joint minute with Dr Nel,
Professor A nthony notes that a diagnosis of labour could not be made because
increasingly strong uterine contractions did not occur and no cervical dilation was
observed during the admission. In the interval between 11h35 until 17h05 several
CTG tracings were recorde d. These indicated normal foetal wellbeing.

[35] When the plaintiff was seen by a doctor at 11h35 the records indicate the
entry, ‘request VBAC’ . Prior thereto during an antenatal visit on 31 August 2016 her
records indicate ‘patient wants VBAC’ , and elsewhere it is shown ‘eligible for VBAC’.
In cross -examination the attempt was made to suggest to Professor Anthony that the
entries pertaining to a VBAC emanated from requests by the plaintiff. Parenthetically,
she was wedded to asserting the contra ry. While acknowledging that he did not
know what the process of interchange was between the attending doctor and the
plaintiff on date of admission, Professor Anthony’s sense was that the doctor thought
that the plaintiff was eligible for a VBAC. Even if it is accepted that she requested a
VBAC, Professor Anthony maintained that a patient in the position of the plaintiff is
disempowered through lack of medical knowledge. There were risk factors that
placed an obligation on the medical staff to counsel her that a VBAC was inadvisable
and if she persisted in wanting it, the staff were obliged to document in clear terms
that her choice was contrary to medical advice. This underscores the rationale for
informed consent, with the patient being given the right to make an autonomous
decision about what they wish to do provided that there is adequate disclosure of
risks. The records offer no indication that the plaintiff was counselled on the risk
factors that are contraindicative for a VBAC.

[36] According to Professor Anthony, the risk factors that were extant at the time of
her admission included , the history of pregnancy -induced hypertension, her HIV
status, and her obesity. The hypertension did not re -establish itself and the plaintiff
was biologically suppressed since she was on HIV treatment. There was no
indication that these fac tors posed any significant risk except for her obesity signified
by a BMI of 4 6 clearly documented by the medical staff.

[37] In terms of the guidelines the relevance of a BMI in excess of 40 is that
elective surgery should take place and not a VBAC. On the plaintiff’s initial admission
no signs of foetal hypoxia were exhibited. Had there been a recognition that her
obesity was a contraindication to a VBAC in circumstances where there was normal
foetal wellbeing , Professor Anthony believes that elective surgery would have
resulted in the delivery of a baby that had not been subjected to the process of
labour and all the risks associated therewith. He explained that in the absence of
complications to a patient, the benefit of elective surgery is t hat it is done by senior
medical staff who are guaranteed to be available during normal hours. Emergency
surgery on the other hand , suggests that there is a reason to perform a surgical
procedure imminently. It is often done after hours (as it was in the p resent case ),
usually not by the most senior medical staff but by wh oever is on duty at the time .
This evidence was not disputed. Seen in this context the guidelines, in the case of a
patient with a body mass index exceeding 40, indicated that elective sur gery should
take place to avoid an emergency.

[38] The hospital records indicate that observation of the plaintiff continued on 15
and 16 September. Sometime between 06h07 and 07h33 on 15 September she was
examined in the labour ward and it was noted that her a bdominal pain had
diminished and that her pads had remained dry (contrary to her assertions that her
water had burst the previous day and that the attending doctor had seen this ). The
overall assessment was that no significant change had been observed over the
preceding 24 hours and if the plaintiff remained well she could possibly be
discharged the following morning.

[39] On 16 September i n the period 05h59 until 12h32 the plaintiff had been
monitored and examined. The nursing notes reflect that she was ‘draini ng liquor
clear since Wednesday’ . A doctor reviewed the plaintiff but the hospital notes are
scant intimating a cursory examination. Given the explicit note in which liquor was
described to be draining, Professor Anthony said that a careful and comprehensi ve
clinical assessment was necessary albeit that there is no evidence of this having
taken place. In the absence of such an assessment Professor Anthony asserted that
the plaintiff was inappropriately discharged at a stage when it was likely that she was
going into latent labour (because she returned fully dilated upon readmission ).
Having sent the plaintiff home to labour unattended meant that the prescribed and
necessary process of foetal monitoring during labour did not occur. In his joint minute
with Dr Nel, Professor Anthony expresses the view that the decision to discharge the
plaintiff at 12h32 on 16 September was a critical decision, unjustified in the brief note
appended by the attending doctor at the time.

[40] On 17 September at 01h26 the plaint iff was readmitted with ‘strong labour
pains’ . Vaginal examination revealed that she was fully dilated with bulging
membranes that erupted spontaneously revealing meconium stained liquor.
Professor Anthony opined that a fully dilated cervix defines the ons et of the second
stage of labour, and at that point the clock started running. The plaintiff was in the
second stage of labour which meant that the entire first stage went by unobserved
and unmonitored. He believed that the onset of foetal hypoxia was high ly probable
prior to the plaintiff’s readmission when she was fully dilated. In his view it highlights
the consequences that arose from the decision made just over 12 hours earlier to
discharge the plaintiff home at a time when the nursing notes indicated she may
have been going into latent labour. The onset of foetal hypoxia was highly probable
prior to the plaintiff’s readmission when she was fully dilated. Following her
readmission , the finding of a 9 cm dilated cervix after the membranes had ruptured i s
not unusual and does not preclude the diagnosis of a 10 cm dilated cervix on
presentation. A CTG was initiated17 and exhibited prolonged decelerations and slow
recovery. The decelerations were about 4 minutes apart. He considered that the
tracing was pat hological and indicative of a high probability of underlying foetal
hypoxia. According to the guidelines, decelerations indicate the possibility of uterine
rupture and are an indication for immediate repeat caesarean surgery. In the context
of a VBAC, this would have been of immediate significance. A pathological tracing is
an indication for immediate intrapartum foetal resuscitation which according to the
guidelines entails inter alia : placing the woman in the left lateral position (for
improving maternal cardiac output), administering oxygen with a face mask for

17 apparently at 01h22(?).
improving the concentration of oxygen in blood transmitted to the foetus, and the
administration of a tocolytic drug such as salbutamol for slowing down or reducing
contractions. According to inter national guidelines18 foetal oxygenation eases the
return of a normal tracing allowing for the continuation of labour and the reversal of a
hypoxic insult. None of these elements of intrauterine foetal resuscitation were done.
There was no foetal resuscita tion and no immediate recourse to caesarean surgery.
This was in breach of the guideline recommendations and amounted to substandard
care.

[41] A doctor arrived to examine the plaintiff at 02h30. The doctor was called
because of the non -reassuring CTG tracing. The doctor’s note in the hospital records
indicates that it improved prior to the doctor’s arrival. It was noted that the baby was
clinically very big. The assessment and plan was that the plaintiff be afforded 30
minutes for bearing down in anticipation of shoulder dystocia and if no progress had
been made by 03h00 then caesarean surgery be scheduled. At 02h45 the plaintiff
was prepared for caesarean surgery and transferred to theatre. According to
Professor Anthony, the doctor’s evaluation of the tracing as ‘improved’ was irrelevant
due to the fact that the tracing had insufficient criteria to be regarded as normal. This
evidence was not contradicted. He testified that t he doctor’s assessment was
incorrect. When the doctor saw the plaintiff, she had been fully dilated and bearing
down from the time of readmission . According to Professor Anthony, from time of
readmission this will have meant that she had been in the second stage of labour for
more than one hour and bearing down for more than 30 minutes. The plaintiff’s
labour was prolonged. A prolonged second stage of labour is defined by the
guidelines as: (a) the foetal head has not descended onto the pelvic floor after 2
hours of full dilation; and (b) delivery has not occurred after 45 minutes of pushing
down in a nullipara, or 30 minutes of pushing in a multipara. Whereas the abnormal
CTG tracing was the first clear indication for immediate caesarean delivery, the
plaintiff’s slow progress during the second stage of labour heightened the risk of
uterine rupture (due to intra -abdominal adhesions) and was the second clear
indication for immediate caesarean delivery in the case of a ‘big baby’.


18 The FIGO consensus group.
[42] Professor Anthony mentions in the joint minute (and Doctor Nel agrees) that a
prolonged stage of labour is likely to precipitate or aggravate any underlying foetal
hypoxia. The medical staff did not recognise this and the sole basis for planning
surgery was their concern about dystocia rather than foetal distress. This was
substandard care.

[43] It was canvassed with Profe ssor Anthony during cross -examination that the
plaintiff had strong uterine contractions for several hours prior to her readmission
and delayed in presenting herself to the hospital19, hence she prolonged the second
stage of labour and advanced the risk of foetal injury associated therewith. On the
question of delay Professor Anthony countered that the plaintiff on readmission
presented herself for care and treatment in circumstances where there were clear
indications for intervention and the medical person nel failed to intervene
appropriately. In summing this up, it is Professor Anthony’s stance that the failure by
the medical staff to intervene appropriately assumes greater significance than the
plaintiff’s delay. Furthermore, Professor Anthony reasoned that the plaintiff was fully
dilated when she was readmitted and that she delivered just over 3 hours later.
While he believes that this may account for the evolution of the watershed pat tern
evidenced by the MRI scan, his evidence – as will be apparent from what follows
below – indicates that his expertise in obstetric management /monitoring entailing
foetal and maternal medicine only allows for determining the presence or timing of a
hypo xic insult.

[44] Going back into the hospital records, t he administration of anaesthesia took
place at approximately 04h10 but was complicated by the plaintiff’s obesity. This
rendered it difficult for the anaesthetist to find the appropriate spot in her lumba r
region for dispensing it. The hospital notes indicate that 10 attempts were made.
Surgery commenced at 04h25 and the plaintiff’s baby was delivered at 04h35. The
delay in the anaesthetic procedure has been dealt with in the joint minutes by the
anaesthet ists and is common cause. The delay accentuate s the failure by the
hospital staff to recognise the plaintiff’s obesity as a complicating factor in

19 The admitted delay for several hours arises from the pleadings – see replication para 10.
emergency surgery that according to Professor Anthony , would have led to
prolongation of foetal hypoxia.

[45] In scrutinising the timeframe in the above -mentioned narrative of events,
Professor Anthony noted that the anaesthetic procedure commenced some 2 hours
and 44 minutes after the plaintiff was readmitted and fully dilated with clear
indications of foetal distres s more than 1 hour and some 40 minutes after the doctor
had assessed her and indicated that caesarean surgery be scheduled if the plaintiff
did not deliver by 03h00. The delay was lengthy and was contrary to the international
standard of 30 minutes known a s the decision to delivery interval (DDI) for
emergency surgery. The outer limit for intervention at 1 hour according to the South
African guidelines was also breached.

[46] A further aspect of Professor Anthony’s evidence bears relation to the
distinction betw een a hypoxic insult and a hypoxic injury. Both involve a deprivation
of oxygen but are entirely different. An insult is an occurrence of sufficient severity
and sufficient duration to cause injury. Injury manifests once there is actual tissue
damage due t o oxygen deprivation. In the obstetric management or monitoring of a
pregnancy it is only the capacity to identify the presence of an insult that exists – the
timing of an injury cannot be made.

[47] As for the incursion of the insult, Professor Anthony, in a careful and logical
analyses , reasoned that the progress of labour in a multiparous patient takes place
extremely rapidly from 5 cm to 10 cm full dilation in about 2 hours. When the plaintiff
was readmitted she was already in the second stage of labour. Sh e was fully dilated
and it is quite likely that the period of relatively intense labour prior to readmission
would have been from 5 cm to 10 cm in the preceding 2 hours. This meant that the
plaintiff would have spent already 2 hours outside the hospital be fore she was
readmitted. Upon readmission she spent approximately 3 hours under the care of the
doctors and hospital staff where on the CTG tracings there was evidence of foetal
distress albeit with no appropriate medical response thereto. From this perspe ctive
Professor Anthony reasoned that the insult occurred in the greater period of the
plaintiff’s labour where she would have been at risk of developing foetal hypoxia in
the hospital and not outside.

[48] In the joint minute between him and Dr Nel there is ag reement that evidence
of hypoxia was probably present before the plaintiff’s readmission . This is evident
from the abnormal and pathological CTG tracings. Tracings , however , do not
measure the occurrence (understood to be timing) of an injury – it is in the second
stage of labour when injury is most likely to take place. With that in mind Professor
Anthony does not agree with the stance by Dr Nel (who concurs with Dr Wright) that
some degree of brain injury occurred probably prior to the plaintiff’s readm ission due
to her delay in seeking medical care . In this regard Professor Anthony sensibly
desisted from commenting on the question of the timing of the injury which he
believed fell within the domain of the paediatricians. He reasoned that it is the
secon d stage of labour upon the plaintiff’s readmission that supports the inference as
to the probability of injury based on the ‘epidemiology of adverse outcome’ . He
stressed that the second stage of labour was not prolonged by the defendant’s
persistence that the plaintiff delayed in getting to the hospital. The evidence in the
hospital records indicates that her second stage of labour was prolonged due to
substandard management and foetal heart rate monitoring that did not accord with
the guidelines.

[49] While it is common cause that H suffered an intrapartum hypoxic injury, the
issue for the paediatric specialists Dr Kara and Professor Cooper concerned the
timing of the injury.

[50] In the preparation of his report Dr Kara was supplied with a statement
obtained from t he plaintiff. She explicated the history of her labour on admission and
readmission . The inaccuracies in the statement compared to her oral testimony did
not have any material effect on the opinion expressed by Dr Kara.

[51] His evidence reveals that a non -reassuring abnormal and pathological CTG
tracing at the time of the plaintiff’s readmission was an indicator for hypoxic stress or
insult that most likely occurred before her readmission to the hospital. He supported
the view by Professor Anthony that the seco nd stage of labour commenced upon
readmission when she was fully dilated. It is in this stage of labour that the risk of
foetal brain injury is at its highest. His evidence as with that of Professor Anthony is
that the abnormal CTG tracing on readmission continued to be abnormal over
several hours until delivery of the plaintiff’s baby. The CTG trace offers no indication
of the occurrence of the injury. According to Dr Kara, it signifies that the foetal heart
enters the realm of decompensation or possible f ailure.

[52] In the present case there was no indication of the baby’s heart having failed
but the heart must have been compromised to the extent that it potentially affected
circulation of blood to the foetal brain. The passage of several hours is consistent
with the evolution of a brain injury in the form of a watershed pattern.

[53] Regarding the timing of the injury, Dr Kara opined that it is not known when it
occurred and the issue had to be determined on the basis of possibility and
probability. While it was po ssible that the injury occurred bef ore the plaintiff’s
readmission , it was not probable. The rationality or logic in his reasoning becomes
apparent from what follows below.

[54] It is recorded by agreement in the joint minute with Professor Cooper that
following the birth of the plaintiff’s baby:

‘4. Apgar scores were recorded as 5/10 and 6/10, [ the baby ] was described to be
flat, was resuscitated at birth with neopuff. Cord blood gases recorded severe
intrauterine hypoxia and respiratory acidosis (pH wa s 6.8 and base excess -
24)’

[55] In his description of the baby’s blood gas level, Dr Kara said that it was
‘terrible’ and indicative of severe metabolic acidosis at birth. The baby was
unresponsive (i.e. flat) and the records reveal that the baby was in a state of
respiratory distress at birth. These indicators , in particular the acidosis, suggest that
the bulk of the in jury probably occurred during the second stage of labour after the
plaintiff’s readmission . In this, t here is an underlying rationality that cannot be
faulted.

[56] Having said that the bulk of the injury probably occurred during the second
stage of labour , Dr Kara did not go beyond conceding the possibility that some of the
injury might have occurred before readmission . He fairly conceded in cross -
examination that the plaintiff’s delay may have occasioned some hypoxic i nsult prior
to her readmission , but the oc currence of the insult did not mean that the injury
occu rred prior to readmission . The passage of approximately 3 hours from
readmission to delivery had a material effect on the timing and level of the brain
injury.

[57] The difference of opinion between Dr Kar a and Professor Cooper concerned
the possibility versus the probability of brain injury before the plaintiff’s readmission .
Their joint minute reflects overall agreement on the matters reflected therein save
that their views differ on this issue.

[58] Professor Cooper appears to have been the major player in the defendant’s
case. None of the medical staff who were involved in the plaintiff’s treatment during
her confinement at the hospital were called to testify nor were any of the other
experts in regard to who m notice had been given. As with Professor Anthony and Dr
Kara, Professor Cooper’s curriculum vitae shows him to be a highly competent and
respected practitioner in his field.

[59] Professor Cooper agreed with Dr Kara that the bulk of the damage or injury
occur red in the 3 -hour period after readmission . In his opinion it was probable that at
least some of the injury occurred prior to readmission although it was possible that
all of it could have occurred after readmission , but on the probabilities he did not
consider this to be the case.

[60] From a medical perspective it is not clear what each of the experts intended to
convey by his use of the terms ‘possible’, probable and ‘bulk’ and there is no
consensus between them for attributing a common meaning to each of these terms .
Acknowledging that c ertainty from a scientific perspective is not the measure , a
common sense approach must prevail.

[61] As indicat ed above , Professor Cooper’s views are posited on facts that are
common cause in the joint minute between him and Dr Kara, the material portions of
which are reproduced hereunder for convenience:

‘5. [The baby] had encephalopathy with convulsions soon after birth. He
was diagnosed as having had hypoxic ischaemic encephalopathy.
There is no other probable cause of encephalopathy other than a
hypoxic ischaemic injury which was confirmed on MRI scan. Dr A lheit
described the pattern as a watershed type of injury together with
features in keeping with perinatal hypoglycaemia. However there was
no evidence of postnatal hypoglycaemia and it is probable that the MRI
changes described by Dr Alheit in this regard were part of the
intrapartum partial prolonged hypoxic ischaemic injury.

6. The blood gases which confirm metabolic acidosis, the concerns over
foetal distress, the need for resuscitation, the moderate
encephalopathy and the MRI scan findings make it prob able that there
was an intrapartum hypoxic ischaemic injury that resulted in the
cerebral palsy.

7. The neonatal management was of a good standard and did not
contribute to any further brain damage.’

[62] The text of the minute suggests that the experts laid em phasis on what they
considered to be probable , barring the question of timing.

[63] Confronted specifically by th is issue , Professo r Cooper was asked by
defendant’s counsel:

‘Could you briefly tell the court why you say it is not a mere possibility, it is a
probability that the injury occurred prior to [the plaintiff’s] admission?’

[64] He responded ‘… [T]here has been a lot of research into this particular pattern
of brain injury as to how long it takes of the so -called partial prolonged episodes to
cause brain dama ge and the difficulty is that one does not really know what has
been going on in utero and so it is very difficult to answer that question ’.

[65] He then proceeded to elaborate that there were several thousand s of babies
with hypoxic ischaemia t hat were born an nually at a hospital where he previously
served for several years. Significantly, he points out that ‘… if the intervention was
prompt usually an hour or 2, sometimes 3, all this kind of compromise, the baby did
not develop…’

[66] Professor Cooper’s reference t o the several thousand babies does not bind
the Court in accepting his opinion on the probability t hat at least some of the injury
occurred prior to the plaintiff’s readmission . Contrary to Dr Kara, i t is not sufficiently
motivated to provide a candid basis for its acceptance nor is it sufficient to absolve
the defendant from liability. Underlying Professor Cooper’s response is the notabl e
mention of prompt intervention, a thesis Professor Anthony persistently advocated
when he stated that the pl aintiff’s second stage of labour was prolonged because of
substandard management and monitoring that did not accord with the guidelines.

[67] With prompt intervention being the central and underlying tenet in the
evidential matrix and the paediatric experts saying that the bulk of the damage or
injury occurred in the 3 -hour period after plaintiff’s readmission when risk of foetal
injury was greatest, common sense suggests that the greater part of the i njury
occurred after the plaintiff’s readmission . For that reason I do not agree with the
submission by the defendant that causation has only been established to a point.

[68] Applying the principles referenced in the cases mentioned earlier, I find that
the plaintiff has established on a preponderance of probabilities that the substandard
treatment given to her amounts to negligent conduct on the part of the defendant’s
hospita l staff and that such conduct probably caused the injury suffered by her minor
child.

[69] The only remaining issue is the question of costs.

[70] The norm is that costs follow the result. In other words, the unsuccessful party
pays the costs of the successful part y.

[71] At the conclusion of argument a draft order was handed up on behalf of the
plaintiff. The order made provision for costs on scale C in respect of the fees of
counsel . No submissions were made in support thereof. The default scale must
apply.

[72] The defenda nt argued that the costs of the plaintiff’s experts who were not
qualified at trial should not be factored . This is a matter for debate at taxation and
can be dealt with by the taxing maste r in his/her discretion.

[73] Before concluding s omething must be said about the matter at the
commencement of the trial. It was certainly not plain sailing and necessitated a
lengthy adjournment on the morning of the first day to enable the plaintiff’s legal
team to attend to housekeeping matters pertaining to i ndices and annexures to
reports et cetera . Despite the adjournment to get things in order it was tardy and
irksome for material to have been handed up from the bar for incorporation among
the court papers and having at times to reconcile inconsistent pagin ation. Apart from
being a distraction it impedes the primary adjudicative function of the court.

[74] It is salutary to remind practitioners that court time is a valued resource in high
demand ; that efforts should be made for ensuring housekeeping matters are in order
beforehand – not only as a courtesy to the court but to an opponent as well – so that
a matter on the roll commences promptly at the appointed time.

[75] In the circumstances, I make th e following order:

1. The defendant is liable for all such damages as the plaintiff in her
representative capacity may prove arising from the negligent treatment of
the plaintiff and her minor child, H[...] , born on 17 September 2016 during
the plaintiff’s la bour at Frere Hospital, East London.

2. The quantification of the plaintiff’s claims for damages on behalf of the
minor H[...] is postponed sine die .

3. The defendant is ordered to pay the costs relating to the separated issue
of liability, including all reserve d costs, if any together with interest thereon
at the legal rate from a date 14 (fourteen) days after allocatur and/or
agreement to date of payment, which costs shall furthermore include:

3.1 The costs attendant upon obtaining the medical -legal reports and/or
addendum reports and/or joint minutes and addendum joint
minutes, if any .

3.2 The reservation fees, if any, together with the qualifying fees, if any,
of the plaintiff’s expert witnesses together with travelling costs and
accommodation costs, if any, in respect of whom notices in terms of
rule 36(9) (a) and (b) have been filed of record.

3.3 The costs of holding all pre -trial conferences between legal
representatives for both the plaintiff and the defendant, including
senior counsel’s fees in respect thereof .

3.4 The costs of the hearing from 12 to 15 August 2024 and on
4 October 2024, including counsel ’s day fee s.

3.5 The costs of preparing for consultations and trial.

3.6 The costs of drafting heads of argument.


____________________________
S RUGUNANAN
JUDGE OF THE HIGH COURT


Appearances:

For the Plaintiff: A D Schoeman SC , Rob Menzies & Associates Inc., c/o Huxtable
Attorneys, Makhanda (Ref: Mr Huxtable).

For the Defendant: R T Williams SC , Instructed by The State Attorney c/o Whitesides
Attorneys, Makhanda (Ref: Ms Asmal).

Dates heard: 12 – 15 August 2024.
Argument: 04 October 2024.
Date delivered: 23 January 2025.