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[2020] ZASCA 169
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Member of the Executive Council for Health, Eastern Cape v Z M (576/2019) [2020] ZASCA 169 (14 December 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 576/2019
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE
APPELLANT
and
Z
M obo L
M
RESPONDENT
Neutral
citation:
The
Member of the Executive Council for Health, Eastern Cape v Z M obo L
M
(576/2019)
[2020]
ZASCA 169
(14 December 2020)
Bench:
PETSE DP, ZONDI and
NICHOLLS JJA and EKSTEEN and UNTERHLATER AJJA
Heard:
13 November 2020
Delivered:
This judgment was
handed down electronically by circulation to the parties'
representatives via email, publication on the Supreme
Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 14 December 2020.
Summary:
Action in delict –
acute profound brain injury during labour causing the child to suffer
from cerebral palsy – whether
the trial court could depart from
the expert opinion of the radiologist agreed to by the parties –
no basis found to depart
from the causal factors implicated in an
acute profound brain injury.
ORDER
On
appeal from
:
Eastern Cape Division of the High Court, Bhisho (Hartle J sitting as
court of first instance): judgment reported
sub
nom L v Member of the Executive Council for Health, Eastern Cape
[2019] ZAECBHC 7
(a) The appeal is
upheld.
(b) The order of the
high court is set aside and replaced by the following order:
‘
The
plaintiff’s claim is dismissed.’
JUDGMENT
Unterhalter
AJA (Petse DP, Zondi and Nicholls JJA, and Eksteen AJA concurring)
[1]
On 3 December 2005, the respondent, Ms M, gave birth to a son, L (the
child), at the Madwaleni Hospital. L was born with severe
brain
damage, as a result of which he suffers from cerebral palsy. Ms M
instituted an action against the appellant in which she
alleged that
the negligence of the staff at the hospital failed to prevent the
brain injury that occurred during her labour. That
injury was caused
by a lack of oxygen and blood flow to L’s brain. The technical
description of reduced brain oxygen is hypoxic
ischaemic
encephalopathy.
[2]
Ms M began to experience labour pains at 03h00 on 3 December 2005.
Together with her mother, Ms M went to the hospital. They
arrived at
about 07h00, and Ms M’s membranes ruptured. She was admitted to
the labour ward at about 08h00. There a nurse
performed a vaginal
examination, checked the foetal heart rate and informed Ms M that the
birth of her child was still far from
occurring, and that she should
wait in a separate room. There are different accounts as to what
Mpetshini was told in the course
of the day and what further
examinations took place. However, at 21h00 Ms M began to feel great
pain and started screaming. She
was then examined by a nurse to check
the position of the foetus and the nurse informed her that she would
give birth soon. A drip
was inserted. Ms M was attended upon by two
nurses. One of the important factual issues at trial was precisely
what these nurses
did during this final stage of labour. But it is
clear that this stage of her labour lasted some 60 minutes before the
child was
delivered. During this time, and while Ms M was pushing, so
too did a nurse push on her abdomen. How often, and with what amount
of force, was disputed. In addition, one of the nurses performed an
episiotomy. L was born at 22h00. He did not cry. A doctor was
called
and, upon investigation, it was determined that L had suffered a
severe brain injury during labour.
[3]
At the trial, two issues were agreed by the parties. First, that the
period in contention was the second stage of labour, though
the
parties were at odds, as I shall explain, as to how long that stage
endured. Second, the parties stated that the report of
Dr Pretorius,
an expert radiologist, and its addendum, was admitted into evidence
by agreement. Dr Pretorius considered an MRI
scan of L’s brain.
He concluded that the image indicated an acute profound hypoxic
ischemic event that occurred intrapartum.
[4]
The significance of this conclusion is an important matter. It was
explained, in the course of the trial, by the expert obstetrician
and
gynaecologist, Dr Buchmann, who testified on behalf of the appellant.
He testified that there is a distinction between an intrapartum
acute
profound brain injury (‘an acute profound injury’) and an
intrapartum prolonged partial brain injury (‘a
prolonged
partial injury’). An acute profound injury is severe, with
total or near-total asphyxia (deficient supply of oxygen);
it is of
short duration, and sudden onset, and generally occurs 30 minutes
before delivery. A prolonged partial injury is less
severe, with
partial asphyxia; it develops slowly over several hours; it is often
preceded by a deteriorating foetal heart rate
that gives a warning of
developing hypoxia, that is, lack of oxygen. Professor Buchmann
stated that an acute profound injury is
caused by a catastrophic
sentinel event, most likely, in the case of L, the event was the
compression of the umbilical cord. Dr
Pretorius identified the injury
suffered by L as an acute profound injury.
[5]
The expert called to testify on behalf of Ms M was Dr Ndjapa-Ndamkou.
He is also an obstetrician and gynaecologist. Dr Ndjapa-Ndamkou
readily recognised that he was not qualified to express an opinion as
to the conclusion reached by Dr Pretorius, since he is not
a
radiologist, and deference was thus warranted. While there are
passages of his testimony where Dr Ndjapa-Ndamkou appeared to
stray
from his area of expertise to suggest that there were features of the
case consistent with a prolonged partial injury, ultimately,
he
accepted that L suffered an acute profound injury.
[6]
The court below was not convinced. Hartle J considered that there
could be a ‘mixed injury pattern’,
[1]
connoting an injury pattern that has some of the characteristics of a
prolonged partial injury and some of the characteristics
of an acute
profound injury. This postulate was advanced for two reasons. First,
Hartle J’s ‘own recourse to literature
makes it plain
that mixed patterns do exist and that when energy substrates are
depleted in partial prolonged asphyxia …
there can be a
further assault in the form of near total collapse’.
[2]
Second, Hartle J considered that the absence of reasons offered by Dr
Pretorius for his opinion was unhelpful and did not exclude
the
possibility of a mixed injury pattern.
[7]
Hartle J proceeded to consider the evidence led at the trial. Hartle
J criticised the evidence of Professor Buchmann. In particular,
Hartle J considered Professor Buchmann’s approach to be biased
as to how fundal pressure (that is, applying pressure by pushing
downward on the mother’s uterus during delivery) was conducive
to cerebral palsy; that his denial of high risk factors that
had
occurred during Ms M’s labour was unwarranted; and that his
unwillingness to make concessions that deviated from his
view that
this was an unforeseeable acute profound injury lent support to an
assessment of Professor Buchmann’s testimony
as lacking
objectivity. Hartle J considered Dr Ndjapa-Ndamkou’s evidence
to be more probable and credible. The central finding
is this:
‘
Each
of the risk factors highlighted by Dr Ndjapa-Ndamkou in a cascading
manner point to a causal connection between the inappropriate
management of the plaintiff’s labour, including ( more
especially) the injudicious and untimely application of the fundal
pressure in a situation where the child was already in a compromised
position, and the superimposed acute profound hypoxic result.’
[3]
Consequently,
the high court held that the appellant was liable in delict to the
respondent. Aggrieved by this result, the
appellant appeals
against that order with the leave of the high court.
[8]
The appellant submitted that the court below fell into error. There
was no basis to depart from the finding of Dr Pretorius
that this was
a case of an acute profound injury. Such an injury was properly
characterised as a catastrophic sentinel event by
Professor Buchmann.
It was an unforeseeable injury, occurring in the final stage of
labour, in all likelihood less than 30 minutes
before delivery; and,
in this case, it was mostly likely the complete occlusion of the
umbilical cord for a period of 15 to 20
minutes that caused the
injury. Neither the length of the labour, nor the recognised failure
by the hospital staff properly to
monitor and inspect the progress of
the labour, nor the rupture of Ms M’s membranes, nor the
application of fundal pressure,
was causally implicated in the injury
suffered by L. There was also no warrant, so it was contended, for
the court below to find
that Professor Buchman gave biased
testimony.
[4]
Indeed, it was
submitted on behalf of the appellant that the only bias that may be
found was exhibited by the court below itself.
[9]
Counsel for Ms M acknowledged the agreement made concerning the
evidence of Dr Pretorius and the concessions made by Dr
Ndjapa-Ndamkou,
in particular, that L had sustained an acute profound
injury. Nevertheless, it was contended that upon a reasonable
extrapolation
as to the length of Ms M’s labour, there may have
been intermittent hypoxia (oxygen deprivation), compromising the
ability
of the foetus to recover. Hypoxia of this kind could have
been detected had proper foetal monitoring been done, which it was
not,
and steps could then have been taken to avoid serious injury,
for example by performing a timely caesarean section. This, together
with the negligent manner in which fundal pressure was administered,
resulted in the acute profound injury.
[10]
The first issue to be determined is whether the court below was
justified in departing from the opinion of Dr Pretorius, that
L had
suffered an acute profound injury. It will be recalled that Hartle J
did so on the basis of her own recourse to the literature
and the
absence of reasons for the opinion expressed by Dr Pretorius.
[11]
This judicial assiduity strays beyond permissible bounds. The trial
court will ordinarily consider the assistance given by
an expert’s
evidence and come to its own conclusions. But here the parties had
agreed to accept the conclusion reached by
Dr Pretorius and ran the
trial on this basis. In these circumstances, the trial court should
exercise very great caution. If Hartle
J considered that Dr
Pretorius’s conclusion was questionable, it was essential to
give notice of this to the parties, as
soon as possible, in the
course of the trial, in turn securing the attendance of Dr Pretorius
to explain his position. Absent this,
the trial court’s
judgment is not the place to reject Dr Pretorius’s opinion, nor
to introduce a theory of injury at
variance with the parties’
agreed position.
[12]
Furthermore, a judge’s independent recourse to literature
should also be undertaken with circumspection. The admissibility
of
expert evidence is predicated upon the special knowledge and skill of
the expert to form an opinion that the judge, unassisted,
cannot. A
judge with an interest in a field of expert knowledge should not
ordinarily undertake an independent search for relevant
literature.
And if it is done for some special reason, the yield of such
explorations must be put to the parties and their experts.
To do
otherwise leaves the judge open to the very criticism made in this
case by the appellant: that the court below had recourse
to
undisclosed literature to call into question an agreed conclusion
that formed the basis upon which the trial was run - that
L suffered
an acute profound injury.
[13]
The high court was not willing to accept the opinion of Dr Pretorius
and characterised the injury as a ‘mixed injury
pattern’.
That was not a position available to the trial court. Without notice
to the parties, the literature reviewed by
the learned judge, not
introduced into evidence, could not be used to justify a judicial
characterisation of the injury. Nor could
the learned judge safely
reach any such characterisation, given the parties’ acceptance
of the opinion of Dr Pretorius. Doubts
as to that opinion required of
Hartle J that she take up the matter with the parties and enjoy the
benefit of testing her scepticism
by securing the assistance of Dr
Pretorius. This is not simply a question of fairness. To make a
finding on a matter that requires
an expert opinion, and to do so in
contradiction of the opinion of an acknowledged expert, agreed upon
by the parties, without
testing the matter with Dr Pretorius, was to
run a risk of error that cannot be allowed to stand.
[14]
It follows that the matter must be considered from the agreed premise
that the parties adopted at the trial. That premise was
that L
suffered an acute profound injury. The consequences of accepting this
premise are far reaching. As I have explained, the
nature of an acute
profound injury and a prolonged partial injury are different. Those
differences were set out by Dr Buchmann.
Under cross examination,
Dr Ndjapa-Ndamkou agreed that this was a case of an acute profound
injury and he concurred with the
proposition that there was no
indication of a prolonged partial injury. Further, he agreed that an
acute profound injury would
require a complete occlusion of the
umbilical cord for a period between 15 and 20 minutes.
[15]
What emerges from the differences between the two types of injury is
that their causes are also distinct. As their descriptions
make
plain, an acute profound injury results from a catastrophic event, as
Professor Buchmann explained. A prolonged partial injury
results from
cumulative deprivations of oxygen over time. The injury develops over
hours and it may be observed by a deteriorating
foetal heart rate.
Once this distinction is accepted, then very different time periods
and causes are implicated for the purposes
of understanding what gave
rise to the injury suffered by L.
[16]
Precisely because the court below appreciated that the distinctive
nature of an acute profound injury excluded from consideration
aspects of the negligent treatment given to Ms M, the court
questioned the conceptual distinction between the two types of injury
and adopted the notion of a mixed injury pattern. This permitted the
court below to consider the cumulative risks borne by Ms M
of the
rupture of her membranes, the length of her labour, the failure to
undertake proper monitoring, and the fundal pressure
applied to her.
But without the premise of a mixed injury pattern, what of these
cumulative risks has any bearing upon the catastrophic
event that
caused the acute profound injury?
[17]
Counsel for Ms M sought to resurrect the case on this score, even
accepting that this was a case of an acute profound injury.
He did so
in two ways. First, he contended that the active phase of Ms M’s
labour endured for considerably longer than Professor
Buchmann
allowed. There may have been intermittent hypoxia, over a
considerable period of time, which would have weakened the foetus.
The nurses failed to do proper monitoring to determine whether this
risk was present. In addition, the rupture of the membranes
may have
led to the reduction of amniotic fluid, and the added risk of cord
compression. Taken together with the fundal pressure
that was
applied, the acute profound injury was a probable consequence. I
shall refer to this as the cumulative risk argument.
[18]
Second, counsel contended that the duration of the fundal pressure
was in itself a sufficient explanation of the acute profound
injury.
The nurses applied this pressure in a manner that was both wrongful
and negligent and hence the liability of the appellant
was proven. I
shall refer to this as the excessive fundal pressure argument.
[19]
The cumulative risk argument rests on the factual premise that the
active phase of labour was lengthy which gave rise to risks,
undetected by the nurses responsible for Ms M, that cumulatively
contributed to the acute profound injury suffered by L.
[20]
It was argued that this factual premise is supported by the evidence
led at the trial. Counsel relied upon the evidence of
Dr
Ndjapa-Ndamkou. He testified that, during his consultation with Ms M,
she had told him that a nurse had informed her at 13h00
that she
would give birth at 16h00. If this was what a nurse believed at the
time, it gives rise to the possibility that Ms M entered
the active
phase of her labour in the afternoon of 3 December 2005. Given the
time of L’s birth at 22h00, Ms M would have
been in the active
phase of her labour for a lengthy time, with attendant risks.
[21]
The difficulty with this evidence is that Ms M, who testified both
before and after Dr Ndjapa-Ndamkou, made no mention of what
the nurse
had said to her. This is an important omission. What Dr
Ndjapa-Ndamkou recounted of his consultation is hearsay. The
difficulty is not simply technical. Absent some cogent evidence that
what was allegedly said by the nurse is supported by some
other
evidence that Ms M had entered the active phase of her labour during
the afternoon, the hearsay evidence, even if considered,
carries very
little weight.
[22]
The supporting evidence relied upon was this. Dr Ndjapa-Ndamkou
placed some reliance on the guidance that dilation in the latent
phase of labour takes places at 1-2 cm per hour. An extrapolation
using this guidance might suggest that Ms M would have given
birth at
16h00, and this coincided with what she reported to Dr Ndjapa-Ndamkou
the nurse had indicated to her. This was also consistent
with the
evidence of Ms M that at 13h00 she was feeling such pain that it did
not permit her to lie on the bed until the contractions
abated. Given
when it was that the birth in fact occurred, Ms M endured a long
active phase of labour that could have contributed
to the risk of
foetal distress.
[23]
The difficulty with this evidence is that it rests upon the
assumption that the progress of Ms M’s labour followed the
course of the guidance. There are no records as to the progress of
her labour. There was some evidence of an examination of Ms
M at
13h00, though this was not confirmed in the testimony of Ms M. There
was no evidence given as to what the examination revealed.
Professor
Buchmann testified that there are very great variations as to the
rate of dilation between women, and there is thus little
to be learnt
from the extrapolation exercise relied upon by Dr Ndjapa-Ndamkou.
[24]
Absent some direct evidence as to the course of Ms M’s labour,
the sparse details given by Ms M and the speculative generalisations
offered by Dr Ndjapa-Ndamkou do not provide evidence of sufficient
weight to support the nurse’s estimate of 16h00, even
if made,
as being a plausible time at which the birth might have been expected
to take place.
[25]
What the evidence does establish is that Ms M cried out in pain at
21h00. She was then taken to the labour ward, a drip inserted,
and
she was attended upon by two midwives. Fundal pressure was applied by
one of the midwives. There was some difficulty in the
birth taking
place. An episiotomy was performed, and L was born at 22h00.
[26]
Without clear evidence that there was a long period of active labour
that might have compromised the foetus and thereby contributed,
in
some way, to the injury suffered by L, there is no factual basis for
the cumulative risk argument. Mere supposition will not
suffice.
[27]
The cumulative risk argument flounders for another reason. Professor
Buchmann was very clear as to the nature of an acute profound
injury.
It is of short duration, and sudden onset, and generally occurs 30
minutes before delivery. In the evocative language of
Professor
Buchmann, it is caused by a catastrophic sentinel event. Dr
Ndjapa-Ndamkou was constrained to accept this.
[28]
The efforts by the court below to characterise the injury as being a
mixed injury pattern cannot be supported on the evidence
before the
court. Dr Ndjapa-Ndamkou’s evidence was at odds with itself. He
accepted that this was a case of an acute profound
injury, yet he
sought to implicate features of the case that are consistent with a
prolonged partial injury. In particular, his
efforts to suggest that
there was a prolonged labour was the basis for suggesting that
asphyxia might have developed slowly over
several hours. But that is
the very hallmark of a prolonged partial injury. Precisely what Dr
Pretorius said it was not.
[29]
There is simply no adequate basis upon which the factual evidence and
a proper appreciation of the expert evidence supports
the cumulative
risk argument.
[30]
I turn to the excessive fundal pressure argument. The issue here is
well defined: could the midwife have applied such excessive
fundal
pressure so as to cause the catastrophic sentinel event that so
grievously injured L?
[31]
Professor Buchmann’s evidence was this. An acute profound event
represents a complete shut-off of blood flow to the brain.
After 10
minutes, brain damage starts; and after 25 minutes, most of the brain
is damaged. Dr Ndjapa-Ndamkou was in agreement that
an acute profound
event would mean a complete occlusion of the cord for a period of
between 15 and 20 minutes.
[32]
When Ms M first gave her evidence, she explained that after 21h00 she
was taken to the labour ward. There, in the course of
her labour, one
of the midwives pressed on the top side of her abdomen to assist her,
as Ms M was pushing. Dr Ndjapa-Ndamkou referenced
in his report that
he had been told by Ms M that excessive forceful pressure was
applied. At trial, when this evidence was sought
to be led, counsel
for the appellant objected on the basis that the evidence was
hearsay. This led to the recall of Ms M. Upon
her recall, Ms M’s
evidence was that the midwife applied hard pressure to her abdomen
and slapped Ms M on her right flank.
The duration of this pressure
was 5 minutes on and 5 minutes off (the 5/5 regime). Under
cross-examination, when asked how Ms M
could recall this timing so
long after the event and given the pain of childbirth, Ms M reported
that she had heard that the 5/5
regime was being applied from the
midwives. Ms M also recalled that the 5/5 regime was applied three
times before the baby was
delivered.
[33]
The appellant submitted that the evidence of hard pressure and the
5/5 regime should not be believed. It did not figure when
first Ms M
gave evidence, and it was implausible that Ms M could remember what
she claims the midwives said, given that she was
in the final stage
of labour. Certainly, the trial court had some difficulty in
believing this evidence, which was described as
‘bizarre’.
[5]
[34]
It is unnecessary to express a firm view on this aspect of the
matter. Here, too, Professor Buchmann’s evidence is clear
and
not refuted by Dr Ndjapa-Ndamkou. An acute profound injury requires a
complete cut-off of blood flow in excess of 10 minutes
to start
causing significant brain injury. The account given of the 5/5 regime
does not do this. Professor Buchmann considered
that this fundal
pressure could not have caused the acute profound injury and he was
sceptical that any midwife was capable of
applying significant
pressure for 5 minutes. Dr Ndjapa-Ndamkou, while accepting that
complete occlusion was required, nevertheless
maintained that the 5/5
regime might have compromised the recovery of the foetus. Here, too,
the evidence of Dr Ndjapa-Ndamkou
appears to be internally
inconsistent. If the type of injury occurring in cases of acute
profound injury requires a complete cut-off
of blood flow in excess
of 10 minutes, then it is unclear how pressure that does less than
this, on three occasions, compromised
recovery so as to bring about
the same result.
[35]
For these reasons, the excessive fundal pressure argument cannot be
sustained.
[36]
Once this is so, the following conclusions follow. First, Dr
Pretorius had determined that the injury suffered by L was an
acute
profound injury. Second, an acute profound injury, as Professor
Buchmann explained, with the ultimate concurrence of Dr
Ndjapa-Ndamkou, was a catastrophic sentinel event of short duration
and sudden onset, occurring in all likelihood 30 minutes before
the
birth. Third, what was done by the nursing staff in the last hour of
Ms M’s labour was not causally implicated in the
acute profound
injury suffered by L. Fourth, there is neither sufficient evidence
nor a defensible basis on the expert evidence
to find that the risks
arising from a lengthy period of labour occurred in this case. Even
if they had, these risks were not causally
operative in bringing
about the brain injury suffered by L.
[37]
It follows that the appeal must succeed.
[38]
A few final observations are warranted.
[39]
First, Professor Buchmann’s opinions were clearly stated and
firmly held. I can discern no taint of bias in the manner
in which
Professor Buchmann defended his position. The court below was not
justified in attributing bias to Professor Buchmann.
Quite the
contrary, his opinions have been of considerable assistance in
determining this appeal. A court may decide that an expert
opinion is
incorrect, but a court should be slow to attribute bias to an expert
of high standing because of the conviction with
which the expert
defends his opinions.
[40]
Second, counsel for the appellant submitted that the court below
exhibited bias. In the light of the conclusion to which I
have come,
there is no need to traverse the detail of this submission. What is
at stake in a trial of the kind before Hartle J
could not be of
greater consequence. In these circumstances, it is of great
importance that counsel and the court place a premium
upon the
dignity and reciprocal respect that allows courts to determine
difficult cases.
[41]
Third, counsel for the appellant made it plain that in the event that
the appellant prevailed in the appeal, no costs were
sought, either
in the appeal or in respect of the trial. This was a proper stance to
adopt.
[42]
The following order is made:
(a) The appeal is
upheld.
(b) The order of the
high court is set aside and replaced by the following order:
‘
The
plaintiff’s claim is dismissed.’
________________
D N Unterhalter
Acting
Judge of Appeal
APPEARANCES
For
appellant: P de Bruyn SC (with
him N D Ngadlela)
Instructed
by: State Attorney, East London
State
Attorney, Bloemfontein
For
respondent: D Brown (with him T Mduba)
Instructed
by: Dudula Yandis
Attorneys, Johannesburg
[1]
L v Member of the
Executive Council for Health, Eastern Cape
[2018]
ZAECBHC 7, especially para 121.
[2]
Ibid para 69.
[3]
Ibid para 122.
[4]
Ibid para 114.
[5]
L
(above fn 1) para 87.