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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION - GRAHAMSTOWN)  

         

         Case No: EL 876/2015

                    ECD 1676/2015

 

In the matter between:

 

ZOLEKA HAZEL SIWAYI                                                Plaintiff               

and

 

MEC FOR HEALTH, EASTERN CAPE PROVINCE           Defendant

 

JUDGMENT

 

MALUSI J:

[1]     This is an action for damages arising out of medical negligence by the defendant’s medical and nursing staff at Frere hospital on 20 March 2015. 

[2]     At the trial the parties agreed to proceed by way of a stated case.  It was further agreed between the parties that the medico-legal reports of five experts from both sides will be admitted as evidence.  In the event the content of any report was in contradiction of the stated case, the facts contained in the stated case will prevail, so it was agreed.

[3]     The evidence discloses that the plaintiff had a substantially uneventful pre-natal history.  On 18 March 2015 she presented at Mpilweni clinic, East London in the latent phase of labour.  She was instructed by the nursing staff to go home as there was no progress with labour.  On 20 March 2015 she went back to the clinic with a complaint of lower abdominal pain.  It was noted on the clinical notes that the contractions were not palpated.  The diagnosis of doubtful labour was made and she was instructed to go to Frere hospital.  She was allowed to go home to collect personal items in anticipation of hospital admission.    

[4]     On the same day the plaintiff was readmitted at the clinic at 20h15.  The diagnosis of ‘big baby and latent phase of labour’ was documented.  At 21h20 the nurses called Frere hospital to indicate that they needed to prepare for the plaintiff to deliver the baby by way of caesarean section as there was no progress with the labour. 

[5]     The plaintiff was admitted at Frere hospital at 23h20.  She was examined by a doctor at 23h50.  It was noted that she had been referred from Empilweni clinic with a history of carrying a big baby.  The plaintiff was at that stage 8cm dilated.  The doctor noted grade meconium liquor which was indicative of foetal distress.  Medication was administered to the plaintiff to slow down or suppress the labour as the operating theatre was busy.  The doctor also instructed that the plaintiff must be positioned on the side and an oxygen mask be placed on her until the operating theatre became available for a caesarean section.     

[6]     On 21 March 2015 at 00h30 it was documented that the plaintiff was fully dilated.  The plaintiff reported that she was told by the nursing staff to try and push her baby out at this stage.  The plaintiff further made a report that at about 03h00 the doctor returned with two student nurses and they opened her legs and pushed downwards on her stomach three times in an effort to get the baby to move into a position for delivery.  A heart rate monitor was placed over the plaintiff’s abdomen and it was reported to her that the baby was becoming fatigued.  The doctor and the nurses left the plaintiff on her bed.  They returned more than an hour later and begun pre-operative procedures as they stated that plaintiff was to be taken to theatre.     

[7]     The caesarean section commenced and the baby was delivered very distressed and taken to the neonatal surgery.  It was noted in the hospital records that at 04h30 on 21 March 2015 an alive male was delivered, ‘very floppy with an Apgar score of 5/10, 7/10 and 9/10’.  Again there was a meconium stained liquor noted.  The paediatrician noted a large cephalhaematoma on the right side of the head in a shocked infant.  The infant was later transferred to the intensive care unit.  The plaintiff reported that she was later informed by the doctor on duty that the baby’s skull had been fractured during labour.  She further informed the plaintiff that the baby was losing blood due to internal bleeding and a blood transfusion needed to be done.  The plaintiff reported that the infant’s head and body were swollen.  The infant died on 23 March 2015.  The plaintiff was discharged shortly thereafter.

[8]     Doctor Burchell and Doctor Shweni, the obstetricians for plaintiff and defendant respectively compiled a joint minute.  The experts agreed that the attempts by the medical and nursing staff at Frere hospital to continue attempting a vaginal delivery after an instruction from the doctor on duty for the plaintiff to deliver by caesarean section was negligent and substandard treatment.  In their opinion these attempts were likely to have caused the fracture of the infant’s skull.  The two experts further agreed that a delay of three hours from the time the plaintiff was fully dilated to the time of delivery was substandard and negligent.        

[9]     During the weeks after the plaintiff’s discharge from the hospital she was reported to be eating excessively, unable to sleep, experiencing severe sadness, being socially withdrawn, displayed irritability and had problems with concentration and memory.  When she returned to work two weeks after the funeral of the baby she could not cope.  She was unable to deal with queries regarding the baby from ordinary people which traumatised her.  She felt numb and shock during this period.   

[10]   During June 2016 when plaintiff consulted Dr Botha, the psychologist, she still experienced pain in her neck as a result of tension from stress.  She was taking anti-inflammatory medication to alleviate the symptoms.  She reported that in April 2016 she had consulted a physician due to pain on her right hip and leg which was diagnosed as being due to severe stress.    

[11]   The plaintiff had flashbacks and trauma intrusions which caused her difficulty in remembering things and sustain concentration.  This condition was prominent around the anniversary of the death of the infant.  It was accompanied by severe feelings of sadness.  The plaintiff reported that she forgets basic household activities and misplaces objects like keys, wallet etc.  It was necessary for her to follow a rigid routine and record information to function normally.

[12]   The plaintiff reported that she had difficulty in concentrating on tasks for prolonged periods of time and was prone to be distracted and ‘drowsy’.  She was reportedly making mistakes at work for months after the death of the infant.  When her supervisors enquired about the errors she had no recollection of the tasks.  She reported that she takes longer to complete tasks though there is some improvement.    

[13]   The plaintiff reported sensitivity within interpersonal context and avoids confrontation as she cannot deal with intense emotions.  She is no longer sociable as she was premorbidly.  She chooses not to be around people except for Sundays when she attends church.   She prefers to stay at home with her family and avoid other people as she is invariably asked about the death of the infant or the progress of this pending action.  The plaintiff found it very distressing to speak about the death resulting in difficulty sleeping due to intrusive thoughts.  She has a depressed feeling, low mood and poor self-esteem.  She has changes in her sleep pattern and diet.  The irritability persists presently and she has a decrease in libido.  She manifests a loss of interest in previously enjoyable activities such as listening to music and spending time with her friends.  Premorbidly she was a socially outgoing person but that has changed as she is presently socially withdrawn.    

[14]   It was reported that the plaintiff had no history of psychiatric illness nor is there any in her family.  Premorbidly she was a healthy and fit woman except for a chronic illness.  She had not experienced any major trauma prior to the incident which may have predisposed her to developing the current psychiatric symptomatology.

[15]   Dr R Botha and Ms N Zukelwa compiled a joint psychological minute.  The experts agreed that in their opinion the plaintiff evinces symptoms of major depressive disorder (MDD) and post-traumatic stress disorder (PTSD) following the traumatic loss of her baby.  Dr Botha stated that studies suggest that this particular comorbidity represents a trauma related phenotype.  Both experts agreed that the plaintiff has not yet made an adequate recovery.  They stated that longitudinal studies have demonstrated that in a normal grieving process grief declines over a period of two years after the pregnancy loss.  They agreed that residual symptoms of both MDD and PTSD continue to afflict the plaintiff and would require long term clinical management.  It was noted in the stated case that the plaintiff has not undertaken psychotherapeutic intervention at this stage.    

[16]   The plaintiff claimed damages under various heads.  The parties have settled some heads of damages and the plaintiff has withdrawn the claim for general damages in respect of the loss of love, togetherness and affection.  The court is required to determine the quantum in respect of general damages as a result of the pain and suffering associated with the emotional and psychological trauma the plaintiff suffered.   

[17]   The quantification of any claim for general damages is an exercise fraught with difficulty.  It is trite that each case must be decided on its own merits though guidance must be sought from precedent.  The plaintiff’s counsel persisted with a claim of damages in the sum of R900 000.00.  Regrettably, there was no proper motivation for the amount.   

[18]   Mr Malunga, who appeared on behalf of the defendant, referred the court to relevant comparable case law.  In Majiet v Santam Ltd[1]  the plaintiff was a mother of a nine year old boy who experienced emotional and psychological shock as a result of her coming upon the body of her son lying on the road shortly after he had been struck and killed by a motor vehicle.  The court considered all the relevant facts and awarded an amount of R35 000.00 in respect of general damages.  The adjusted amount presently is R120 000.00. 

[19]   In Lett & Another v The Minister of Safety & Security & Another[2], the plaintiffs were a married couple who claimed damages as a result of trauma suffered from witnessing their daughter’s wrongful shooting.  The court awarded the husband R100 000.00 and the wife R120 000.00 in 2011, which has an adjusted value of R180 00.00 in 2018.

[20]   In Kritzinger & Another v Road Accident Fund[3] the plaintiff was informed of a collision and discovered that his two daughters had been killed when he arrived at the scene.  He suffered from chronic bereavement, post traumatic disorder and major depressive disorder.  He was awarded R150 000.00 in March 2009, the adjusted value in 2018 is R220 000.00.

[21]   In Fortune v Road Accident Fund[4] a twenty seven year old security officer had been three months pregnant and the accident caused the foetus to abort some two weeks later, thereafter it caused her mental trauma and emotional anguish lasting for three months, with a feeling of loss, the plaintiff was on 29 Julye 2004 awarded an amount of R190 000.00, which has an adjusted value of R250 000.00 in 2018.

[22]   It appears to me that the plaintiff suffered more severe sequalae than the litigants in each of the cases considered.  The medical evidence indicates that she suffered lasting trauma, unresolved mourning, and a myriad of debilitating sequalae as stated above.  This clearly exacerbates her severe stress disorder and depression.  In my view taking into account all the factors in this matter it is reasonable and fair to award general damages in the amount of R250 000.00.  

[23]   In the result the following order will issue.

23.1  The defendant is held liable for general damages which the plaintiff suffered as a result of the negligent conduct of the defendant’s employees on 20 March 2015;

23.2  The defendant is ordered to pay to the plaintiff the following:

23.2.1        The sum of R15 717.44 as and for plaintiff’s past loss of earnings;

23.2.2        The sum of R10 179.72 for future medical expenses;

23.2.3        The sum of R250 000.00 in respect of the plaintiff’s general damages for pain and suffering.

 

23.3  The defendant shall pay the plaintiff’s costs of suit, such costs to be taxed or agreed, which costs shall include, but not be limited to;

23.3.1        The taxed or agreed fees and qualifying expenses of all the plaintiff’s expert witnesses listed hereunder, which includes all reasonable and necessary costs attached to the procurement of the expert reports, as well as other related costs, namely;

 

(i)          Dr H J Burchell;

(ii)         Ms N Zukelwa;

(iii)       Dr B Hulley.

 

 

T MALUSI

JUDGE OF THE HIGH COURT    

Appearances:

 

For the Plaintiff:                              Adv Maseti instructed by     

S Magobiane Attorneys

Office No 4, 15 Currie Street

Quigney

EAST LONDON

                       

For the Defendant:                         Adv Malunga instructed by

Office of the State Attorney

Ground Floor, Old Spoornet Building

                                                            EAST LONDON      

 

Heard on:                                       12 & 13 February 2018

 

Judgment delivered:                      1 November 2018

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