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 LOCAL DIVISION, MTHATHA)
(FULL COURT)

Case No. 3651/15

 In the matter between:
THE MEMBER OF EXECUTIVE COUNCIL FOR HEALTH, 
EASTERN CAPE							APPELLANT

and

Y[…] N[….] obo E[…] N[….]					RESPONDENT

JUDGEMENT

DUKADA AJ:

INTRODUCTION

[1]	Litigation relating to spastic quadriplegic cerebral palsy arising out of negligent care and treatment in public health institutions is prevalent in this area of jurisdiction. This is an appeal against the judgment of the court a quo finding the Appellant ("the Defendant") vicariously liable to compensate the Respondent ("Plaintiff ') hundred percent of damages proved as a result of negligent  care and treatment by nurses at Sipetu Hospital. The court a quo also ordered the Defendant to pay Plaintiffs costs together with the qualifying costs of  the experts. The Plaintiff is opposing the appeal by the Defendant.

[2]	It is common cause that on 31st December 2009 the Plaintiff visited Sipetu Hospital to deliver E[…]. It is also common cause that on 1st January 2010 the Plaintiff delivered E[…], but her complaint  is that the medical  personnel at the hospital were negligent in treating the Plaintiff and E[…], such negligence resulted in asphyxia which has now resulted in E[…] suffering a permanent cerebral palsy. It was the contention of the Plaintiff  in the court  a quo that the negligence of the medical personnel at Sipetu Hospital caused E[…] to have Hypoxic lschemic injuries ("HI") as a result  of being deprived of oxygen whilst in utero.

THE PLEADINGS

[3]	In the summons, the Plaintiff averred that as a result of negligence of the employees of the Defendant at the hospital, E[…] is suffering from:

(a)	Infantile epilepsy;

(b)	Developmental delay; and

(c)	Hypoxic cerebral palsy.

[4]	Inter alia, the Plaintiff raised before the court a quo the following grounds of negligence against the medical personnel of the hospital, namely:

(a)	"he/she/they failed to monitor the plaintiff and her unborn foetus, either properly or sufficiently regularly;"

(b)	"he/she/they failed to implement appropriate treatment or monitoring modalities in respect of the plaintiff and her foetus;"

(c)	"he/she/they failed to discern or to prevent or to discern the onset of the foetal distress and/or hypoxia in the plaintiff's foetus;"

(d)	"he/she/they failed to deliver the plaintiff's child timeously and he/or she or they failed to expedite delivery when this was medically advised;"

(e)	"he/she/they permitted the plaintiff's labour to be extended beyond  a point where the delivery of the plaintiff's foetus became medically advised and necessary;"

(f)	"he/she/they failed to prevent the onset of foetal distress and/or hypoxic ischemic encephalopathy, when he/she/they could and should have done so ".

[5]	The Plaintiff further averred in the summons that as a result of the aforesaid breach of the legal duty referred to above, E[…]:

"16.1 experienced pain, suffering and discomfort and will continue to experience pain, suffering and discomfort in future as a result of the permanent and pronounced hypoxic cerebral palsy, developmental delay and infantile epilepsy;

16.2	underwent hospital medical and related treatment and will undergo such treatment in future, the details of which are at this stage unclear;

16.3	required and will require various modalities on therapy, special adaptive aids and advises, permanent and continuous care, the details of which are at this stage unclear;

16.4	experienced loss of the amenities of life and  will  experience such a loss in future as would be experienced by a person of the same age and status and E[…] who suffered the same condition as was suffered by her, particularly the complete inability to function independently and to enjoy the freedom of independent and unrestricted mobility, the permanent lack of meaningful privacy, social interaction and communication parenthood, living and growing old with a loved one;

16.5	experienced a permanent and total disability and will experience such disability in future;

16.6	will experience a loss of earning capacity  in future as a result of a permanent and total inability to generate any meaningful income;

166 experienced severe  psychological  or  psychiatric  shock  and trauma and will continuously experience such trauma in future; and

16.7	is permanently disfigured as a result of his permanent and pronounced severe cerebral palsy."

[6]	The Defendant denied any negligence on the part of her employees.

Alternatively, the Defendant averred that "... there is no causal link between the damages allegedly suffered by the plaintiff and the alleged medical conduct of the medical personnel at Sipetu Hospital."

[7]	Significantly,  before  the  court  a  quo,  the  Defendant  vigorously  denied  that E[…] suffered the HI injury whilst at the hospital. Counsel for the Defendant argued valiantly that E[…] suffered the HI injury after she had left the hospital. E[…] was a normal baby after birth and this was manifested by Apgar scores which were impressive i.e 8/10 in the first minute and 10/10 after five minutes.

[8]	However in this court the Defendant has changed her defence significantly.  In paragraph 33 of the Defendant's main heads of argument Defendants counsel state:

"33. Defendant accepts the Learned Judge's finding that E[…] suffered her injury intrapartum, and that E[…] was not delivered a normal baby girl as deposed to by the nurses who testified on behalf of Defendant. However, it is Defendant's case that the Learned Judge failed to holistically read and evaluate the evidence, as she, with respect was supposed to do."

[9]	Secondly, in the court a quo the Defendant repudiated the agreement between Professor Van Toorn and Dr Kara as set out in the joint minute. The agreement between the two experts was:

"1. E[…] has a mixed type of  cerebral  palsy  (GMFCSV)  with  severe global developmental delay and cerebral  visual impairment.

2.	There is reasonable merit in this case to consider intrapartum hypoxic ischemic injury as the cause of the cerebral palsy as the history is suggestive of hypoxic  ischemic encephalopathy and the clinical  presentation  does  not  suggest  any  of  the  other  likely causes of cerebral palsy.

3.		Supporting an intrapartum insult is the MRI findings, type of cerebral palsy and absence of growth restriction as well as the mother's description of the baby after birth.

4.	We defer to the obstetric experts as to whether negligence occurred in the monitoring and management of labour." (My emphasis)

ISSUES BEFORE THE COURT A QUO

[10]	    Surprisingly,  the Defendant  has changed  her  defence  in this  court.  She now concedes that E[…] was not born normal and the HI injuries occurred during the intrapartum stage. However what the Defendant now contends is that there was acute profound HIE injury and this injury occurred suddenly and was not foreseeable.  Therefore, nothing could have been done by the employees of the Defendant to change the outcome of delivery of E[…] by the  Plaintiff. Counsel for the Defendant seeks to make a distinction between the acute profound injury and partial profound injury. His argument is that a partial profound injury occurs over hours whereas an acute profound injury is sudden and unforeseeable.

FINDINGS OF THE COURT A QUO

[11]	The court a quo made the following findings to the evidence presented before it, namely:

(a)	The two nurses (Sr Jafta and Sr Ludidi) called by the Defendant were adamant that the monitoring of the Plaintiff was done in accordance with the accepted recommendations yet there is no record that the foetal heartrate was monitored from 03h00 up to the time of delivery;

(b)	The Plaintiff contradicted herself on certain issues, i.e the number of nurses who attended her, initially she indicated that they were three and later under cross-examination that they were two;

(c)	That she was told that the baby had fits and later indicated that she heard nurses stating that the baby had fits; and

(d)	that when she was in her lying position with a bulging tummy she was able to see the head of E[…] protruding is improbable

[12]	However, the court a quo found that the contradictions and improbabilities in the evidence of the Plaintiff were not material and Plaintiff was generally a good witness.

[13]	Both Jafta and Ludidi were pathetic witnesses who contradicted themselves in many material respects. For example:

(a)	The partograph reflected a different picture from the evidence of Jafta and Ludidi. The foetal heartrate ("FHR") was last monitored at 02h30 according to the partograph;

(b)	Both Jafta and Ludidi indicated that the FHR was monitored every 30 minutes but there is no such record in the partograph;

(c)	It is difficult to understand how Jafta and Ludidi remembered the treatment of the Plaintiff without any record;

(d)	Jafta's remembering of the Plaintiff was improbable, especially since both Jafta and Ludidi claimed that they were very busy on the day in question; and the delivery of E[…] was normal;

(e)	The two judgments relied upon by the Defendant are distinguishable from this matter; and

(f)	Negligence and causation were proved by the Plaintiff.

THE ISSUES ON APPEAL

[14]	As already stated, in this court the Defendant has abandoned her defence in the court a quo , that is, E[…] suffered HI injuries after she had left the hospital. She is now contending that the acute profound HI injuries E[…] suffered were sudden and unforeseeable to an extent that nothing could have been done by the medical personnel at the hospital to change  the outcome.  The question is whether it is permissible for the Defendant to raise a new defence on appeal. It is now trite law that an appeal court will generally decline to entertain a new defence unless:

(i)	the point is covered by the pleadings;

(ii)	there would be no unfairness to the other party;

(iii)	the facts are common cause and well-nigh incontrovertible; and

(iv)	there is no ground for thinking that other or further evidence would have been produced that could have affected the point.

[15]	In Kerksay Investments (Pty) Ltd v Randburg Town Council Van Dijkhorst J

said:

"They acknowledge the salutary principle that unless there has been a full investigation of a matter falling outside the pleadings and there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the parties are held to the issues pleaded. In the absence of certainty that such dispute has been properly investigated and ventilated, injustice might easily follow if this rule is not strictly adhered to."

[16]	Counsel for the Plaintiff has argued that the submissions made by the Defendant relating to the timing and occurrence of acute profound (injuries) in so far as it has not been testified to in the court a quo are inadmissible. He argued that "there was no alternative plea that there was an acute profound injury which would have had the effect that there was nothing that the staff could have done to avoid the bad outcome. Not only was it not pleaded, this defence was not pursued in evidence."

[17]	As I understand the entire evidence in this matter, failure by the nurses to monitor the foetal heartrate dominated the proceedings and the findings of the court a quo, both on negligence and causation, were based on this issue. In any event, both Professor Van Toorn and Dr Ibrahim for the Plaintiff gave clear and unambiguous evidence that if the nurses had monitored the foetus' heartrate, on the probabilities, there would have been warnings that the foetus is not well long enough before the acute profound damage for the staff to have taken steps to avert the disaster.

[18]	Van Toorn said at page 100:
	
"2.	Mr Wessels - now would you  get a,  if you monitor  properly,  would you get a warning that things are not going as they should?

Witness, Yes, we know from experience My Lady and from the literature that the foetus' heartrate was quite sensitive to change in oxygen is if there is a lack of oxygen the initial response was that - you get what I called the foetal tachycardia, so that the foetal  heartrate becomes higher and then with time you get what is called deceleration, so the heartrate starts to deep after its contraction. And we call that deceleration, and that is something we monitor. And then after  deceleration,  after  deceleration  eventually  exhaustion occurs, and the decompensation occurs. So, there is -  there is usually time for intervention." (My emphasis)

[19]	From page 898 Professor Van Toorn describes the mechanism of damage. He says at line 9 and further:

"So first we get what is called an insult... so an insult is when there is compromise and the foetal environment becomes sub-optimal But an insult does not always cause injury because the baby can withstand an insult. What then happens is when the baby tried to withstand that, and  at the same stage a baby becomes exhausted and tired, what then happens is the baby wants to protect the middle part of the brain. So, what it does, it takes blood, it shunts blood, diverts blood from the outer part to the middle part.

Court: Into the middle part?

Witness: To try and protect the core and eventually when  the  baby cannot do that anymore there is total decompensation, then the core of the brain does not get enough blood anymore then you get  damage to the core of the brain. Now what we are seeing with acute total is that this must have happened because at some stage the baby could not shunt anymore and we have that the middle part, the central core is now being damaged.    Now  this- so  this  is  after  insult that happens  and  with the Insult you get heartrate changes and at   some stage you get decompensation that occurs when there is no more blood going to the brain and when that happens usually within 15 to 40 minutes  you end up with then irreversible damage. And this is what we are seeing on this scan here, the mechanism of injury is that the baby was in trouble and then obviously he tried to (intervention).

Court: Protect?
Witness: Compensate as some stage. It could be because the contractions were so severe and so prolonged, blood flow to the brain was compromised, there was no blood flow, there was no blood to shunt from the outer core anymore and that is why we have the damage to the middle part of the brain and this is what we are seeing on the baby's scan the acute total.

Court: Acute total?

Mr Wessels: now would you get a,  if you monitor properly would you  get a warning that things are not going as it should?

Witness: ... after deceleration eventually exhaustion occurs, and decompensation  occurs.     So,  there   is  -    there   is   usually   time for intervention.  ...  But in this case, we could not find a sentinel event     and none of these are noted, so in my view and it is also the view of Dr Ibrahim, that by listening to the foetal heartrate you are able to identify a foetus in distress and you are able to offer intervention, you can expedite the delivery to prevent (indistinct) from happening."(My emphasis)

[20	 Significantly, Dr Van Toorn's evidence was not disputed on this issue. The only attack on his evidence was that a child was not born a normal child and that an insult cannot be connected to the delivery process. Professor Van Toorn denied this. As the evidence on Professor Van Toorn on the issue of acute profound damage was not disputed, it becomes unassailable now on appeal.

[21]	The evidence of Dr Ibrahim was the same as that of Professor Van Toon.  At page 1094, lines 7 - 25 Dr Ibrahim says:

"In other words, it worsens foetal distress if it is present, or if it is not present it has the potential to cause foetal distress and that is the reason why foetal heartrate monitoring  is crucial during this time.   This failure to access  the  foetal  heartrate  during  the  latter  part  of  the  first  stage of labour  and the entire second  stage  of labour was  a  serious  breach  of duty  on the  part of the nursing  and my comment on that is  that if  foetal distress occurred. it would mostly probably not have been diagnosed because of a failure to monitor the foetal heartrate according to the recommended  guidelines  on intrapartum care. On the other hand. if foetal heartrate monitoring were carried out satisfactorily, it is highly likely that foetal distress  would  have been detected  early  enough  to  enable urgent delivery of the baby. which would have probably ensured the  birth of a healthy birth without hypoxic brain injury." (My emphasis)

[22]	Further at 1099, lines 20 and further:

"So the heartbeat is a reflection of what is happening in the brain and when there are minor abnormalities of the heartbeat, usually distress­ unless there is some catastrophic effect, usually distress in the baby's gradual process because healthy babies have a reserve and they will become distressed as the reserve is depleted babies show certain signs on the heartbeat which are not really signs of a baby that is seriously ill, but there are warning signs and those warning signs on in- usually they go for a while.  ...  but generally  in most  labours, the warning  signs they involve over a period of hours and if no attention is given to  these warning signs then further deterioration takes place and that  deterioration can takes place over 30 minutes, an hour, an hour and  a half again depending on at what point the warning signs were interpreted as being sinister. So,  with foetal heartrate monitoring, if it  is  done correctly  and  if  it  is  interpreted  correctly,  and  the  interpretation  is not difficult, then it gives the birth attendant ample opportunity to decide what to do." (My emphasis)

[23]	Van Toorn's and Ibrahim's evidence was not disputed on this issue. If it  had been Defendant's case that there would not have been sufficient warning, there was an onus of rebuttal on the Defendant to lead such evidence (apart from pleading it).

[24]	It will be observed that the issue of acute profound damage was dealt with by Professor Van Toorn and Dr Ibrahim in their respective evidence. Counsel for the Defendant never cross-examined the two expert witnesses on this issue but is now raising before this court for the first time. Obviously, such an approach is contrary to the decisions in Donnelly v Barclays National Bank Ltd (supra) and Kerksay Investments (Pty) Ltd v Randburg Town Council (supra) referred to above. Therefore, there can be no basis for this court to come to a conclusion that the court a quo erred in anyway in the absence of evidence from the Defendant regarding what she is now contending.   Succinctly, the evidence of Van Toorn and Ibrahim is that there was ample time for intervention in this case even before the onset of the acute profound injury and Endinalo could have  been delivered as a normal baby.

THE LAW

[25] 	The court a quo has dealt with the law relating to this appeal. In Oppelt v Head: Health, Department of Health, Provincial Administration: Western Cape at para [71] the Constitutional Court held:

"In simple terms, negligence refers to the blameworthy conduct of a person who has acted unlawfully. In respect of medical negligence, the question is how a reasonable medical practitioner in the position of the defendant would have acted in the particular circumstances.

[26]	 It is not disputed that the heartrate of E[…] was last listened or  heard  at 02h30 and then not before, during and after a contraction as was required in terms of the Guidelines for Maternity Care in South Africa. The FHR was not monitored throughout during the period from 3h00 until delivery.  Therefore, failure by the nurses to monitor the Plaintiff and the foetus according to the Guidelines for Maternity care in South Africa and to take the necessary action when the action line was crossed shows overwhelmingly that they were negligent.

[27]     It  is denied that E[…]'s injury  was not foreseeable.   Dr Ibrahim  stated  as follows:

"The failure to implement appropriate levels of foetal monitoring and to diagnose early signs of foetal distress and to intervene promptly as demonstrated in this case is a notorious cause of preventable intrapartum asphyxia, HIE, cerebral palsy and perinatal death in South Africa and elsewhere in the world. Foetal monitoring is therefore at the very core of labour management and its importance is emphasised at all level of obstetric and midwifery training but the omission of basic foetal heartrate monitoring in Ms Nohiya's labour is omission of one of the essential aspects of midwifery can and the potential consequences for the foetus is common knowledge to all labour ward personnel. The hospital staff ought to have known this and they ought to have managed this  patient better.   If  standard  recommendations on  labour monitoring were carried out the outcome of this pregnancy  is likely to have been the birth of a healthy baby and cerebral palsy would  not have occurred."  (My emphasis)

[28]	 For three hours fifteen minutes there is no record that the heartrate was checked at all.  Even the Defendan'ts obstetrician, Dr Frank, conceded that the care the Plaintiff received during labour was sub-standard.

[29]	In Lee v Minister of Correctional Services the court referred to, inter alia, to

Minister of Finance and Others v Gore NO at para [47]:

"The legal mind enquires: What is more likely?"

And then:

"Application of the "but for" test is not based on mathematics, pure  science or philosophy. It is a matter of common sense, based on the practical way in which the ordinary person's mind works against the background of everyday-life experiences. Or, as was pointed out in similar vein by Nugent JA in Minister of Safety and Security v Van Duivenboden:

"A  plaintiff  is  not  required  to   establish   the   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  analysis  of  what  would  probably  have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than metaphysics."'

[30]	All the experts were in agreement that if the alert and action lines are crossed, then to have a risk of a baby in foetal distress. The action line was crossed at 04h00 when the Plaintiff should have been examined and the foetal heartrate checked. This was not done.

[31]	Counsel for the Plaintiff argued that:

" It is submitted that if the defendant was negligent by not assessing the foetal heartrate and by not taking action when the action line was crossed, the baby would have been delivered timeously to prevent the onset of the acute profound injuries at the end of the labour just before birth." I agree with this statement.

[32]	The facts in M v MEG for Health, Eastern Cape are distinguishable from this case. In M v MEG for Health, Eastern Cape the court decided that there  was  not enough time to expedite delivery. Whereas in this case, both Professor Van Toorn and Dr Ibrahim gave undisputed evidence that there probable would have been warnings (decelerations of the heartrate) timeously enough for delivery to have been expedited either through instrumental delivery, suction, or caesarean section after stopping contractions with medication, or reverse the signs. This evidence was not disputed by the Defendant.

THE EVIDENCE

[33]	 As already stated, the evidence of Professor Van Toorn and Ibrahim was not disputed successfully by the Defendant. However, the court a quo  made adverse credibility findings against the two nurses who attended the Plaintiff at the hospital. Dr Frank, for the Defendant, conceded that the treatment meted out to the Plaintiff was sub-standard.

[34]	In his report, Dr Frank states:
	
"Despite the chaos and confusion associated with this case, the multiple narratives, irregular case notes and sub-standard care, in the final analysis this is case of an intrapartum sentinel event which occurs suddenly and without warning. At the time of this  incident  Sipetu Hospital did not have CTG machines for continuous fetal monitoring and even  if  a  bradycardia  was  heard  on  auscultation,  the  time  taken  to confirm a prolonged bradycardia and perform a caesarean section, as in Okamura's study, irreversible damage may have already occurred.’

[35]	In this finding, Dr Frank does not take into account the fact that foetal heartrate monitoring was last listened at 02h30 and there was no FHR from 03h00 up to the stage of delivery. He also did not deal with the fact  that Plaintiff's  labour was not progressing because the action line was crossed while the labour was still at 7cm dilation.

[36]	The court a quo was correct in accepting the evidence of Professor Van Toorn and Dr lbrahim and, moreover, there is no evidence of a sentinel event in this case. Dr Frank made only a speculation.

CONCLUSION

[37]	I do not find any fault to the approach adopted by the court a quo in this matter.

It evaluated the entire evidence presented before it correctly. It also applied the legal principles relating to pleadings correctly. The raising of a defence of acute profound damage for the first time on appeal and in the absence of evidence by the Defendant in the court a quo to support such a defence constitutes a devastating flaw in the entre appeal.

[38]	Accordingly, the appeal is dismissed with costs, including costs for the engagement of two counsel and costs of the application for leave to appeal.

Acting Judge of the High Court

Date of argument				18 May 2020

Date judgment delivered			23 July 2020

Counsel for the Appellant 			Adv BJ Pienaar SC and Adv M Jikwana

Attorneys for the Appellant			The State attorney
						94 Sissons Street ,Broadcast House
						Fortgate
						Mthatha
Tel No						(047) 502-9900
Fax No					(047) 531-1009
REF						76/16/A2 (Mr M.Nqiwa)

Counsel for the Respondent		Adv JJ Wessels SC
Attorneys for the Respondent		Nonxuba INC.
						c/o Photelwa & Co.
						43 Wessly Street
						MTHATHA
Tel No						(047) 531-0237
Fax No					(047) 531-0137
REF						ZMMN/mn/NOH 2/00001