Collins v Administrator, Cape

• Jurisdiction: South Africa
• Judge: Scott J
• Judgment Date: 09 February 1995
• Citation: 1995 (4) SA 73 (C)
• Docket Number: 4500/93
• Court: Cape Provincial Division

Scott J:

The plaintiff sues for damages both in his personal capacity and J in his capacity as father and natural guardian of his minor daughter,

Scott J

A Lee-Ann. The action is a sequel to a tragic incident which occurred at the Tygerberg Hospital on 21 October 1991, when Lee-Ann suffered severe cerebral hypoxia following the displacement of a tracheostomy tube on which she was dependent for ventilation. At the time she was barely 16 weeks old. As a result of irreversible brain damage she is now in what is B described as a permanent vegetative state. Although her brainstem function is sufficient to maintain adequate ventilation and circulation she has no intellectual function. She has no awareness of environmental stimuli and no apparent awareness of herself. There is no hope of recovery and she will in all probability die within the next few years.

C Two questions require determination. The first is whether the mishap was attributable to the negligence of any of the members of the hospital staff who were involved in the care of Lee-Ann at the relevant time. The second, which arises only if the answer to the first is in the affirmative, is the quantum of damages to which the plaintiff is entitled. D It is common cause that at all relevant times the members of the hospital staff were acting in the course and scope of their employment with the defendant.

Lee-Ann was born on 26 June 1991. Shortly after her birth she was observed to have a respiratory problem and she was immediately intubated with an endotracheal tube. Subsequent and more detailed examination E revealed swelling of the vocal chords and the supraglottis. After 16 days there was no improvement and on 12 July 1991 a tracheostomy was performed. It is common cause that the procedure was mandatory at that stage. It involved establishing a portal in the trachea with the insertion of a neonatal tracheostomy tube. The object, of course, was to create an airway below the larynx and so bypass the obstruction in the larynx. The F tube is made of a plastic material. The portion which actually enters the trachea is 30 mm in length, slightly curved and flexible. The external part of the tube has a flange with islets on either side, through which a tape is passed and tied around the patient's neck. The tension (or tightness) of the tape around the patient's neck is of vital importance to G ensure that the tube remains in position. One of the grounds of negligence relied upon by the plaintiff is that the tension of the tape in the present case was inadequate and I shall deal with this aspect of the matter in due course.

Following the tracheostomy, Lee-Ann was first placed in the neonatal intensive care unit for a few days and thereafter, on 16 July 1991, moved H to the paediatric tracheostomy unit which, as I shall explain, is a high care unit as opposed to an intensive care unit. Upon examination on 20 August 1991 it was found that the swelling had subsided but that she had an infantile, omega-shaped, epiglottis which at that stage remained non-functional. She was, therefore, still wholly dependent upon the I tracheostomy tube for ventilation, but the prognosis was a good one.

Before turning to the events of Monday morning, 21 October 1991, it is necessary to describe briefly the tracheostomy unit in which Lee-Ann was a patient and the procedure followed with regard to the care of patients in that unit. The unit is situated on the ninth floor of the hospital and comprises two interleading rooms each accommodating five patients. The J rooms, which are numbered 13 and 14, respectively, each have a door into

Scott J

A the passage. The dividing wall ends before it reaches the passage wall so as to permit egress from the one room to the other without having to go out into the passage. A part of this open area is taken up with a desk which is so situated that anyone sitting at it is able to see into both rooms. Younger children, who are more vulnerable, are accommodated in B room 13, while older children are kept in room 14. One of the consequences of a tracheostomy is to render the patient incapable of crying. As crying is the typical means by which a young child in distress will attract attention, the disability from a nursing point of view is a serious one. Older children with greater muscle power are more easily able by other means to attract attention than very young children. For this reason, it is generally accepted that the younger the child the more C vulnerable it is to the consequences of an accidental decannulation. Partly, at least, for this reason new nurses begin in room 14 before progressing to room 13. As I have said, Lee-Ann was only 16 weeks old when the accident occurred. Because of her tender age she was not only a patient in room 13 but also occupied the bed closest to the desk which, it D was common cause, is the prime position in the ward.

The unit provides a 24-hour per day nursing care. The complement for the day shift, that is to say, from 7 am to 7 pm, is two staff nurses and two nursing assistants with an overseeing sister. The complement for the night shift is the same, save that the overseeing sister also covers the medical ward on the same floor of the hospital. In practice, there are E two nurses allocated to each room for 24 hours per day. The one would ordinarily be a staff nurse, having undergone a two-year training course in general nursing, and the other an assistant nurse who would have undergone a one-year training course. All the nurses working in the unit are, however, specifically allocated to the unit and are trained to care F for paediatric tracheostomy patients. In addition to a specialist team which serves the unit there is also a 24-hour medical cover, that is to say a doctor on call on the floor. The unit is similar to an intensive care unit in the sense that the patients require a degree of specialised care but unlike an intensive care unit in that they are not attached to G specialised monitoring equipment.

Dr Gie, who is the head of the unit, explained that although two nurses are allocated to each room on a 24-hour basis, it frequently happens that only one of them is present. This is because the other will, for example, on occasions have to collect food bottles from the kitchen or take a child to one or other of the therapy wards, or will take a lunch or tea break. H This was also the evidence of the nurses. Dr Gie explained, however, that they attempted to have two nurses in each room for as much of the time as possible. He also agreed that where one nurse from each of the two rooms had to leave for some reason or other, it was obviously desirable that in such event the overseeing sister be present in the unit.

I The duties of the nurses in the unit include various specialist tasks. Each patient, for example, has to have its trachea cleared of mucous matter on a regular basis by means of a suctioning process. Similarly, the tracheostomy site of each patient has to be regularly cleaned. The latter procedure involves drawing the flange of the tube slightly away from the neck of the patient in order to gain access to the skin J underneath. A

Scott J

A number of nurses attached to the unit gave evidence. They all said that it was standard practice to check the tension of the tape holding the tracheostomy tube in place whenever anything was done to the patient, whether it be the clearing of the trachea, the cleaning of the tracheostomy site or anything else. This, they said, was effected, first B by ensuring that nothing larger than a little finger could be inserted between the tape and the back of the patient's neck and, secondly, by drawing the flange of the tube away from the neck anteriorly to ensure that there was not too much 'play'. I mention, here, that many of the nurses were unable to explain why it should be necessary to constantly check the tension of the tapes, but that they were all very conscious of C the need for the tension to be correct. Indeed, Dr Gie explained that provided the knot tying the two ends together does not slip, the tension would not vary. He said that every Thursday the tracheostomy tube of every patient in the unit was changed and unless the knot came undone the tension of the tape would accordingly remain constant. Nonetheless, he D explained that the unit was run in such a way that, as a matter of procedure, the nurses were required constantly to monitor the tension of the tapes.

I return to the accident and the events which preceded it. On Thursday, 17 October 1991, Lee-Ann's tracheostomy tube was changed by Dr Heyns, who is a medical officer attached to the unit. He was assisted by staff nurse E Humphries and nursing assistant Jansen. All three gave evidence and testified that they were satisfied that the tension of the tape was correct. Other nurses who cared for Lee-Ann between Thursday and Monday morning also testified that on various occasions they had monitored the tension of the tape and found it to be adequate. The two nurses on duty F in room 13 on Sunday night, that is to say from 7 pm on Sunday, 20 October, to 7 am on Monday, 21 October, were nurse Pieterse and nurse Manel. Neither observed anything untoward in the condition of Lee-Ann. The nurses' Continuous Report records that at 5.20 am nurse Pieterse cleared Lee-Ann's trachea by means of the suctioning process and also G cleaned the tracheostomy site. It records also that at 6 am the suctioning procedure was repeated. This was confirmed by nurse Pieterse who said that she had found all to be well with the patient. At about 6.45 am nurse Pieterse went to see one of the matrons in the hospital about study leave she wished to take, leaving nurse Manel alone in Room 13. She testified that Lee-Ann was at that stage peaceful and clearly H nothing was amiss. This was confirmed by nurse...