Life Healthcare Group (Pty) Ltd v Suliman

• Jurisdiction: South Africa
• Judge: Shongwe ADP, Majiedt JA, Seriti JA, Wallis JA and Saldulker JA
• Judgment Date: 20 September 2018
• Citation: 2019 (2) SA 185 (SCA)
• Docket Number: 529/17 [2018] ZASCA 118
• Hearing Date: 20 September 2018
• Counsel: SR Mullins SC for the appellant. OA Moosa SC for the respondent.
• Court: Supreme Court of Appeal

Shongwe ADP (Majiedt JA, Seriti JA, Wallis JA and Saldulker JA concurring): D

[1] Medical negligence claims have escalated substantially in our country in recent times. This has caused insurance premiums for medical doctors to skyrocket and has proved to be a disincentive for the specialisation in certain medical fields, of which obstetrics and gynaecology appears to be one. This appeal is against the order and judgment E of the court a quo (Ploos van Amstel J) dismissing with costs the claim of the appellant against the respondent. Initially this case started when the plaintiffs, Mr and Mrs S, the parents of N, their son, who was delivered on 12 July 2008 and shortly thereafter diagnosed with cerebral palsy, sued Life Healthcare Group (Pty) Ltd, as the first defendant, and Dr Abdool Samad Suliman, a specialist obstetrician and gynaecologist, F as the second defendant, jointly and severally, for the damages resulting from the birth injuries sustained by their child. The appellant issued, simultaneously with its plea, a third party notice against the respondent (in terms of rule 13 of the Uniform Rules of Court) in which it alleged, in terms of s 2(1) of the Apportionment of Damages Act 34 of 1956 (the Act), G that the respondent (third party) negligently contributed to, or was the cause of any damages which either of the plaintiffs might prove they had suffered. It sought a contribution in the event the court a quo found that the appellant was negligent.

[2] Subsequently the parties settled the dispute with Mr and Mrs S on H the basis that the appellant and the respondent would pay to the plaintiff a sum of R20 million without admission of negligence or breach of contract or liability on their part. Thus, the hearing in the court a quo proceeded without the participation of the plaintiffs. The lis was between the appellant and the respondent. (I shall henceforth refer to the parties as the hospital and Dr Suliman for ease of reference.) I

[3] The hospital admitted, during the hearing, that their nursing staff were negligent. However, Dr Suliman denied negligence and averred that, in the event he was found to have been negligent, such negligence was not causally linked with the resultant injury. The court a quo found that Dr Suliman was also negligent but was unable to find that his J

Shongwe ADP (Majiedt JA, Seriti JA, Wallis JA and Saldulker JA concurring)

negligence A was causally linked with the harm suffered by the plaintiffs and the child. It accordingly dismissed the hospital's claim against Dr Suliman. This appeal is with the leave of the court a quo.

[4] The facts of this case are largely common cause. Mrs S (the patient) fell pregnant sometime in 2007. On 12 July 2008 at about 10h00 she was B admitted at the Crompton Hospital, which is a part of the Life Healthcare Group. Prior to her admission date she had contracted with Dr Maise, an obstetrician and gynaecologist, to attend to her during her labour and subsequent delivery of the baby. On the day of her admission, however, Dr Maise was unavailable, but had made arrangements with C Dr Suliman to 'cover' for him. The understanding was that Dr Suliman would attend to Mrs S in the absence of Dr Maise. The hospital staff was made aware of this arrangement. Apparently, it is a well-known practice in the medical fraternity. At about 10h30 Dr Suliman was telephoned by Sister Savage informing him of Mrs S's admission. Dr Suliman instructed her to allow labour to proceed and to sedate the patient, if D necessary. He also prescribed Pethidine and Aterax, for managing pain and nausea, respectively.

[5] The nursing staff's duties, inter alia, were to monitor, observe and record the developments, progress or lack thereof of the patient. A cardiotocography (CTG) was used to record the foetal heart rate. Sister Savage E telephoned Dr Suliman again at 18h35 and advised him that the patient was four centimetres dilated with the head of the baby 3/5 above the pelvic brim. She reported a deceleration of the foetal heart rate, but added that it recovered quickly. Dr Suliman instructed her to transfer the patient to the labour ward, that her membranes be ruptured and that an epidural be arranged. (This is a form of anaesthesia administered by an F anaesthetist.)

[6] Up to this point Dr Suliman had not been to see nor visit the patient. The records at 18h40 showed that the heart rate decreased to 90 beats per minute, but this record was not brought to the attention of G Dr Suliman, as the nursing staff should have done (the normal foetal heart rate is between 110 – 160 beats per minute). The recording showed that the contractions became strong at three per minute; Dr Suliman was informed about this development at approximately 19h30. Another deceleration occurred at around 19h40, but was not reported to Dr Suliman. At 21h00 Dr Suliman was informed that the patient was fully H dilated. He arrived at the hospital at 21h20 for the first time since the patient was admitted at 10h00.

[7] On his arrival Dr Suliman looked at the CTG and realised that the foetus had been in distress for some time and that delivery was a matter I of urgency...