MMcA v MEC for Health Eastern Cape
| Jurisdiction | South Africa |
| Judge | BR Tokota J |
| Judgment Date | 19 November 2019 |
| Docket Number | 517/2015 |
| Court | Eastern Cape Division |
Tokota J:
In this matter the plaintiff, acting in her capacity as the representative and natural guardian of her son, ELMcA, (hereinafter sometimes referred to as ELMcA) instituted an action against the Member of the Executive Council for Health, Eastern Cape (the
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MEC) for damages arising from the alleged medical negligence at the hands of the Frere Hospital officials who were acting within the course and scope of their employment with the MEC. The MEC defended the action.
At the commencement of the hearing the parties agreed that it would be convenient to separate the merits of the matter from the issue of quantum and sought an order to that effect in terms of Rule 33(4) of the Uniform Rules of Court. It was so ordered. The facts of the case are largely common cause as a result the parties agreed that the only witnesses to be called would be expert witnesses.
BACKGROUND:
The background facts are either noted in the available hospital records or from expert reports for both parties. The plaintiff was admitted at Frere Hospital and subsequently gave birth by caesarean section to ELMcA at 18h25 on 18 October 2010. Amongst other things, the baby had tachypnoea (fast breathing) and the paediatrician was notified to come and examine him. The baby was admitted to the nursery for possible Transient Tachypnoea of the new born.
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On 19 October 2010 the baby was comfortable and was transferred to his mother. On 20 October 2010 jaundice was detected in the baby. This was confirmed by the laboratory reports that showed that the total serum bilirubin (TSB) level was 506 micromol/L. The specimen was registered at 7h41 approximately 37 hours after birth of the baby.
The discovery of jaundice in the baby necessitated immediate exchange blood transfusion to prevent complications. It was discovered that the baby's blood group was incompatible with that of his mother causing the destruction of red blood cells resulting in the TSB level to become very high. Dr Lombard's evidence which was never challenged was that this should have been treated as an emergency. The baby urgently needed fresh blood for transfusion. According to him it is not an elective treatment.
Once jaundice was identified, Frere Hospital staff commenced the treatment procedure by giving the baby intravenous haemoglobulin called polygam in order to reduce the bilirubin level. In addition intensive phototherapy treatment was also done.
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On 20 October 2010 at 23h00 the level of bilirubin was reduced from 506 to 498 and on the morning of 21 October 2010 at 08h24 the level was at 493.
On 21 October 2010 the hospital records disclose that 'no significant drop in total serum bilirubin overnight despite triple phototherapy and polygan. Blood for exchange transfusion ordered from P. E. At this stage neonatal is neurologically sound with no sign of kernicterus and no seizure.'
At about lunch time on the same day the plaintiff requested a transfer of the baby to Life Beacon Bay Private Hospital. Blood transfusion was done at Life hospital at approximately 20h00 on that day.
In his report Dr Lombard who was the only witness for the plaintiff had this to say:
"Hyperbilirubinemia develops when the production exceeds the baby's ability to excrete it. In severe cases, the bilirubin can then cross the blood brain barrier and cause irreversible brain damage. In the acute phase the condition is called bilirubin encephalopathy and the term kernicterus is used for the chronic manifestations. For the most part bilirubin encephalopathy should be a preventable condition...."
'According to the guidelines, the level of TSB at which an exchange transfusion should be done at 37 hours of life is 365. The guidelines state: "Immediate exchange is recommended if signs of bilirubin encephalopathy are present or is more than 85 micromol/L above threshold.''
ELMcA's bilirubin was 141 micromol/L above the threshold. According to the guidelines an exchange should have been done immediately.
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The guidelines further state: 'Infants who present with TSB above the threshold should have exchange done if the TSB is not expected to be below the threshold after 6 hours of intensive phototherapy.
In ELMcA's case the TSB was repeated more than 11 hours after the initial result was phoned to the ward."
"The best opportunity to treat the hyperbilirubinemia and prevent possible complications was on 20-10-2010."
I assume that the treatment referred to in his conclusion is the exchange of blood transfusion.
Dr Lombard and Dr Mzizana(paediatrician of the defendant) agreed that "the cause for ELMcA's cerebral palsy was hyperbilirubinemia in the neonatal period which caused bilirubin encephalopathy and subsequent kernicterus. The hyperbilirubinemia occurred due to an incompatibility between Ms McAllister's blood group (0+) and that of ELMcA (B+) which caused haemolysis (destruction of red blood cells) of ELMcA's red blood cells resulting in an increase in the total serum bilirubin (TSB)."
Both experts concluded by saying that although ELMcA received appropriate treatment at Frere Hospital the delay in ordering the blood for transfusion was for an unacceptable period.
The defendant called one witness, Dr Harper, a paediatrician. He testified that in October 2010 he was a consultant paediatrician and Head of the clinical unit for neonatal section at Frere hospital. He testified further that he recalls this case because it was quite unusual
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and quite stressful. According to him when it was discovered that ELMcA's TSB level was extremely high they tried other alternative treatment because there was no blood available in East London. Blood was then ordered from Port Elizabeth.
On 20 October 2010 when the baby was jaundiced he was moved to the N3 nursery where Dr Harper was based. The blood results came to the ward and they realised that the TSB level was very high. Because of the age and the "gestational age" of the baby it was a "term baby."After the results came they wanted to do exchange transfusion because the bilirubin level was significantly beyond the exchange transfusion level for a child at that particular age of only 37 hours. Dr Harper believes that the blood bank was contacted because that would be the first line of treatment in such a situation. The doctors were informed that there was no fresh whole blood in the blood bank in East London.
Dr Harper further testified that during the course of the day further blood results came indicating the cause of jaundice. The level of jaundice was extremely high. The reason for this was that the blood groups of the baby and the mother were incompatible as a result there was destruction of red blood cells causing jaundice level, the bilirubin
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level, to be very high. The baby was then given intravenous haemoglobulin sometimes called polygam. During the course of that morning they had already started the phototherapy treatment. The baby was also well hydrated and was given a medication called phenobarbitone which sometimes assists the liver process and reduces the level of bilirubin. Despite all this there was no significant reduction of bilirubin level.
According to Dr Harper on 21 October 2010 whilst they were still waiting for the blood from Port Elizabeth and before they could perform the exchange transfusion a request was made to transfer the baby to a private hospital. It was about lunch time. They facilitated the transfer. He instructed a junior doctor in the nursery to write a summary of what had happened in the referral form to be completed.
ANALYSIS:
Mr Zilwa for the defendant argued that the plaintiff's case was based on undue delay in ordering the blood. He contended therefore that she failed to prove her case in that she produced no evidence that there was a delay. He contended further that the plaintiff has failed to prove that there was undue delay in ordering the blood. The nub of his
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argument was that it was clear from Dr Harper's evidence the blood was immediately ordered after the level of TSB was discovered to be very high.
Regrettably, I cannot agree that the blood was ordered immediately upon discovery of jaundice in ELMcA.
The plaintiff's case, according to pleadings, is that the hospital staff allowed ELMcA to...
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