NAM v Member of the Executive Council for the Department of Health

• Jurisdiction: South Africa
• Judge: N Gutta J
• Judgment Date: 20 September 2018
• Docket Number: 1292/2016
• Court: North West Division, Mahikeng
• Hearing Date: 20 June 2018
• Citation: 2018 JDR 1695 (NWM)

Gutta J:

A. INTRODUCTION

[1]

Plaintiff, NAM instituted an action for damages on behalf of her minor daughter, TM (TM) against the defendant, the Member of the Executive Council for the Department of Health for damages arising from medical negligence. A separation of quantum and merits was ordered and the trial proceeded on merits only.

[2]

Plaintiff in her particulars of claim alleged inter alia that:

"7.

At all material times hereto there was an oral, alternatively a tacit, further alternatively an implied agreement between plaintiff and the relevant staff at the said Clinic. (alternatively there was a legal duty on the said staff) in terms of which the said staff:

a)

would advise , treat and care for plaintiff and for her baby and would perform their duties in respect of the plaintiff and her said baby in a professional manner and with such professional skill as is reasonable for such staff and not in a reckless or negligent manner;

b)

would keep the clinic open for members of the public and for the plaintiff on a 24 hours per day basis;

c)

Alternatively to (b) above, would provide in a prominent place at the clinic contact particulars where members of the staff of the clinic can be contacted in case of emergency.

8.

In breach of:

(a)

the terms of the said agreement, alternatively

(b)

the said legal duty

and in an unprofessional and reckless, alternatively grossly negligent, further alternatively negligent manner the said staff wrongfully performed their duties in respect of the plaintiff and her baby. The grounds of recklessness or negligence are one or more or all of the following:

8.2

On the date of TM's birth the said staff;

a) failed to keep the clinic open, to remain in attendance and to assist the plaintiff with the birth of the baby;

b) failed to provide contact particulars in a prominent place at the clinic through which members of the public, and in particular the plaintiff, could contact them in the case of an emergency;

2018 JDR 1695 p3

Gutta J

c) failed to properly and professionally attend to the baby after their arrival at the clinic and in particular they failed to administer oxygen to the baby in circumstances when it was reasonably necessary for them to do so;

d) failed to enlist the services of a gynaecologist, alternatively of a duly qualified doctor or other suitable specialist to examine and properly treat the baby in circumstances when it was reasonably necessary to do so.

e) Failed to adhere to the standard of practice of a reasonable sister or nurse in their respective positions;

in order to ensure that patients, and in particular the plaintiff, who visit the clinic are attended to without delay and to prevent the plaintiff's baby from suffering from brain and other injuries".

B. COMMON CAUSE

[3]

It is common cause that:

3.1

that the Makgobistad clinic (the clinic) is a government institution which should be open to the public on a 24 hour basis;

3.2

that all the relevant times, medical staff involved in the treatment of plaintiff at the clinic were employed by defendant and were acting within the course and scope of their employment.

3.3

TM was born in a motor vehicle. The birth was a normal vertex delivery (NVD).

3.4

The maternity case record was lost. The Road to Health Card (RTHC) was incomplete.

3.5

TM was diagnosed with Cerebral Palsy (CP) at the age of 6 months.

C. ISSUES IN DISPUTE

[4]

The only issue in dispute whether the medical staff at the clinic were negligent in their actions on the day of TM's birth and whether such negligence caused CP.

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Gutta J

D. JOINT MINUTES

[5]

The specialist obstetricians, Dr Sevenster and Dr Malebane in their joint minutes agree on the following:

"4.1

The antenatal course and findings:

1.2.1

There were no antenatal records made available to us for perusal and thus in the absence of the antenatal records pertaining it's course, it is not possible for an obstetrician to comment with any degree of certainty on whether the poor outcome could have been related to any antenatal circumstances and if in any way were preventable;

1.2.2

The patient attended the Makgobistad antenatal clinic several times although this is an unverified statement by the patient.

Labour and delivery

1.3.1

There were no records provided regarding or referring to the birth of the baby in the car, the condition of the baby and what actions were taken. The account of events about the baby being delivered in the car, is patient's version and contradicted by the records in the maternity register.

The absence of any records pertaining aforementioned makes it impossible for the obstetrician to comment with certainty on:

•

Whether there was negligence on the part of the nursing staff if they were present;

•

Whether negligence was the cause for the poor outcome;

•

Whether the poor outcome was preventable

1.3.2

The mother and baby was discharged the same day.

The MRI report

1.4.1

Both the radiologists are of the opinion that the dominant picture is the acute profound hypoxic ischemic brain injury. This result indicates that aforesaid injury occurred in the brain of a term baby but does not indicate a date or timing of the brain insult.

4.2

Disagree on the following:

1.1

Dr C. Sevenster is of the opinion that according to the version of the patient, there was no nursing staff when she arrived at the clinic on 17 December 2003.

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Gutta J

Dr M Malebane is of the opinion that there were nursing staff present at the clinic based on the entry in the maternity register.

1.2

Dr C. Sevenster is of the opinion that according to the version of the patient, she delivered unassisted in the vehicle which transported her to the clinic.

Dr M Malebane is of the opinion that the patient delivered in the clinic although he cannot confirm whether or not she was assisted by the nursing staff as there are no records to this effect".

[6]

In the joint minutes of the neurosurgeons dated, 1 September 2017, Dr TP Moja and Dr HM Marumo agree on the following:

"5.1

The radiologists' findings that the MRI scans are indicative of hypoxic ischaemic brain injury.

5.2

The radiologist also agreed that the MRI study suggests that genetic disorders as a cause of the child's brain damage is unlikely.

5.3

The radiologist's recommendations that the cause and timing of the hypoxic ischaemic injury should be deferred to the obstetricians and neonatologists".

[7]

The radiologists, Dr Kamolane and Dr Jogi, agree on the following:

"6.1

scan is indicative of a hypoxic ischemic injury of a term brain at a chronic stage of evolution.

6.2

dominant pattern of injury in this case is acute profound in nature.

6.3

findings of the MRI study suggest that genetic disorders as a cause of the child's brain damage is unlikely.

6.4

MRI findings suggest that inflammatory or infective causes are unlikely as causes of the child's brain damage.

6.5

A review of the clinical and obstetrical records by appropriate specialists in the field of neonatology and obstetrics are essential in determining the cause and probable timing of this hypoxic ischemic injury".

[8]

The paediatric neurologist, Dr Keshave and Dr Mogashoa agree on the following:

•

TM has mixed cerebral palsy.

•

There is no genetic disorder.

•

The scan is indicative of a hypoxia ischaemic injury of a term brain at a chronic stage of evolution.

•

The dominant pattern of injury is acute profound in nature.

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Gutta J

•

Infective or inflammatory causes are unlikely as a case of the child's brain damage.

•

It is difficult to identify when the hypoxia event occurred.

•

According to the mother the child was able to suck, she was well and active after birth. The RTHC shows that there is only deterioration in growth noted at 9months of age. If this was severe hypoxia from birth asphyxia TM would have displayed signs of encephalopathy in the neonatal period and earlier than 9months of age".

The antenatal notes and the medical notes after delivery are important to ascertain when the insult occurred.

[9]

The specialist paediatricians, Dr Humphrey Lewis and Dr Kganane in the joint minutes agree that:

•

"The pregnancy of Ms Mthombeni was uncomplicated, and that she attended the antenatal clinic regularly at Makgobistad Community Health Centre.

•

Her labour pains started at 03h00 on the morning of 17 December 2003. The family was unable to contact the ambulance service and was taken to the Makgobistad clinic in a private car.

•

When they arrived at the clinic at some time before 08h00, there were no nurses present at the clinic. She was surprised as this clinic is meant to provide a 24 hour service to the community, including maternity care.

•

The child was born in the car outside the clinic, without medical assistance at about 08h15. The infant did not cry or move following delivery.

•

Ms. Mthombeni reports that the nursing staff attended to her and the baby at about 08h30.

•

Her child was taken into the clinic for care. There are no neonatal notes available to record which observations were performed or what the clinical status of the infant was.

•

The birth mass of the infant was 2600g, which is small for gestational age.

•

Later on 17 December 2003, she was sent home with her baby.

•

She noted that the infant slept all night and the following day.

•

Dr Lewis: This "sleepiness" was probably related to a decreased level of consciousness reflecting a neonatal encephalopathy, at least a Sarnat grade II encephalopathy.

•

Developmental delays were noted from the age of 6 months of age. She only started to sit at the age of 4 years.

•

She suffers from cerebral palsy of...