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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION,

JOHANNESBURG

CASE NO: 2012/32085

DATE: 08 AUGUST 2014

In the matter between:

MSHIBE, YVONNE obo SINDI...........................................PLAINTIFF

And

MEC FOR HEALTH, GAUTENG

PROVINCIAL GOVERNMENT.......................................DEFENDANT

J U D G M E N T

WRIGHT J

1. The plaintiff, Ms Mshibe is a 28 year old woman. When she was 19 years old she gave birth to a daughter, Sindi. Ms Mshibe claims damages from the defendant arising out of alleged permanent brain damage to Sindi during her birth. The defendant, according to the particulars of claim is said to have been negligent, broadly speaking, in failing to ensure that suitably qualified medical staff with proper equipment attended to the birth of Sindi. It is also alleged that the defendant is vicariously liable for the negligent failure by the defendant’s employees to deliver Sindi carefully.

2. Mr McKelvey led Ms Mayat for Ms Mshibe. Mr H Kajee appeared for the defendant. It was agreed between the parties that the only two issues are the merits and quantum. By agreement between the parties I separated the issues. I ordered that the trial proceed only on the question of merits.

3. Two court days earlier, the case had come before my learned Sister Weiner. She refused the defendant’s request for a postponement. I heard both sides on the question of a postponement. The defendant did not lodge a written application. The MEC is not ready to proceed because either the defendant or the defendant’s attorney, or both, did not taken the necessary steps to prepare for trial. In my chambers it was mentioned by Mr Kajee that the attorney dealing with the case for the defendant needs dialysis treatment a number of times per week. This does not explain a complete lack of action over at least the last year. The defendant has filed no expert summaries and it would appear that only very recently has the defendant or the attorney begun to approach experts.

4. During 2005 Ms Mshibe went to the Dobsonville clinic. Her suspected pregnancy was confirmed. She had regular check-ups, first at Dobsonville and then at Chris Hani Baragwanath Hospital. She had no problems during pregnancy, did not fall ill and did not drink alcohol or smoke. She was HIV positive at the time of her pregnancy. She was told, 4 months into her pregnancy that her expected date of delivery would be 23 July 2005. She was given vitamins for her HIV and told to start taking Nevirapine when she went into labour. She took one Nevirapine when she went into labour. Sindi tested HIV negative when she was a few weeks old.

5. On 23 July 2005 Ms Mshibe went to the Dobsonville clinic. She was told by the doctor who attended to her that she was overdue. She was given a file and told to go to Bara. She went the next Monday which was the first available day. She then had regular checks at Bara. At no stage was she informed that there were any complications with her pregnancy. She had a sonar scan and was not informed of any problem.

6. Ms Mshibe does not know the names of the doctors who attended her at Dobsonville or Bara.

7. In the early hours of 18 August 2005 she went into labour with pains in her back near the hip area and in her stomach. She arrived at Bara by taxi at 7 am and joined a queue. She told a nurse that she was not feeling well. The nurse took her to the head of the queue and to a doctor who examined her and wrote an admission form admitting her to the maternity complex. At the maternity complex her file was taken from her. She waited a long time. A doctor then examined her. A catheter was inserted. A vaginal examination was done and a cardiotacograph (CTG) belt was strapped around her. Her blood pressure was taken. She was not informed of any problem with her blood pressure. She does not recall if her urine was tested. After the CTG had been completed she was sent to a different cubicle. She was placed on a drip. She was not told why. She does not know the name of the examining doctor.

8. She remained in her cubicle until about 13H40 the next day, 19 August 2005 when she gave birth. While she was in this cubicle and prior to the birth, when she screamed she was told by the nursing staff that she was just making a noise and that she was not yet ready to give birth. She was not allowed water or food as she was told that she would be delivered by Caesarean section. She was given no food or water until after the birth. It was only when she screamed that a nurse would examine her vagina and say that she was not ready to deliver. Once, on the evening of 18 August an unknown substance was injected into her drip and once again on the morning of 19 August. Her pain would come and go and she had contractions.

9. At one stage, a female doctor, whose name Ms Mshibe does not know, arrived wearing a green gown. About 8 nurses, including students were present. They had a trolley with equipment. The doctor inserted something into Ms Mshibe’s vagina and attempted to pull the baby out. The doctor pulled, stopped and started again continuously. Ms Mshibe was not told what the staff were doing. She was hungry and thirsty. She was too weak to push properly. The doctor attempted the birth while the catheter was in place. Ms Mshibe cannot describe the piece of equipment used by the doctor but it made a noise. It turned out to be a vacuum extractor.

10. Eventually the baby came out and was placed on Ms Mshibe’s chest. Sindi did not cry and was blue. She did not move and was then taken to ICU. Ms Mshibe does not recall being cut but received seven stitches shortly after the birth. The catheter was removed from Ms Mshibe after the stitching had been completed. The catheter was removed by a student. The stitching was done by the doctor. Ms Mshibe was given food and water. Ms Mshibe never consented to a vacuum induced delivery.

11. Ms Mshibe next saw Sindi in the ICU the day after the birth, that is on 20 August. She had to wait until after visiting hours. Sindi was lying on her right side in an incubator. She was bleeding from her head. The next day Ms Mshibe was discharged. She was not allowed to take Sindi who remained in ICU for a week. She was told by a doctor that Sindi was brain damaged because she did not get enough oxygen during her birth. After a week Sindi was moved to a paediatric ward where she remained for a week and was then discharged. When she was discharged Sindi looked better than she did at birth. Ms Mshibe fed her from a cup. Milk would run down the side of Sindi’s mouth. As Ms Mshibe was HIV positive she could not breastfeed Sindi.

12. When Sindi was discharged, no one told Ms Mshibe what to do or what was wrong. She was simply told to come back for a check-up on 8 September 2005. At some later stage she was told that Sindi suffered from cerebral palsy. Ms Mshibe was referred to a neurosurgeon. After a scan Ms Mshibe was told that Sindi had brain damage and needed an operation. Ms Mshibe declined the operation as the neurosurgeon had informed her that Sindi had only a 50% chance of surviving the operation.

13. Sindi is now 9 years old. She can walk. She has a mental disorder. She wears nappies. She has been refused admission to schools. She cannot feed or bath herself. She eats mashed food which is fed to her. She attends a cerebral palsy clinic. During the day she goes to a crèche. When she was about 2 years old she had fit for which she received medication.

14. Dr Wessels is an experienced paediatrician. He examined Sindi the day before he testified and diagnosed spastic quadriplegic cerebral palsy. He had read an affidavit, exhibit A, deposed to by Ms Mshibe in an application brought to condone the fact that she had not given timeous notice to the defendant of her intention to institute the present case. The affidavit had annexed to it medical records prepared by the defendant’s staff members. The affidavit describes Ms Mshibe’s experience in detail.

15. Dr Wessels handed up his CV which I accepted as exhibit B. He had prepared his own report, exhibit C. He confirmed the correctness of his report. He concluded that Sindi was born after an uneventful pregnancy at full term by way of a traumatic vacuum extraction, resulting in significant birth asphyxia with grade 2 Hypoxic Ischemic Encephalopathy and intra-cranial haemorrhaging. This combined neurological insult resulted in Sindi’s condition.

16. To establish the cause of Sindi’s condition, Dr Wessels divided time into three phases. Pregnancy, the delivery process and then post-birth up to 5 months. He stopped at 5 months because the hospital records indicate no problems having occurred from birth to 5 months. There was no suggestion from the defendant that Sindi’s condition could have occurred after birth.

17. Dr Wessels ruled out the cause of Sindi’s condition as having occurred during pregnancy prior to delivery. He did so on the basis of a report of a normal pregnancy and no indication of any kind to the contrary. He concluded that foetal growth had been normal as:

17.1 Sindi was born at full term, namely 38 weeks,

17.2 she weighed 3.1 kgs at birth, which is normal,

17.3 she was normal size at birth,

17.4 a sonar scan during pregnancy had revealed nothing untoward.

18. He stated that Ms Mshibe’s HIV positive status was not relevant to Sindi’s present condition.

19. Ms Mshibe experienced a 30 hour labour. This, Dr Wessels said is too long. During contractions there is a temporary interruption of blood and oxygen to the baby’s brain. The longer the labour and the more intense the contractions the greater the risk to the baby of asphyxia to the brain, which is a brain injury. Proper medical care requires constant monitoring to check the period during which the baby is under stress. Monitoring by way of a CTG would pick up stress to the baby due to lack of oxygen. A falling heart rate in the baby due to contractions should normally be observed. Once it is observed that the baby is in distress, staff have about 20 to 40 minutes to deliver the baby otherwise irreparable brain damage can occur.

20. Delivery should either be by normal vaginal birth if possible, alternatively a vacuum induced birth or, if necessary, by Caesarean section. If the mother’s cervix is fully dilated and the baby’s head is down a vacuum delivery can be attempted. If it is not successful straight away the baby’s condition is worsened by the increased pressure on her head. In these circumstances delivery must immediately be done by Caesarean section.

21. Dr Wessels referred to a Neonatal Discharge Summary form signed by a Dr Ranchod on 28 August 2005 when Sindi was discharged. This form records amongst other things “BA (HIE Grade II) Seizures”. BA means birth asphyxia and in its terms rules out asphyxia prior to the delivery process or thereafter.

22. The apparently full clinical notes covering the time from birth to 5 months contained no indication that Sindi’s condition was caused after her birth.

23. During cross examination of Dr Wessels it became common cause that Sindi experienced asphyxia during her delivery which caused her present condition.

24. It was suggested by Mr Kajee that a number of factors, inconsistent with negligence on the part of the defendant or the defendant’s employees, could have caused the asphyxia during the delivery. An umbilical cord around Sindi’s neck, low blood pressure in Sindi, the fact that the birth allegedly took place at high altitude, choking and an obstructed trachea were suggested. All were given short shrift by Dr Wessels at least partly because none of these suggested factors had been noted when they should have been had they in fact been relevant considerations.

25. Dr Jogi is a Radiologist specialising in neuro-radiology. In November 2013 he interpreted an MRI scan done then on Sindi. He concluded that Sindi’s present condition is constant with chronic sequelae secondary to a partial hypoxic ischaemic injury in a term infant.

26. Dr Davis is a retired obstetrician and gynaecologist. He had listened to Ms Mshibe’s evidence. He had interviewed her in June 2014 and studied the records in this case. He confirmed the correctness of his report. In particular, he found that:

26.1 the indication for the vacuum delivery could only have been a prolonged second stage of labour or foetal distress

26.2 in Sindi’s case the vacuum delivery caused significant foetal morbidity

26.3 Ms Mshibe had been in Bara for over 24 hours before she delivered and there is clear evidence that Sindi suffered from hypoxia during labour

26.4 had standards of care been met, hypoxia should have been diagnosed and appropriate steps taken to prevent Sindi being born with HIE

26.5 the vacuum delivery caused severe trauma to Sindi

26.6 the combination of hypoxia and intracranial bleeding left Sindi with a severe and permanent mental handicap.

26.7 Sindi suffered a significant hypoxic event during her labour.

27. Dr Davis said that it is unusual to insert a catheter unless the patient in Ms Mshibe’s position is expected to be taken to theatre. He said that it is dangerous to attempt a vaginal delivery with a catheter in place.

28. He indicated that delivery by vacuum extraction should not be attempted for more than, at most, 20 minutes. After this a Caesar should be done. In his 32 year career he has never seen a baby with intra-cranial bleeding after a vacuum delivery. Such an injury in these circumstances is most probably due to the use of excessive force by staff in a procedure taking too long. Sindi’s present condition was caused by prolonged labour and inadequate monitoring leading to hypoxia during birth.

29. Mr Kajee did what he could, with what was obviously an inadequate brief, to challenge the evidence against the defendant. In my view Ms Mshibe’s case remains unshaken. Mr Kajee correctly pointed out that there is a discrepancy between the time that Ms Mshibe said in evidence that she spent in labour and the amount of time stated in her affidavit, exhibit A. Her oral testimony was to the effect that she was in labour from the early hours of 18 August to 13H40 the next day. This is approximately 30 hours. In her affidavit she spoke of 18 hours. The difference is irrelevant. It does not begin to provide an answer to the evidence against the defendant.

30. After Dr Davis’ evidence, Mr McKelvey closed Ms Mshibe’s case. Mr Kajee applied for absolution. I dismissed the application as the evidence, at that stage, was overwhelmingly in favour of Ms Mshibe. Mr Kajee then closed his case.

31. Mr McKelvey, correctly in my view did not press me to find negligence on the part of the defendant. He relied on the negligence of the staff in the employ of the defendant. In my view Ms Mshibe has proved negligence on the part of the staff for the reasons set out above. Ms Mshibe has established that Sindi’s present condition, spastic quadriplegic cerebral palsy, was caused by the negligence of one or more of the defendant’s employees acting in the course and scope of their employment with the defendant.

32. It is unfortunate that Ms Mshibe was required to testify. She had to go through the ordeal of describing intimate personal matters. She did so with fortitude. Three doctors had to testify. I have no hesitation in accepting their uncontradicted professional evidence. The defendant has simply delayed matters and caused an unnecessary trial. This is unfair to Ms Mshibe and the doctors. It has taken up valuable court time. It would be appropriate that I order the defendant to pay costs on a punitive scale.

Order

1. It is declared that Sindi suffers from spastic quadriplegic cerebral palsy caused by the negligent conduct of one or more employees of the defendant shortly before or during Sindi’s delivery.

2. The defendant is to pay to the plaintiff the damages caused to the plaintiff in her personal capacity and in her capacity as Sindi’s guardian, to be proved arising out of the finding in paragraph 1 of this order.

3. The defendant is to pay the plaintiff’s costs in the action to date on the scale as between attorney and client. These costs are to include the costs of two counsel, to the extent that two counsel were employed. These costs are to include the qualifying fees of the following witnesses who are declared necessary witnesses:

a. Dr Wessels

b. Dr Jogi

c. Dr Davis

JUDGE OF THE HIGH COURT

On behalf of the Plaintiff: Adv C McKelvey

083 660 5501

Adv N Mayet

082 790 5278

Instructed by: Du Plessis Attorneys

011 331 1223

On behalf of the Defendant: Adv H Kajee

082 607 0786

Instructed by: The State Attorney

011 330 7680

Dates of Hearing: 4,5,6,7 August 2014

Date of Judgment: 8 August 2014

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