Eastern Cape Local Division, Bhisho)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE LOCAL DIVISION, BHISHO)

CASE NO. CA 470/2017

In the matter between:

N[…] N[…] (obo) Z[…] N[…] Plaintiff and

MEC FOR HEALTH, EASTERN CAPE PROVINCE Defendant

JUDGMENT

MBENENGE JP:

[1] The plaintiff, in her representative capacity as mother and guardian of Z[…] N[…],1 seeks to recover damages from the defendant who has been sued in a nominal capacity in terms of sections 1 and 2 of the State Liability Act 20 of 1957.

[2] The claim is founded on alleged negligent and wrongful conduct meted out by medical and nursing staff of Magwala Community Clinic and Cofimvaba Hospital, who are said to have exposed the plaintiff to several hours of agonising and prolonged labour in circumstances where a caesarean section was indicated on admission. This resulted in Z being exposed to a prehyphenatal hypoxic-ischaemic incident which, in turn, culminated in Z “sustaining severe brain damage, as a consequence whereof he is suffering from cerebral palsy, mental retardation, autism

1 Hereinafter conveniently referred to as Z.

1 spectrum disorder, epilepsy, paralysis and arrested or delayed global developmental milestone.”2

[3] The defendant disputes liability towards the plaintiff. Initially, the defendant proffered a bald denial to the relevant allegations made in the plaintiff’s particulars of claim. Shortly prior to the trial date, however, the defendant amended its plea. Besides denying that the medical and nursing staff had been negligent, the defendant now contends:

“(a) The plaintiff gave birth to a healthy child with very good apgar scores. (b) The child experienced a tight cord around the neck and this misfortune was noted at birth. (c) The child does possess or present with severe A[utism] S[pectrum] D[isorder] but it was acquired after birth and after discharge from the hospital or, alternatively the A[utism] S[pectrum] D[isorder] may be attributable to neurometabolic disorder or genetic disorder. (d) All the other allegations are denied and the plaintiff is accordingly put to the proof thereof. (e) Alternatively, any unfortunate outcome if the court were to accept that there was one, is attributable to the tight cord around the neck that was detected on birth of the child and not negligence as alleged. (f) To the defendant’s knowledge the plaintiff and the child were at the hospital only on 11 September 2008 and not any other time before that. (g) Anything that is not consistent with this version of events is denied and must be proved by the plaintiff.”

[4] The defendant further pleaded that “the only complication known to the defendant regarding the birth of this child is the presence of a tight cord around the neck detected at birth.”

[5] The parties were initially not ad idem in relation to the issues the Court had to determine at trial stage. The plaintiff saw the issues in a particular light, whilst the defendant saw them differently. Regard being had to this unpalatable state of affairs, and with the intervention of the Court, the parties eventually agreed that the Court would be called upon to determine whether-

“1. Z suffered asphyxia during his birth at Cofimvaba hospital on 11 September 2008 which resulted in him registering low apgar score and needing resuscitation immediately after his birth; 2. he sustained cerebral palsy due to asphyxia during the birth process;

2 Otherwise referred to as the complication.

3. the defendant’s employees’ management of the plaintiff’s labour was substandard and therefore negligent; and 4. their negligence was causally linked to the baby’s asphyxia and resultant cerebral palsy.”

[6] At the instance of the parties, the issues of liability and quantum were separated in terms of rule 33(4) of the Uniform Rules of Court, with quantum being made to stand over for determination in due course, depending on the outcome of the issues on liability.

[7] The plaintiff testified that upon falling pregnant, she visited Magwala Clinic for ante-natal care. In the early hours of Monday, 08 September 2008, she experienced labour pains and attended upon Magwala Clinic, where she was examined by a nurse who mentioned that she was 1 (one) centimetre dilated. She was referred to Cofimvaba Hospital, where, upon arrival, she was further examined and still found to be 1 (one) centimetre dilated. The examination on her consisted of the two-finger test, Per Vaginal (PV) which is the insertion of two fingers in her vagina at intervals of 3 hours. No examination or monitoring was conducted after 22:00. The examination on the ensuing days followed the same pattern until the plaintiff was 2 (two) centimetres dilated. Every time she felt labour pains and approached the nurse in charge she would be told to walk around in the ward.

[8] The plaintiff could no longer pass urine on 10 September 2008. Tests could therefore not be conducted on the basis of any urine. An object3 was inserted in her, and blood was found in her urine. She became weak and lost strength. A drip was also inserted. She continued experiencing labour pains. On 11 September 2008, she was eventually transferred to the delivery room, after much agonising. Tests, including blood pressure and vaginal examinations, were conducted. In the process of that, one of the nurses pressed her on her stomach urging her to push whilst another nurse pulled the baby out by its head from beneath.

[9] Z was delivered in the early hours of 11 September 2008, at 02:00. The new- born baby did not cry and was thereupon taken to another ward and placed in a “glass structure”. Even after resuscitation, the baby did not cry. The plaintiff was discharged on the same day (11 September 2008).

3 No specificity was given regarding the nature of the “object”.

[10] Upon arrival at home the plaintiff observed that the new-born baby was still not crying. The plaintiff’s father suggested that she approach a doctor, which she did. The new-born baby was diagnosed as showing signs of having been born tired with a prognosis that his developmental milestone would be delayed. The plaintiff thereupon approached nurses at Magwala Clinic and was referred to Frere Hospital in East London, where a computerized tomography scan (CT scan) was done. The scan detected no abnormalities. It was after she had been to Red Cross Children’s Hospital in Cape Town and interacted with medical staff thereat, who cast an aspersion on the treatment the child had previously received, that the plaintiff became concerned, and ended up consulting with her attorneys of record. That culminated in the launch of the instant proceedings.

[11] Unlike other children, Z is drooling saliva; he is unable to speak and walks with difficulty. He is also not attending school.

[12] The plaintiff was not subjected to any meaningful cross-examination. The reason for this is not far to seek: there was paucity of records from which the monitoring of the birth process could be gleaned. Not even the version suggested in the plea was put to the plaintiff. It became clear, at this stage of the trial, that the defendant would no longer persist in its contention that the treatment meted out to the plaintiff and her baby had not been negligent. This is evidenced by the following interaction between the Court and the defendant’s counsel:

“MR DUKADA: As the court pleases, M’Lord. Mam, you said that you were examined at Cofimvaba Hospital on 8th [of September 2008]? MS N[…]: That’s correct, M’Lord. MR DUKADA: And you cannot remember all the assessments that were done on yourself because you were inexperienced? MS N[…]: I can do because there were not many assessment that were made there. MR DUKADA: The assessment were consistent of……… [Interrupted] COURT: Let me just [interact] with you a bit. Does the matter of being experienced in the birth process put you in a position to know what treatment should be meted out?

MR DUKADA: She has been saying that because she was new….. [Interrupted] COURT: I’m asking you in relation to the fairness or otherwise of that question. The question is assuming it was the second or third occasion giving birth, does it place you in a position to know what sort of treatment should be meted out by the hospital? What should be done, what sort of examination should be conducted? MR DUKADA: No, the question, M’Lord, relates to whether she’s able to recall what assessment were done. COURT: And you’ve got a version in relation to that? MR DUKADA: The version is simple, there’s no version because of the records, M’Lord. That is the problem. We don’t have the records. [13] The parties’ expert witnesses locked horns in relation to whether there was a causal link between the delivery of Z and the complication. On the one hand, Dr Debote, a paediatrician called to testify on behalf of the plaintiff, was of the opinion that Z suffered from cerebral palsy and bore features of autism, as well. On the other hand, Dr Keshave, a paediatric neurologist called to testify on behalf of the defendant, assessed Z as not suffering from cerebral palsy, but rather a severe autistic spectrum disorder (ASD) not causally linked to the delivery process, but occasioned post-nataly.

[14] Dr Debote explained that his clinical findings were based on his assessment of Z, who had an abnormal gait, and suffered from mental retardation and body stiffness. Z’s posture, testified Dr Debote, bears features that are common to both cerebral palsy and ASD namely; posture and mobility. According to Dr Debote autism normally affects a child’s ability to communicate and to comprehend. These features apply to cerebral palsy, as well. The difference lies therein, that in the case of autism the motor function of the child is generally intact.

[15] Dr Debote’s conclusion finds support from a report compiled by Dr Zinhle Zulu, the content of which was not placed in dispute, and who opined that Z’s “[f]eatures are suggestive of changes due to a hypoxic ischemic and encephalopathy due to acute asphyxia most likely occurring at term” and that there were no “features of genetic abnormalities noted.”

[16] Asked what hypoxic-ischemic encephalopathy (HIE) signifies, Dr Debote explained:

“Hypoxic-ischemic encephalopathy relates to brain injury that is secondary to hypoxia or a lack of oxygen. To nowadays when we classify or we talk about brain injury, we normally using terms like hypoxia unless we have evidence that they [. . .] - so we normally term babies with brain injuries as neonatal [inaudible] that are possible causes. So in this case Dr Zinhle will comment to say that this child had a brain injury that was secondary to lack of oxygen supplied to him. And also important is the timing of that serious brain injury that occurred because if you go to the end it says “most likely occurring at term”. Now in terms of interpretation of this period “term” when it comes to radiological features it relates to the brain that is concerned to be at least at term or [inaudible] concern from 35 weeks onwards.”

[17] With reference to the results of the magnetic resonance imaging (MRI) scanning conducted on Z, Dr Debote testified that the imaging therein was consistent with harm having occurred due to HIE and not as a result of a progressive or genetic disorder. The MRI reports point to lack of oxygen and an injury to the brain in the early stages of foetal development with hypoxia as a common feature.

[18] Dr Debote’s attention was drawn to the fact that at birth Z had not cried, he was taken away from his mother for resuscitation and at that point had a low Apgar score. He was adamant that those features were an indication that at birth, Z had been compromised.

[19] Dr Keshave’s report, on the strength of which he testified, is that Z has “syndromic features and features of autistic spectrum disorder with global developmental delay, intellectual disability and new onset of symptomatic epilepsy confounded by-self mutilating behaviour”.

[20] Dr Keshave explained that “global developmental delay” means delay in multiple fields of development, and that “intellectual disability” implies abnormal cognitive age and IQ4. He also testified that Z’s epileptic seizures were of new onset, compounded by his behaviour of banging his head against hard objects. Based on the information at his disposal, Dr Keshave was of the view that an underlying neuro-metabolic disorder had to be excluded. Z had normal CT scan results at one year of life, but abnormal MRI scan results at the age of nine. He sought to attribute this to head-banging signified by a huge haematoma on the

4 Intelligence Quotient (IQ).

6 forehead which resulted in Z being eventually seen by a neurosurgeon. His examination of Z showed features of severe ASD of the non- verbal group. According to Dr Keshave, 80% of children with neonatal encephalopathy secondary to birth asphyxia normally present with seizures within 24 hours of life. That was not what the plaintiff had told him happened with Z. He was also of the view that the child would have been checked before discharge; he may not have shown any signs of encephalopathy, but only records would support this.

[21] According to Dr Keshave, the following were not in keeping with a child who had sustained significant urging at birth:

(a) the resuscitation of Z upon his birth;

(b) Z’s referral to the nursery ward;

(d) the administration of the B[accille] C[almette-] G[uerin] vaccine on Z; and

(e) the discharge of the plaintiff and being allowed, together with Z, to return home after birth.

[22] The evidence of Dr Keshave changed course when he was asked: “does [the absence of records in this matter] disadvantage . . . your opining”, to which he responded:

“It does because we don’t know what happened. For example we don’t know if the m[other] took [the] baby home and came back, if there was infection, if there were seizures, if there was hypoglycaemia we don’t know what happened to bring that child back again. And that’s where the disadvantage is for us.”

[23] The following questions and answers of how the trial unfolded are also quite revealing:

“MR DUKADA: The mother says that she was discharged from the hospital by some 4 days thereafter. The child was … [Inaudible] to a certain General Practitioner. What is the significance of that? Especially with respect to the Apgar scores that were 4/10 and later 8/10?

DR KESHAVE: Look, I don’t know what the reason was for the child being ill. And what happened, there’s no notes to indicate it. But when looking at those A[merican] C[ollege

of] O[bstetricians and] G[ynecologist]s’ criteria and VOLE’s criteria around the time of birth it makes neonatal and encephalopathy, that floppiness, less slightly. But like I said I’m not sure what the reason was [the mother] coming in at 4 days.

COURT: Normally it’s something that would have been recorded which could have been of assistance?

DR KESHAVE: Yes, so we don’t know the reasoning for coming in at 4 days. Like I said it could have been infection or the baby not feeding, we’re not sure.”

[24] At the hearing of this matter, Mr Dukada, counsel for the defendant, quite correctly so in my view, conceded that the absence of records demonstrative of appropriate care meted out by the relevant hospital employees to Z, rendered the case hard to defend on the basis that there was lack of negligence,5 leaving the sole issue for determination being whether such negligence resulted in the complication that is at the heart of this matter.

[25] Regard being had to the fact that on the issue of causation the views of experts are divergent, it is required of this Court to determine the extent to which the opinions advanced are founded on logical reasoning, and how the competing sets of evidence stand in relation to one another, viewed in the light of probabilities.6

[26] In Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH7 it was held

“… an expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possible where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”8

5 See M obo M v Member of the Executive Council for Health of the Gauteng Provincial Government [2018] ZAGPJHC 77 (20 April 2018) at paras 37 and 40; also see Mbola obo M v Member of the Executive Council for Health, Eastern Cape [2018] ZAECMHC 67 (6 December 2018) at para 47. 6 Michael v Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA); Louwkens v Oldwage 2006 (2) SA 161 (SCA) at para 27. 7 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A); Commissioner for the South African Revenue Service v Stephney Investments (Pty) Ltd [2015] ZASCA 138; [2016] 1 All SA 1 (SCA); 2016 (2) 608 (SCA) at para 16. 8 Id at 371 F-G.

[27] Dr Keshave’s main contention that Z has ASD to the exclusion of cerebral palsy was not pertinently raised in the pleadings. The contention was also not raised during the parties’ conferences, hence it does not form part of the pre-trial minutes that are part of the record in these proceedings. In any event, Dr Keshave made concessions on material aspects of the main case that detracted from the nub of his testimony. He was non-committal in relation to whether there had been a sentinel event or neonatal encephalopathy. Having not himself seen the CT scan results, he could not tell whether the scan was properly taken and read, and could not vouch for the correctness of the note relating thereto. He also could not dispute that Z was compromised at birth and needed resuscitation, possibly due to insufficient oxygen supplied to his brain. He conceded that his conclusions were only tentative, and did not deserve of being pitched higher than that. He also conceded that asphyxia could well have triggered the need to resuscitate Z. He did not dispute Dr Zulu’s conclusion that Z’s MRI imaging features were suggestive of changes to a hypoxic- ischaemic encephalopathy due to acute profound asphyxia most likely occurring at term. He was not able to exclude Z’s asphyxia occurring at birth.

[28] For these reasons, and without casting an aspersion on the experience and expertise of Dr Keshave as a paediatric neurologist, I am persuaded to accord weight to and give preference to the testimony of Dr Debote, than that of Dr Keshave. The version of Dr Debote finds support from all other experts who were of the view that Z presents with cerebral palsy, despite Z also presenting with ASD. Dr Debote’s evidence is founded on logical reasoning, viewed in the light of probabilities.

[29] I am further satisfied that there is a causal link between the negligent conduct of the Cofimvaba Hospital staff who monitored the plaintiff and Z during the delivery process, and the severe brain damage that Z is now suffering from. Factual causation has, in my view, been established,9 with the result that the merits of the case ought to be decided in the plaintiff’s favour.

[30] Subject to what is stated herein under, there is no reason why costs of suit incurred to date should not be awarded in favour of the plaintiff. The matter is

9 Cf AN v Member of the Executive Council for Health, Eastern Cape [2019] ZASCA 102; [2019] 4 ALL SA 1 (SCA).

9 sufficiently complex and warranted the involvement of two counsel, hence costs of two counsel will be allowed.

[31] The costs occasioned by the postponement of 17 February 2020 were reserved. The parties are not in agreement in relation to what should become of those costs. On that day, the matter was postponed to the following day (18 February 2020) because the parties had not defined the issues properly. I have alluded to this as having been an unpalatable state of affairs in the introductory part of this judgment. The plaintiff is of the view that the defendant should bear the costs of that day. It was argued that, apart from the general conduct of the defendant in conducting the litigation, the defendant belatedly filed an amended plea after the matter had been declared trial ready, which warranted a further definition of the issues for determination by the Court. The parties thereupon embarked on defining the issues on 17 February 2020, resulting from the belated amendment. The defendant, on the other hand, is of the view that the blame for the matter not proceeding on 17 February 2020 should be laid on the doorstep of the plaintiff. It was contended that the plaintiff introduced a new expert report compiled by Dr Debote which in turn introduced a new dimension in relation to the history of the attendance of the plaintiff at the hospital upon her discharge. This, argued Mr Dukada, resulted in the original notice of intention to amend being withdrawn and substituted with a new one.

[32] Until 30 October 2019 the parties had been ad idem that the issue for determination was “whether the brain injury [had] been caused by the negligent staff of Cofimvaba Hospital.” I certified the matter trial ready during December 2019 understanding the issue to have been solely one of negligence. It bears mentioning that at some point, way back on 05 February 2019 when the matter served before Laing AJ, it was postponed to 25 March 2020 “for the purpose of settlement.” These are the twists and turns taken by this litigious matter.

[33] I have difficulty aligning myself with the criticism levelled at the plaintiff’s camp for delivering a notice timeously during January 2020 in respect of a trial that was set down for hearing on 17 February 2020. Rule 36(9) of the Uniform Rules of Court10

10 Rule 36(9) of the Uniform Rules of Court (The Rules) states that:

10 still permitted the plaintiff to file expert reports 15 days before the hearing. In any event, no objection was raised to Dr Debote testifying on the basis that the notice to call him and the relevant expert summary had been delivered out of time.

[34] None of the parties’ contentions explains why the parties saw issues for determination differently. In terms of rule 37A(2)(c) of the Rules, the primary responsibility remains with the parties and their legal representative to prepare properly, comply with all rules of court, and act professionally in expediting the matter towards trial and adjudication. That which was achieved by the parties after the intervention of the Court ought to have been achieved even during the previous week, which would then have resulted in the matter running on 17 February 2020. The Rules also contain machinery for instances such as these, where one party is not being cooperative with the other in the conduct of the proceedings. In terms of rule 37(8)(a) the plaintiff could have resorted to a Judge to hold a conference in chambers pointing out the defendant’s lackadaisical attitude and inviting the Judge to facilitate the couching of a pre-trial minute defining the issues more appositely. None of these was done.

[35] In my view, both parties are to blame for the matter not proceeding on 17 February 2020. It seems axiomatic that each party is liable for the payment of its own costs.

[36] I make the following order:

1. The defendant is held liable for such damages as the plaintiff shall prove or as might be agreed upon between the parties, arising from the negligent management of the plaintiff’s labour and delivery of her son, Z[…] N[…], at Cofimvaba Hospital on 11 September 2008. 2. The defendant shall pay the plaintiff’s taxed or agreed party and party costs incurred to date on the high court scale, such costs to include— 2.1 costs of two counsel; and

“No person shall, save with the leave of the court or the consent of all parties to the suit, be entitled to call as a witness any person to give evidence as an expert upon any matter upon which the evidence of expert witnesses may be received unless he shall—

(a) not less than fifteen days before the hearing, have delivered notice of his intention so to do; and (b) not less than ten days before the trial, have delivered a summary of such expert's opinion and his reasons therefor.”

2.2 the qualifying fees, charges or expenses, if any, of the following experts: 2.2.1 Dr G Booysens Inc. Diagnostic Radiologists; 2.2.2 Dr S Burgin, Obstetrician and Gynaecologist; and 2.2.3 Dr W M Debote, a Paediatrician. 3. The plaintiff shall, in the event that the parties do not agree on costs, serve a notice of taxation on the defendant’s attorneys of record.

4. The plaintiff shall further allow the defendant 14 days to make payment of the taxed costs after the date of the Taxing Master’s allocator, whereafter the defendant shall pay interest on the costs at the legal rate then prevailing to date of payment.

5. Each party shall pay its own costs of 17 February 2020.

______S M MBENENGE JUDGE PRESIDENT OF THE HIGH COURT

Counsel for the plaintiff : T M Ntsaluba SC (with him, S Y Malunga)

Attorneys for the plaintiff : L Peko Attorneys Butterworth

C/o Sigabi & Associates

King Williams Town

Counsel for the defendant : P Dukada

Attorneys for the defendant : The State Attorney

East London

C/o Shared Legal Services King Williams Town

Date action heard : 18 and 19 February 2020, and

20 March 2020.

Date judgment delivered : 17 June 2020.

(Judgment delivered in Portable Document Format by electronic mail in terms of paragraph 68 of the Directions for Management of the High Court, Eastern Cape during the National State of Disaster, dated 12 May 2020).