Gauteng health MEC not guilty of medical negligence, rules SCA

The Supreme Court of Appeal (SCA) has overruled a full bench of the Johannesburg high court, finding that the Gauteng heath and social welfare MEC is not liable for damages suffered by a baby who suffered a brain injury at birth. 

The MEC appealed against the finding by the high court of medical negligence, arguing that medical staff at Tshwane District Hospital were not negligent in the care and treatment of a mother, identified only as Ms M. 

Baby L was born at the hospital on May 18 2010. His mother arrived at the hospital in the early hours of the morning as an "unbooked" patient with antenatal records and was admitted at 1.45am in the latent stage of labour, with ruptured membranes. Baby L was born at 3.10pm by natural delivery and was limp, acidotic and had to be placed on a ventilator. 

Three years later, Ms M instituted high-court action claiming damages against the MEC for medical negligence on the part of hospital staff. In the summons she alleged that her baby had suffered a hypoxic-ischaemic encephalopathy (HIE or brain injury) during birth because of negligence and this had caused cerebral palsy. 

Ms M said the decision for her to have a caesarean should have been made at 1.10pm and that CTG monitoring should have been done constantly during her time in the hospital. If this had been done, irregularities in the baby’s heartbeat would have been observed sooner, the decision to perform a caesarean would have been made before the brain injury happened

Ms M alleged various acts of negligence, the main being that her labour was unduly prolonged and that medical staff failed to take a decision at 1.10pm to deliver the baby by caesarean section. She said Baby L had suffered the brain injury because he had suffered a lack of oxygen during the birth process and this had resulted in cerebral palsy, mental retardation and epilepsy.

The MEC denied liability, pleading that there was no negligence on the part of the hospital staff. The MEC said any duty of care owed to Ms M and the baby she was carrying was subject to the reasonable financial, human and other resources available to the department to equip staff and maintain the hospital.

It was asserted by the MEC that the hospital rendered the best service it could to Ms M. However, in the event of the court finding that the monitoring of the foetus was insufficient, such deficiency was not causally connected to the cerebral palsy suffered by L. It was argued that Ms M had been connected to a cardiotocography (CTG) machine. The machine monitoring gave a reading that was at first “non-reassuring”, but this was resolved by delivering treatment, and continued monitoring showed the readings improved to “reassuring with good variability”. 

Ms M was then monitored with a Doppler at 4am, 6am, 8am and 10am, during which time the foetal heart rate was consistently within the normal range of 110 to 160 beats per minute. Another CTG assessment was performed at 6.24am. The reading was "reassuring" and the senior midwife asked for another assessment to be done in an hour. But this was not done. 

Ms M went into the first stage of active labour at 7.30am, and a later CTG test was again “reassuring”. More Doppler tests and CTG monitoring showed no problems and Ms M was transferred to the labour ward. 

At 1.30pm it was noted that the foetal heart rate had risen to 160 beats and at 2.30pm foetal distress was diagnosed. At 2.30pm Ms M was prepared for an emergency caesarean section. But by 2.45pm she was fully dilated, and after being wheeled into theatre she delivered baby L naturally at 3.10pm.

In her action against the MEC, Ms M said the decision for her to have a caesarean should have been made at 1.10pm and that CTG monitoring should have been done constantly during her time in the hospital. If this had been done, irregularities in the baby’s heartbeat would have been observed sooner, the decision to perform a caesarean would have been made before the brain injury happened. 

The hospital’s failure in this regard, she said, amounted to substandard medical care. 

She told the court that radiologists had performed MRI scans on L when he was four years and five months old. They found that the child had suffered a brain injury at 37 weeks with indications of an acute profound event. 

The MRI imaging indicated that something severe had happened to the foetus, but did not show the period when the injury occurred. 

Paediatric neurologists testifying for the MEC agreed that L suffered from "mixed cerebral palsy" with physical impairments that severely restricted L’s movements. They could not agree on whether there could be other causes for the cerebral palsy other than a brain injury suffered during birth.  

A paediatric neurologist examined L when he was five years and 11 months old. He found evidence that though the brain injury could have occurred after birth, there was no evidence to suggest this. He agreed that the complete cause of L’s cerebral palsy was uncertain. 

Obstetricians for Ms M and the MEC all agreed that the cerebral palsy L suffered had been caused by oxygen deprivation during birth, but the time of the injury was undefined. All agreed that the foetal heart rate had been normal until 2pm, at which time the foetus would have been "likely, overall, in a good condition at that stage".

The MEC took the case to the Supreme Court, where judge Caroline Heaton-Nicholls on Friday found that the conclusion reached by the full court, that the standard of care afforded to Ms M was substandard, cannot be sustained

The high court had dismissed Ms M’s claims that L’s brain injury was caused by medical negligence. But she appealed the matter and took it to the full court (comprising three high court judges), which overturned the decision of the trial court and held that the MEC was 100% liable for any proven or agreed damages arising from L’s brain injury. 

The MEC took the case to the Supreme Court, where judge Caroline Heaton-Nicholls on Friday found that the conclusion reached by the full court, that the standard of care afforded to Ms M was substandard, cannot be sustained. 

She said the hospital’s decision to not place Ms M on continuous CTG monitoring despite a concerning early reading was warranted as early treatment had seen her condition rapidly improve. The full court’s earlier finding that the early reading demonstrated a degree of monitoring that required closer than standard care ignored the positive response to the early treatment. 

Heaton-Nicholls said it was necessary to know whether the brain injury had been an acute profound injury or a prolonged partial injury. 

“An acute profound injury is severe, with total or near-total deficient supply of oxygen. It is of short duration and sudden onset, and generally occurs 30 minutes before delivery. A prolonged partial injury is less severe, with partial asphyxia. It develops slowly over several hours. It is often preceded by a deteriorating foetal heart rate that gives a warning of developing lack of oxygen,” was the explanation given by the MEC. 

"We agree that Ms M did not establish negligence on the part of the hospital staff and the MEC,” the court held in ordering that the full court decision in her favour be set aside.