Dr Yash Naidoo, Case Manager at Medical Protection, looks at a recent case at the Supreme Court of Appeal

In the case The Member of the Executive Council for Health, Eastern Cape v DL obo AL, the mother of a child born with cerebral palsy sued the MEC for Health, Eastern Cape, for alleged medical negligence by the staff involved in the delivery of the child at Midlands Hospital in Graaff-Reinet.

The mother’s case was that her child developed cerebral palsy because of the hospital’s failure to monitor her adequately and to take appropriate action when foetal distress arose. Her main contention was that the staff’s failure to monitor her in accordance with the National Maternal Guidelines published in 2007 constituted a negligent omission, which caused the foetus to suffer a hypoxic ischaemic encephalopathy.

Had proper monitoring taken place, a change in condition would have been timeously picked up and the child’s delivery expedited, preventing the brain injury. She further alleged that the staff failed to expedite the delivery when the circumstances warranted it, and that a c-section was not performed within one hour of the decision to operate. The MEC’s position was that the staff were not negligent, and that there was no causal link between the negligent omission alleged by the mother and the brain injury ultimately sustained by the child. The trial court found that the staff were negligent and that their negligence caused the harm, and the mother was successful in her claim. The MEC took the decision on appeal to the Supreme Court of Appeal (SCA).

The SCA dealt briefly with the well-established tests for negligence and causation in medical negligence claims. It reiterated that the proper approach for establishing the existence of negligence laid down in Kruger v Coetzee[1] remains the same, namely reasonable foreseeability and the reasonable preventability of damage. The court emphasised that what is required is foresight of the reasonable possibility of harm ensuing; foresight of a mere possibility of harm does not suffice.

The hospital staff would be negligent if they failed to foresee the possibility of harm occurring in the particular circumstances of the case, where similarly qualified health professionals in the same position would have reasonably foreseen this possibility and would have taken steps to prevent it. With regard to causation, the question was whether the brain damage suffered by the child would have been avoided if the hospital staff had properly monitored the mother and acted appropriately based on the results. If so, causation is established and if not, then it is not established, and the claim must fail.

The SCA considered the evidence of the various experts who testified in the trial court. It accepted the concurring views of two paediatric radiologists, namely that the child’s brain injury was an acute profound hypoxic ischaemic injury sustained during labour, occurring in a matter of minutes. Unlike the high court, it disregarded the evidence of another expert who opined that the sentinel event happened over a longer period of time, because this evidence was not supported by facts and contrary to the joint opinion of the radiologists.

The SCA concluded that despite the fact that the monitoring of the foetal heart was not in strict accordance with the 2007 maternal guidelines, the facts of the case cumulatively considered did not suggest that the nurse who attended to the mother at the relevant time could reasonably have foreseen that harm would have ensued. Nor did the facts suggest that a reasonable health professional in the position of that nurse would have foreseen any reasonable possibility of harm ensuing and taken steps to prevent it. The appeal court also found, based on the facts, that the reaction time of the staff after the decision to operate was reasonable.

On causation, the SCA found that crucial concessions by the obstetrician who testified on behalf of the mother, led to the conclusion that even if it were accepted that some negligence were to be found in the monitoring of the mother or the failure to deliver the child within one hour from the decision to perform a c-section, there was no proof on a balance of probabilities of a causal link between these omissions and the brain injury suffered by the child. The SCA highlighted the testimony by this expert, which was that she could not say that the sentinel event would not have happened if the operation had been performed within an hour.

The appeal was upheld, and the mother’s claim was dismissed.