In a recent case of MEC of Health and Social Development of the Gauteng Provincial Government v M (272/2022) [2024] ZASCA 21, the Supreme Court of Appeal found that there was insufficient evidence to establish whether a child born with a permanent disabling brain injury was due to hospital staff being negligent.
While to some this brain injury was avoidable and the result of negligence was on the part of hospital staff, the evidence showed otherwise.
The opposing cases
In this case, a mother gave birth naturally to a child at 15h10, at the Tshwane District Hospital on 18 May 2010. This is after the mother arrived at the hospital at the early hours of the morning of that day, as an 'unbooked' patient with no antenatal records and was admitted at 01h45 in the latent stage of labour. Unfortunately, the child sustained an injury to his brain which resulted in him suffering from cerebral palsy.
His mother sued the MEC for damages, claiming the medical staff at the hospital were the cause of the child's hypoxic-ischaemic encephalopathy (brain injury) and cerebral palsy. The crux of the allegations made against the hospital's staff were that there was inadequate foetal monitoring including the lack of continuous electronic monitoring and the mother's labour being unnecessarily prolonged. Had this been done, abnormalities in the condition of the foetus would have been detected, a caesarean section would have been performed (two hours before the child was born) and the injury to the child's brain would have been avoided.
The MEC denied the allegations of negligence, pleading that any duty of care owed to the mother and foetus was "circumscribed by and subject to the reasonable financial, human and other resources available to the Department of Health to equip staff and maintain the hospital"1. Furthermore, the MEC maintained that if the monitoring of the foetus was found to have been insufficient, such deficiency was not casually connected to the cerebral palsy suffered by the child.
On the evidence
Scans taken of the child's brain demonstrated features consistent with an acute profound hypoxic ischaemic injury. Though they were unable to determine the time of the incident, the radiologists agreed that an acute profound event probably occurred in the perinatal period (the period around the time of birth).
An acute profound event is an event that occurs suddenly and lasts for a short time. It is often described as a "sentinel event". It is not a progressive or partial prolonged event. Whilst the evidence to the effect that the child suffered an acute profound brain injury during labour or delivery was overwhelming, there was no evidence of a sentinel event and thus no evidence of the precise time at, or period in which the event occurred.
What the court found
As there was no evidence of a sentinel event, the contention that a sentinel event would have been detected and avoided if reasonable care had been taken is based on the reverse reasoning that because the child suffers from cerebral palsy, there must have been a detectable and avoidable sentinel event during his birth. The courts have cautioned against commencing with an unfavourable outcome and working backwards in search of a cause.
In Goliath v MEC Health, Eastern Cape2, the court cautioned against finding a doctor negligent simply because something went wrong. In Goliath, the court cited, with approval, remarks made by Lord Denning in Hucks v Cole [1968] 118 New LJ 469 (1993) that "to hold a doctor negligent simply because something went wrong, would be to impermissibly reason backwards from effect to cause".
Based on the overwhelming evidence, it was accepted that the child had sustained an acute profound hypoxic ischaemic event which occurred intrapartum (the period from the onset of labour to the delivery of the placenta). However, without evidence of a sentinel event, the injury sustained was not reasonably foreseeable, continuous electronic foetal monitoring would have made no difference, a caesarean section was not indicated, and the hospital's staff were not negligent.
This case is yet another word of caution against looking backwards in a medical negligence case in search for a cause of an unfortunate outcome. It confirms a fact that something going wrong and blameworthy and causative conduct do not necessarily go hand in hand.
Whilst criticism can and is levied against hospitals for hiding behind their limited "financial, human, and other resources available to equip, staff and maintain hospitals", it is a sad reality that many hospitals and clinics in our country are hamstrung by a lack of funds, equipment and skilled staff, and are forced to work within the limits of their predicament.
The mother of the child instituted action on 15 January 2014 and it has taken 10 years to reach a final decision. As the cost of taking care of children living with cerebral palsy comes at a high price and the longevity of many children with severe cerebral palsy may not be much more than 10 years, in such instances, from a timing perspective, the slow turning wheels of justice fail to deliver the justice sought.
1 - MEC of Health and Social Development (n1) para 6.
2 - Goliath v MEC Health Eastern Cape 2015 (2) SA 102 (SCA) para 9
