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 “IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

                                                    CASE NUMBER: 1292/2016

In the matter between:-

NTOMBIZILE ANNA MTHOMBENI obo MINOR                                              Plaintiff

And

MEMBER OF THE EXECUTIVE COUNCIL

FOR THE DEPARTMENT OF HEALTH                                                             Defendant

JUDGMENT

A.        INTRODUCTION

[1]        Plaintiff, Ntombizile Annah Mthombeni instituted an action for damages on behalf of her minor daughter, Tshepiso Mthombeni (Tshepiso) against the defendant, the Member of the Executive Council for the Department of Health for damages arising from medical negligence. A separation of quantum and merits was ordered and the trial proceeded on merits only.

[2]        Plaintiff in her particulars of claim alleged inter alia that:

“7.        At all material times hereto there was an oral, alternatively a tacit, further alternatively an implied agreement between plaintiff and the relevant staff at the said Clinic. (alternatively there was a legal duty on the said staff) in terms of which the said staff:

a)           would advise , treat and care for plaintiff and for her baby and  would perform their duties in respect of the plaintiff and her said baby in a professional manner and with such professional skill as is reasonable for such staff and not in a reckless or negligent manner;

b)           would keep the clinic open for members of the public and for the plaintiff on a 24 hours per day basis;

c)           Alternatively to (b) above, would provide in a prominent place at the clinic contact particulars where members of the staff of the clinic can be contacted in case of emergency.

8.         In breach of:

(a)         the terms of the said agreement, alternatively

(b)         the said legal duty

and in an unprofessional and reckless, alternatively grossly negligent, further alternatively negligent manner the said staff wrongfully performed their duties in respect of the plaintiff and her baby. The grounds of recklessness or negligence are one or more or all of the following:

8.2       On the date of Tshepiso’s birth the said staff;

a)           failed to keep the clinic open, to remain in attendance and to assist the plaintiff with the birth of the baby;

b)           failed to provide contact particulars in a prominent place at the clinic through which members of the public, and in particular the plaintiff, could contact them in the case of an emergency;

c)           failed to properly and professionally attend to the baby after their arrival at the clinic and in particular they failed to administer oxygen to the baby in circumstances when it was reasonably necessary for them to do so;

d)           failed to enlist the services of a gynaecologist, alternatively of a duly qualified doctor or other suitable specialist to examine and properly treat the baby in circumstances when it was reasonably necessary to do so.

e)           Failed to adhere to the standard of practice of a reasonable sister or nurse in their respective positions;

in order to ensure that patients, and in particular the plaintiff, who visit the clinic are attended to without delay and to prevent the plaintiff’s baby from suffering from brain and other injuries”.

B.        COMMON CAUSE

[3]        It is common cause that:

3.1       that the Makgobistad clinic (the clinic) is a government institution which should be open to the public on a 24 hour basis;

3.2       that all the relevant times, medical staff involved in the treatment of plaintiff at the clinic were employed by defendant and were acting within the course and scope of their employment.

3.3       Tshepiso was born in a motor vehicle. The birth was a normal vertex delivery (NVD).

3.4       The maternity case record was lost. The Road to Health Card (RTHC) was incomplete.

3.5       Tshepiso was diagnosed with Cerebral Palsy (CP) at the age of 6 months.

C.        ISSUES IN DISPUTE

[4]        The only issue in dispute whether the medical staff at the clinic were negligent in their actions on the day of Tshepiso’s birth and whether such negligence caused CP.

D.        JOINT MINUTES

[5]        The specialist obstetricians, Dr Sevenster and Dr Malebane in their joint minutes agree on the following:

            “4.1     The antenatal course and findings:

1.2.1        There were no antenatal records made available to us for perusal and thus in the absence of the antenatal records pertaining it’s course, it is not possible for an obstetrician to comment with any degree of certainty on whether the poor outcome could have been related to any antenatal circumstances and if in any way were preventable;

1.2.2        The patient attended the Makgobistad antenatal clinic several times although this is an unverified statement by the patient.

                        Labour and delivery

1.3.1        There were no records provided regarding or referring to the birth of the baby in the car, the condition of the baby and what actions were taken. The account of events about the baby being delivered in the car, is patient’s version and contradicted by the records in the maternity register.

The absence of any records pertaining aforementioned makes it impossible for the obstetrician to comment with certainty on:

·    Whether there was negligence on the part of the nursing staff if they were present;

·    Whether negligence was the cause for the poor outcome;

·    Whether the poor outcome was preventable

1.3.2       The mother and baby was discharged the same day.

The MRI report

1.4.1        Both the radiologists are of the opinion that the dominant picture is the acute profound hypoxic ischemic brain injury. This result indicates that aforesaid injury occurred in the brain of a term baby but does not indicate a date or timing of the brain insult.

4.2       Disagree on the following:

1.1   Dr C. Sevenster is of the opinion that according to the version of the patient, there was no nursing staff when she arrived at the clinic on 17 December 2003.

Dr M Malebane is of the opinion that there were nursing staff present at the clinic based on the entry in the maternity register.

1.2   Dr C. Sevenster is of the opinion that according to the version of the patient, she delivered unassisted in the vehicle which transported her to the clinic.

Dr M Malebane is of the opinion that the patient delivered in the clinic although he cannot confirm whether or not she was assisted by the nursing staff as there are no records to this effect”.

[6]        In the joint minutes of the neurosurgeons dated, 1 September 2017, Dr TP Moja and Dr HM Marumo agree on the following:

“5.1     The radiologists’ findings that the MRI scans are indicative of hypoxic ischaemic brain injury.

5.2    The radiologist also agreed that the MRI study suggests that genetic disorders as a cause of the child’s brain damage is unlikely.

5.3    The radiologist’s recommendations that the cause and timing of the hypoxic ischaemic injury should be deferred to the obstetricians and neonatologists”.

[7]        The radiologists, Dr Kamolane and Dr Jogi, agree on the following:

“6.1     scan is indicative of a hypoxic ischemic injury of a term brain at a chronic stage of evolution.

6.2    dominant pattern of injury in this case is acute profound in nature.

6.3    findings of the MRI study suggest that genetic disorders as a cause of the child’s brain damage is unlikely.

6.4    MRI findings suggest that inflammatory or infective causes are unlikely as causes of the child’s brain damage.

6.5    A review of the clinical and obstetrical records by appropriate specialists in the field of neonatology and obstetrics are essential in determining the cause and probable timing of this hypoxic ischemic injury”.

[8]        The paediatric neurologist, Dr Keshave and Dr Mogashoa agree on the following:

·         Tshepiso has mixed cerebral palsy.

·         There is no genetic disorder.

·         The scan is indicative of a hypoxia ischaemic injury of a term brain at a chronic stage of evolution.

·         The dominant pattern of injury is acute profound in nature.

·         Infective or inflammatory causes are unlikely as a case of the child’s brain damage.

·         It is difficult to identify when the hypoxia event occurred.

·         According to the mother the child was able to suck, she was well and active after birth. The RTHC shows that there is only deterioration in growth noted at 9months of age. If this was severe hypoxia from birth asphyxia Tshepiso would have displayed signs of encephalopathy in the neonatal period and earlier than 9months of age”.

The antenatal notes and the medical notes after delivery are important to   ascertain when the insult occurred.

[9]        The specialist paediatricians, Dr Humphrey Lewis and Dr Kganane in the joint minutes agree that:

·       “The pregnancy of Ms Mthombeni was uncomplicated, and that she attended the antenatal clinic regularly at Makgobistad Community Health Centre.

·     Her labour pains started at 03h00 on the morning of 17 December 2003. The family was unable to contact the ambulance service and was taken to the Makgobistad clinic in a private car.

·      When they arrived at the clinic at some time before 08h00, there were no nurses present at the clinic. She was surprised as this clinic is meant to provide a 24 hour service to the community, including maternity care.

·     The child was born in the car outside the clinic, without medical assistance at about 08h15. The infant did not cry or move following delivery.

·    Ms. Mthombeni reports that the nursing staff attended to her and the baby at about 08h30.

·      Her child was taken into the clinic for care. There are no neonatal notes available to record which observations were performed or what the clinical status of the infant was.

·       The birth mass of the infant was 2600g, which is small for gestational age.

·       Later on 17 December 2003, she was sent home with her baby.

·      She noted that the infant slept all night and the following day.

Dr Lewis: This “sleepiness” was probably related to a decreased level of consciousness reflecting a neonatal encephalopathy, at least a Sarnat grade II encephalopathy.

·      Developmental delays were noted from the age of 6 months of age. She only started to sit at the age of 4 years.

·      She suffers from cerebral palsy of the spastic quadriplegic type, and her motor function is classified as GMFCS level V.

·       The paediatricians experts defer to the opinion of the joint minutes of the Neurologist’s regarding the radiological findings, which suggest that the insult was caused by an acute profound hypoxia event”.

8.2     Dr Lewis noted the following:

·       The fact that no nursing staff was available at the clinic to assist Ms. Mthombeni in the second stage of labour is substandard and unacceptable nursing care. As a result no fetomaternal monitoring was possible.

·       There were no nursing staff available to attend to the newly born child following her delivery, and there were no records kept regarding the child’s condition or care following its delivery. The lack of nursing care and record keeping is substandard and unacceptable.

·        Not resuscitating the neonate, or delayed resuscitation would aggravate any underlying fetal condition that was present during the intrapartum period.

·        Her current neurological condition is related to the lack of immediate neonatal care following her delivery".

Dr Kganane noted the following:

·      There is a concern about the veracity of the fact that the mother gave birth before arrival (BBA). We would need a witness, namely the general attendant, that was apparently present during the birth of the baby.

·      The RTHC shows the initial vaccinations (BCG and Polio drops) were given much later after the birth of the child. This is unusual unless the child was seen for the first time at the clinic on the day of vaccination.

·       There are no corroborating notes for the delivery and subsequent maternal and neonatal examination and therefore sequence of events become difficult to confirm or refute.

·       Usually growth parameters in severe birth asphyxia patients are symmetrically decreased but this patient has normal growth parameters.

·        The child has had no epileptic episodes, which is uncommon in severe birth asphyxia.

·        Based on the abovementioned facts, I am still not convinced that birth asphyxia is the cause of this cerebral palsy”.

E.        EVIDENCE

[10]      The first witness for plaintiff was Dr Tshepo Kau Peter Moja (Dr Moja), a neurosurgeon since 2006. From 2009 to 2012, he worked as the Principal Specialist Neurosurgeon at 1 Military Hospital in Pretoria and since April 2013 to date he is in private practice at Muelmed Mediclinic in Pretoria.

[11]      Dr Moja examined Tshepiso on 8 July 2016 and compiled a report. He had sight of the RTHC and said the Apgar score was not filled in and there were no measurements of Tshepiso’s weight, length and head circumference. He explained that the purpose of the Apgar score is to give a numerical value to a baby’s ability to breath, take oxygen and respond neurologically after birth. It is done at one minute, five minutes and in some cases ten minutes intervals. He said Tshepiso was diagnosed with CP when she was 6 months old. When he assessed her, she was 12 years old and she presented with the following problems:

“(1)      Speech and language problems - she has difficulty in comprehension and constructing sentences. She is able to appreciate her surrounding and focus on objects.

 (2)      She is not attending school.

 (3)      Weakness of her arms and legs.

 (4)      She cannot walk. She is wheelchairbound.

 (5)      She has no control of her bladder. She wears a napkin.

 (6)      She needs assistance with basic activities of living – bathing, dressing and feeding. She needs constant supervision.

 (7)      She does not suffer from epileptic seizures”.

[12]      Dr Moja accepted the radiologist finding of a “hypoxic ischemic injury of a term brain at a chronic stage of evolution”. He explained that hypoxia means that there was oxygen starvation of the brain and ischemic implies that in addition to the lack of oxygen, there was also poor flow of blood to the brain, and these two led to the brain injury. A term brain is the brain you will find in a term baby or neonate that is fully developed for the gestational age. He explained the term chronic stage of evolution means, “the injury is a process over time. There is the initial insult and then there are subsequent events that occur that eventually manifest as chronic in the last stage. In other words this is not an instantaneous occurrence. He said the radiologists agree that “the dominant pattern of injury in this case is acute profound in nature”. Dr Moja explained that ‘acute’ means, immediate onset as opposed to a gradual onset of the insult and profound means that it was extreme. The insult was immediate and extreme. The MRI report suggests features of prolonged hypoxia and acute hypoxia.

[13]      Dr Moja said when looking at the MRI reports there was an acute profound event, that is total oxygen deprivation for a very short period which lasted for less than five minutes but there is the second element which means that at that point there was lack of oxygen but it was not total lack of oxygen, it was prolonged hypoxia. Where you have an acute profound hypoxia and subsequently also have a prolonged period of hypoxia, you have ongoing damage that may not be immediately evident and may manifest later as the baby starts to develop normal milestones. He said the impact on the brain occurred but did not stop instantaneously but developed over a period of time. Investigation and monitoring of a baby after suffering such an insult is of utmost importance not only in evaluating the severity of the condition but also to potentially reverse some of the subsequent events that would have occurred in the brain and improve the long term outcome of the baby. He said the degree of neurological deficit will depend on the treatment that was given. Tshepiso would have fallen in the mild to moderate category and with the correct treatment, Tshepiso was potentially salvageable to be either completely normal or with far less severe neurological outcome.

[14]      Dr Moja in his report said “She gave birth at the clinic without assistance. She states that she noticed that her baby was initially not crying, breathing and not moving. In such a case there would have been a period of birth asphyxia and subsequent hypoxic anoxic and hypoxic ischaemic brain injury. The nurses apparently attended to the baby when they arrived at the clinic. Nonetheless, in light of the Tshepiso’s breathing problems at delivery, it would have been prudent to resuscitate the baby and immediately arrange for transfer of the baby to the hospital for further medical attention. The child should have been transferred to a paediatrician for further investigations and treatment. It is unlikely that the clinic would have had adequate facilities to render such a service. On this basis there is a plausible case of medical negligence”. Dr Moja said it was unreasonable to discharge Tshepiso and his mother and send them home at 12pm.

[15]      Under cross examination, he admitted that he did not enquire about the onset of labour as this was in the field of the obstetrician. His main focus was the sequelae of the events leading to brain injury and what happened to the brain. He said hypoxia can occur while the baby is in utero (in the womb) and intrapartum (during the birth process). He explained that it is logical and more probable that the acute profound episode which is limited to a few minutes was at the point of delivery because the baby was lifeless but then started breathing. This means there would have been up to five minutes but not more than five minutes. If the acute profound event was in utero, Tshepiso would have died at birth. When defendant’s version was put to Dr Moja,  that when the clinic sister found Tshepiso, she was held by the legs and some secretions fell out of her mouth and she was breathing immediately, he said the question still remains, why the abnormal MRI findings and why the severe neurological manifestations of hypoxia. There would have to be another subsequent major event.

[16]      He admitted that it was not necessary to resuscitate Tshepiso in circumstances where the nurse placed her in the incubator, she started crying, she was pink in colour and breathing. However he said that there was definitely still a need to either monitor as well as do further investigations. He said if a patient is pink but suffered an event, you still have to give oxygen. They call it supplemental oxygen until you have done further test to evaluate that there is indeed adequate oxygenation. Oxygenation is an advanced method which is not available at Makgobistad clinic. He said even if Tshepiso was breastfed at the clinic, the nursing staff should still have monitored and referred Tshepiso because of the extraordinary situation in which she was delivered. He said the fact that the nurse performed a resuscitative manoeuvre by initiating breathing means that Tshepiso should be monitored for at least 24 hours as there may be initial recovery and subsequent deterioration. Dr Moja recognised that the obstetrician is in a better position to make the decision on the timing of the hypoxic ischemic injury as his opinion as a neurosurgeon does not carry as much weight as an obstetrician.

[17]     The next witness for plaintiff was Mr Poloko Lazarus Lebone (Mr Lebone), a 65 year old farmer who is uneducated and cannot read or write. He is not related to plaintiff. He said at around 6:00 on 17 December 2003, plaintiff’s father called him and asked him to transport plaintiff to the clinic as she was experiencing labour pains. He drove plaintiff and plaintiff’s younger sister to the clinic in his three seater Hilux bakkie. They were all seated in front of the vehicle with plaintiff in the middle. On arrival at the clinic at around 7:00 they found the gate used by vehicles closed. There is another gate for pedestrians. The property is fenced. He told plaintiff to alight the vehicle but she could not alight. He left to call Maria Tlhabanyane, a neighbour who was waiting in front of the clinic door outside the fence with approximately 20 other people. When Ms Tlhabanyane saw plaintiff, she requested Mr Lebone to alight the vehicle and to go away. He left the vehicle and saw Ms Tlhabanyane enter the clinic yard, through the pedestrian gate and return in the company of the cleaner who carried a blanket. Ms Motaung who was coming on duty approached the vehicle. They instructed him to drive his vehicle to the entrance door of the clinic. He left thereafter. He said plaintiff was “wearing a black thing…. a jean thing” and the towel was wrapped on top of that. He did not see any other nursing sister. He did not hear the baby cry or see what assistance was given to plaintiff after he left his vehicle inside the premises.

[18]     The next witness for plaintiff was Dr Henceman Humphrey Lewis (Dr Lewis), a paediatrician practising in private practice in Pretoria since 1991. Prior to that he worked as a specialist/Neonatology in the Department of Health, Gauteng, University of Pretoria. Tshepiso was 12 years and 51 weeks at the time Dr Lewis examined her. He said Tshepiso suffers from spastic quadriplegia with the left side being more affected than the right. Her injuries are classified as GMFCS – 5 which means that she is unable to care for herself. She requires a wheelchair and would require 24 hour care later in her life. He said it’s a type of CP that follows an intrapartum or peripartum insult and it causes spasticity of her limbs and her body. Intrapartum is from the time a woman goes into labour until the time the baby is born. A peripartum is from 20 weeks until the first month of life.

[19]     Dr Lewis said according to, the radiologists there were two types of changes namely partial prolonged hypoxia and acute profound ischemia, both types causing brain damage. He explained that partial prolonged ischemia is a condition which the baby is in before the baby is subject to the pains of labour. There is a decreased blood flow through the placenta to feed the baby which causes decreased levels of oxygen to the brain and the level of consciousness may change, muscle tones will also drop because the baby does not have energy. This compromises the baby inside the uterus. He said that “children or foetuses who have this partial prolonged hypoxia towards the end of labour may have an acute event because the foetus has been compromised throughout the course of the labour”. In his report, he said there are two scenarios:

1)       There was a compromised foetus at some time from 03:00 until 08:25.

2)        With the rupture of membranes a sentinel event may have occurred which caused severe infantry hypoxia and neonatal compromise requiring immediate resuscitation which was not provided as there was no nursing staff in attendance.

[20]     Dr Lewis said that there is no evidence that holding a baby by the ankles with the head in a downward position would make any difference in resuscitation. He said up to 10% of babies born require a little bit of resuscitation to overcome the transition from the uterus to breathing air. What you need to do is listen to the heart rate, check that the baby is breathing and look at colour and the muscle tone. If the heart rate is below 100, you need to establish respiration. You first assess the circulation, you open the airways and if the baby is not breathing you give it manual ventilation using a little ambu bag which blows air into the lung until proper respiration is established. The Apga tests usually helps medical staff (especially less experienced) decide whether to resuscitate.

[21]      Dr Lewis said that the contributing factors that are consistent with an acute peripartum or intrapartum event are the following:

1)       A ruptured uterus;

2)       Severe abruptio Placenta;

3)       Umbilical cord prolapse;

4)       Amniotic fluid embolism with material hypotension and hypoxaemia;

5)       Maternal cardiovascular collapse.

He said none of the above events were recognised during the intrapartum period and the baby was delivered without the assistance of a midwife. He said if plaintiff had some of these conditions she would have required urgent medical attention to save her life.

[22]      Dr Lewis relied on the ACOG Guidelines as well as the opinion of an eminent paediatric, Dr Volpe who said that the following features have to be present to make the diagnosis of an intrapartum insult as being the likely cause of neonatal brain injury, namely:

“a)       Evidence of foetal distress - abnormalities of foetal heart rate. The mother arrived at the clinic shortly before delivery.

b)        Depression at birth requiring resuscitation – the baby did not cry at birth.

c)         Presence of an overt neonatal neurological syndrome in the first hours of life – the mother noticed that the child was sleepy. This may suggest neonatal syndrome”.

He said two of Dr Volpes criteria were fulfilled. He also said that the delay in transfer from home to clinic and the fact that there was no nursing staff available to resuscitate the baby contributed significantly to the poor outcome.

[23]     Dr Lewis commented on Dr Kganane’s statement that “usually growth parameters in severe birth asphyxia patients are symmetrically decreased but this patient has normal growth parameter. Based on the abovementioned facts, I am still not convinced that birth asphyxia is the cause of this cerebral palsy”. He said an acute problem occurred ‘more than likely’ during the intrapartum period from 3:00 to 8:00. Growth occurs before you go into the intrapartum period. During the intrapartum period you will not see abnormal growth unless there had been a chronic condition not picked up at the clinic. Although many children who had birth asphyxia have epilepsy, this is not the norm for all. The injury occurred in a term infant and it is unlikely that it occurred afterwards.

[24]     Dr Lewis referred to an article, written by Stephen Wall and others titled “Neonatal resuscitation in low-resource settings[1]”. The article states that “basic resuscitation would substantially reduce intrapartum related neonatal deaths”. Delays in assisting the non-breathing new-born to establish ventilation as may happen in low resource country settings, may exacerbate hypoxia, increase the need for assisted ventilation and contribute to neonatal morbidity and mortality. Dr Lewis said a nurse, midwife or sister should have basic training in resuscitation. The article further reads that the World Health Organisation states that all babies who do not cry, do not breath at all or who are gasping 30 seconds after birth should be resuscitated with bag and mask ventilation, “Babies who require extensive resuscitation should have ongoing assessment for at least 12 to 24 hours after birth. Even those who have responded appropriately to resuscitation may need further intervention to support breathing, achieve adequate oxygenation, avoid hyperthermia and maintain glucose and food balance”.

[25]     He said Tshepiso weighed 2.6 or 2.8 Kg at birth. The measurements suggest, a small gestational age (SGA) baby. The majority of SGA babies will have no complications and there is adequate intrapartum and neonatal care. The mother reported to him that Tshepiso was taken back to the clinic at 6 weeks for immunisation and the weight gain was normal and no problems were identified. He said the information in the RTHC, is necessary to see that the baby is growing normally from birth to 5 years. You start with the colour, if the baby is pale or blue you need to be concerned. You then check the heart rate. You will resuscitate if the heart rate is low and the baby does not move. The baby should have a normal Apgar by 10 minutes. To stimulate breathing after birth, you use tactile stimulation, such as rubbing the baby’s skin and preventing the baby from getting cold. If that does not happen, you give the baby bag oxygen. When it was put to Dr Lewis that it is alleged that plaintiff was wearing a jean when the baby was born, he could not understand how a baby could be expelled from the vagina with obstruction.

[26]     Under cross examination, Dr Lewis, conceded that if there were people at the clinic to assist plaintiff when she arrived, then that is not sub-standard care and further if Tshepiso was breathing, crying, breastfeeding and pink in colour there was no need to resuscitate her. Dr Lewis further conceded in respect of the conclusion of partial prolonged Ischaemia that on defendant’s version the sisters could not have monitored the labour and picked up placenta dysfunction.

[27]     Plaintiff, Ms Ntombizile Anna Mthombeni (Ms Mthombeni) testified. She is 34 years old and a single mother. Her highest level of education is matric and she has done some book keeping and computer courses. She is unemployed as she takes care of Tshepiso. She has an older son, Kamogelo who 15 years old and who was also born at the Makgobistad Clinic. She said during her pregnancy with Tshepiso she visited the clinic and after they confirmed her pregnancy, she returned after 4 to 5 months and then visited every month thereafter. They gave her a maternity book wherein her visits were documented. After Tshepiso’s birth the book remained in the clinic.

[28]     She said on 17 December 2000 at around 3:00 she had labour pains. Her sister called for an ambulance but she was unable to reach them. Her father asked Mr Lebone to drive her to the clinic. At around 7:35 to 7:40 they left her home in Mr Lebone’s bakkie. She was seated in the middle and her sister was next to her. They arrived at the clinic at 7:50 to 7:55. On arrival, they found the security guard at the gate and he informed them that there were no nurses. She waited in the vehicle. At 8:10 her water broke. A lady called Maria Tlhabanyane came to check on her. Around 8:14 to 8:15 she gave birth while seated in the vehicle. She said she wore a T-shirt, a long black skirt and a panty which she pushed to her knees when she gave birth. She was alone in the vehicle. After giving birth, a cleaner from the clinic came with a blanket and wrapped her. They stayed there for 10 minutes. The baby did not move, breath or cry.

[29]     She said the bakkie was inside the clinics yard when she gave birth. Between 8:25 and 8:30, Ms Motaung, a nursing sister arrived and cut the umbilical cord and took the baby. Ms Motaung put her on a bed in the clinic. Sister Moletsane examined her and cleaned her. She also admonished her and said that when she arrived and found no one at the clinic she should have gone to the Disaneng clinic and that she “wants to put them in trouble”. They brought Tshepiso to her in an incubator. She was discharged before 12:00. Tshepiso did not cry at the clinic and cried for the first time during the day. She could not remember whether she breastfed Tshepiso at the clinic. She said the first night Tshepiso slept through the night and thereafter she slept too much. Tshepiso drank from her breast at home and did not feed in the same way as her son.

[30]     She said she was given the RTHC on the day she left the clinic. She went back to the clinic for Tshepiso’s immunisation in January 2004 and returned five after months. Thereafter she went to the Motlhabeng Clinic because she was concerned that Tshepiso was always sleeping and not behaving like a baby at that age. She was referred to the Bophelong Hospital where they diagnosed that Tshepiso has microencephalopathy CP.

[31]     Under cross examination she said she did not ask Ms Tlhabanyane or the cleaner, Ms Winnie for assistance. She explained that she was seated with one leg on the seat and the other leg on the floor and the baby was between her legs on the seat. She was facing the door on the driver’s side. She denied that:

a)        she wore a pair of jeans;

b)        the clinic was open when she arrived;

c)        Ms Motaung came to assist her and Ms Motaung called sister Moletsane;

d)        Ms Motaung took a wheelchair and Ms Moletsane wheeled her into the clinic. She said Ms Gameng took her into the clinic,

e)        they cut her jeans in the passage of the clinic;

f)          Ms Moletsane cut the umbilical cord, held the baby by the ankles and kept her hanging downward and secretions fell out the baby’s mouth and nose and she wiped the baby’s nose;

g)        the baby started breathing and cried;

h)        the baby’s colour was pink;

i)          she breastfed Tshepiso at the clinic;

j)          Ms Motaung gave her porridge to eat. She said they only gave her water.

k)         she was advised to save money for transportation to the clinic during labour.

[32]        In re-examination she said each time she went to the clinic for ante natal classes she was assisted by different nurses. Most of the time, she was assisted by sister Setlhadi and Ms Motaung.

[33]        The first witness for defendant was Kedimetseng Alice Jaula (Ms Jaula). She is employed as an administration officer at the clinic. She registers patients and does filing. On 17 December 2003 she arrived at work at 8:00 and while dusting she heard sister Moletsane requesting a pair of scissors. Sister Moletsane exited the examination room and went in the direction of the labour ward and Ms Motaung followed with plaintiff in a  wheelchair. She knows plaintiff from the village. They met at the labour ward door. Sister Moletsane cut off plaintiff’s pants, removed the baby and wrapped the baby. She then took the baby inside the ward. Thereafter she heard the baby cry. She continued with her work didn’t see plaintiff again on that day.

[34]        She said prior to 17 December 2003, she did not see plaintiff at the clinic. She registers the people who come to the clinic on a daily basis in a book called head count. She said the fill port is the maternity case record. Information such as the weight, length, and head circumference of the baby is recorded in the maternity case record by the midwife who was sister Moletsane on 17 December 2003. She said in 2016, her supervisor asked her to look for the records relating to plaintiff. She checked the old clinic where files are stored and could not find the file and only found the maternity register.

[35]        In cross examination she said apart from the register she opens a file for all the patients. The sister makes an endorsement in the file after every visit. The mother of new born baby takes the file and returns with it for her check-ups. She said she opened a file for plaintiff in a family file which was opened in 2002. The maternity file opened by the sisters are normally kept inside the family file. She said the fill port was kept in the family file. It was put to her that 3 different records, namely the head count, the fill port and the patient’s personal file which is given a number and is registered in a register all disappeared. She said it is 14 years and she is not in a position to explain how the records disappeared.

[36]        She said on 17 December 2003 the cleaner, Malefo was on duty and not Winnie. When she arrived at work, Ms Motaung, sister Moletsane and the cleaner were already there. Ms Motaung starts at 7:00. She denied that plaintiff arrived before 8:00 and said “it is not true because I did not see them. I arrived at 8:00”. She said when Sister Moletsane asked for a pair of scissors she followed her and found plaintiff on a wheelchair next to the maternity room inside the clinic. She said she observed plaintiff sitting on her side on the wheelchair. She said plaintiff wore a jean and there appeared to be a ball on the side. Sister Moletsane cut the jean from the bottom up, until the side, on the right side. Sister Moletsane then took the baby blanket, wrapped the baby and entered the ward with the baby. She said Ms Motaung was present and removed it and then went to the linen room and fetched a blanket which she threw on plaintiff’s lap. Ms Motaung then pushed plaintiff into the maternity room. She was questioned:

              “Q   If someone would say that the sister took the baby out and held the baby by the ankles or feet you would not agree?

                A  Yes she grabbed the baby and held her like that and then she had a blanket and wrapped the baby. She said she was holding the baby’s legs with one hand and then wrapped the baby with blanket. But before she wrapped the baby she cut something. The blanket was kept on the armrest of the wheelchair”.

              Later she conceded that everything happened very fast and she could not remember the details. She also said that it is not impossible that sister Moletsane did not hold the baby with one hand when the umbilical cord was cut. She said she saw the baby at the time when sister Moletsane wrapped her and the baby was light pink in colour. She also said when the baby entered the maternity ward she started crying.

[37]        The next witness for plaintiff was Sophie Lebone Moletsane (Sister Moletsane). She is a professional registered nurse. She did her training at the Moroka Nursing College. She went to Macon Midwifery as a midwife and did a course in primary healthcare, which she completed in 2003. She has been employed at the clinic since 2000. On 17 December 2003 she reported to work at 7:00. There was a handover report from the night nurse. She was on duty with Ms Motaung, the assistant nurse. She was in the emergency room and Ms Motaung was in the maternity room. Ms Motaung called her saying there is a maternity emergency, that the patient has already delivered and requesting a pair of scissors. She entered the maternity room, took a pair of scissors, a clean sheet and a cord clamp and went to the vehicle. Ms Motaung was already at the vehicle and the clerk, Nukhu followed her. She found plaintiff and something that looked like a ball between her thighs and vaginal area. She was wearing a jean. In the motor vehicle there was no space to help plaintiff to open her legs so she requested Ms Motaung to assist her to pick plaintiff up and put her in a wheelchair so they could wheel her inside the clinic and so they could have privacy.

[38]        In the passage, she requested Ms Motaung to help her lift her legs. She then cut the jeans from the end of the jeans upward. The panty was holding the baby and she also cut the panty. She took the baby and put the baby on plaintiff’s thigh and clamped the cord and cut the placenta. She supported the baby’s neck and wrapped the baby with the sheet. On the way to the maternity room, she removed secretions on the nose and the mouth with gauze and went with the baby inside the maternity room. She was holding the baby in her left hand and she turned the baby’s head with the right hand so that any remaining secretions could flow out. When she entered the labour room, the baby cried. She tried to dry her of the blood secretions around her body. She put the baby on the table and then took a suction machine and suctioned the secretions that were left on the surface not suctioning deep because the baby was crying. She wiped off the blood on the baby’s body and wrapped the baby in another clean sheet and put the baby inside an incubator. At that time Ms Motaung put plaintiff in the bed inside the maternity room. Sister Moletsane removed the placenta did the PV examination on plaintiff and cleaned plaintiff. She returned to the incubator where she put eye drops in the baby’s eye and injected her with Conacure that stops the bleeding on the navel from the placenta. After injecting the baby, she measured her head circumference, the length and the genital examination. She requested the maternity record from plaintiff because she was attending antenatal classes but she did not have it. They opened a new maternity register. After recording the information, she handed the baby to plaintiff to see if the baby sucks and the baby was able to feed on the breast. Thereafter she put the baby back inside the incubator. Every 2 hours, they checked the baby and plaintiff. The baby was fine, she was pink, breathing correctly and crying. They checked plaintiff’s blood pressure and PV bleeding. After 4 hours, at 12:00 they discharged plaintiff and the baby.

[39]        Sister Moletsane said the baby breastfed several times from plaintiff. The baby was discharged in good condition. You also consider “the crying of the baby and reflexes of the baby when deciding whether to give oxygen”. She said the baby was in a good condition and did not need oxygen as her skin was pink, she was crying and her reflexes were present. She said she completed the maternity register which was tendered as an exhibit. She recorded normal vaginal delivery (NVD), ‘head on perineum’. She said this means the baby’s head was already out and they did not deliver the baby. She said this was a complicated case because she could have written birth before arrival (BBA), but this is when the mother arrives with the baby in her arms. However in this case the baby was between her legs in her panty. Under complication she wrote ‘none’. Plaintiff was intact and there were no tears on her vagina, hence she wrote that condition of plaintiff was ‘satisfactory’. Under condition of child, she wrote satisfactory because she checked whether the child was crying, her skin colour and sucking reflexes. She wrote the weight as 2.8kg. She said she gave plaintiff a maternity record which has all the information about the mother and the baby and plaintiff was supposed to return after 7 days with the baby. She issued the RTHC to plaintiff after seven days as the baby was to be given BCG and Polio.

[40]        In cross examination she said she remembers the facts of this case very well as it was exceptional because plaintiff delivered in her panty inside a motor vehicle. It was put to her that such exceptional circumstances should have put out a warning that the baby may have sustained injuries or brain injuries, she replied that the way the baby responded it did not strike her mind. She said she found plaintiff at the back of the vehicle and there was a canopy covering the back of the vehicle. Plaintiff was semi seated. She and Ms Motaung tried to lift her and put her on the wheelchair because the space was too small inside the vehicle. She did not sit up straight on the wheelchair but was seated on her side, and they were able to reach the baby. She cut the cord while plaintiff was seated on her side. She said she only cut the left leg and after cutting it, she loosened it and the baby was stuck in the panty. She denied that she at any stage held the baby with one hand at its ankles or feet with the baby hanging with its head down and said that they may have confused the tilting of the head.

[41]        She said the baby weighed 2.8kg which is the correct gestational age. The Apgar score is normally done in the first 5 minutes after delivery of the baby. In this case, she did not know when the baby was delivered. She followed the maternity record when doing the Apgar score. She tested, respiration, skin colour, pulse rate, circulation. The pulse should be 120 beats per minute. She said if the pulse is below you have to resuscitate and if it is above, you refer the baby to a hospital. She said she checked the baby heartbeat and it was 120. She recorded it in the register. She could remember because of this case and its outcome. She said if the baby was not breathing properly or not moving and was floppy and not crying she would refer the baby. She was not aware that the hospital records could not be found. She recognised her writing in the RTHC. She said the details such as the birth weight, length, and head circumference were written on the maternity register and she may have forgotten to record it on the RTHC. She couldn’t recall her earlier evidence that she gave the RTHC to plaintiff 7 days after birth. When questioned why she wrote head on perineum she said, she did not know whether to write BBA or head on perineum as the baby was between the thigh of the mother and the vagina and was already delivered inside the panty. She said she was confused because this was the first case she experienced.

[42]        In cross examination she said:

              “A   I put her in the incubation then I attended the mother.

                Q  what is the incubator for, what does that do to the baby?

                A  It is that small machine that can control the temperature of the baby then it is having some oxygen there.

                Q  So did you give oxygen to the baby as well while the baby was in the incubator or not?

                A  In the incubator.

                Q  Did you supply oxygen as well?

                 A    Yes”.

              In re-examination she said she put the baby in the incubator as it helps to regulate the temperature of the baby and to make sure that the baby was safe to avoid her falling and to avoid hypothermia, (the drop in temperature).

[43]        The next witness Matlhogonolo Keoretsi Malebane (Dr Malebane). He has a Bachelor of Science, a Medical degree and a qualification from the College of Medicine, a fellowship of Obstetrics and Gynaecology. He completed his Obstetrics and Gynaecology in 2006 and worked as a consultant at Baragwanath Hospital. He started his private practice in 2017.

[44]        Dr Malebane consulted with Tshepiso and plaintiff on 11 May 2017 and compiled a report. He reported that according to plaintiff on the 27 December, she had strong lower abdominal pains at around 3:00 and arrived at the clinic at 8:00. He said plaintiff’s delivery was rapid and without complications in that her water broke and the baby was born shortly thereafter. Plaintiff informed him that the baby did not cry or move after delivery. She said the first nurse arrived about 25 to 30 minutes after delivery and she was taken into the clinic. She and the baby were discharged between 10:00 and 12:00 “at that stage, according to her, the baby had been fine/normal and breastfed without any difficulties”. In his evidence he stated further that “according to the mother the baby was then returned to her and there seems to have been no problem with the baby latching and sucking”.

[45]        In a revised report prepared after receiving the radiologists joint minutes and the maternity register, he states that the labour occurred prior to her admission for delivery and for this reason no monitoring of the labour preceding the time of her admission could have occurred at the clinic. So if there were abnormalities in the foetal condition (foetal distress), this would have not been detected and managed accordingly. In his report he said and that “due to the fact that the patient had virtually her entire labour outside of the health care, the resultant brain injury cannot be attributed to any action or omissions by the health care workers”.

[46]        He explained that for a foetus to suffer acute profound injury there must have at some stage been a total shut off of blood flow. With partial prolonged there is some flow of blood just not an adequate flow. He agreed with Dr Moja that the timing of the acute profound ischemic injury can only be described by an obstetrician. He said the acute profound ischemic injury occurred in the second stage of labour when the cervix was fully dilated, ten minutes from the time of the insult to the delivery, maximum an hour before the delivery. He said his opinion is based on medical literature and tests that were conducted on monkeys where the umbilical cord was clamped. If the blood and oxygen flow is cut off and exceeds ten minutes, the monkey suffered brain damage of an acute profound nature. Ten minutes is the threshold to sustain brain injury. Beyond 40 – 60 minutes, the foetus dies. Dr Malebane said a qualitative assessment of the general status of the neonatal is done within the first ten minutes. There are different parameters, namely the colour of the skin, the tone, respiration etc. Depending on what the assessment is, a decision would then be made whether or not the foetus requires resuscitation and what type of resuscitation. If the neonatal was breathing and was pink in colour there was no indication of respiratory distress.

[47]        Under cross examination he said the insult or injury to the brain happened before delivery while the baby was in the uterus because once an acute profound occurs there is limited time for the foetus to be delivered. He agreed that the Apgar score was important to establish the condition of the baby. Assessments can be done, one with an Apgar score, and also by looking at the respiratory effort, whether the baby crying, the colour of the skin and the presence of reflexes. On plaintiff’s version she gave birth at 8:15 in the motor vehicle and stayed there for 10 minutes. The baby was not moving, not breathing and not crying. Dr Malebane agreed that this was an abnormal position for a woman to give birth. He agreed that on probabilities the injury occurred during the period that plaintiff was waiting to give birth in the bakkie or immediately thereafter, “around the time the patient went into labour, the delivery and probably the immediate post delivery period”.

[48]        He said in the joint minutes with Dr Sevenster, they agreed that it was impossible to determine with any degree of certainty the precise moment when this injury would have occurred. He said the injury would probably have been preceded by abnormalities and as they do not know the duration of the second stage and because plaintiff was imminently deliverable. He said because they don’t know at what stage the foetus suffered foetal distress they cannot say on probabilities that if Tshepiso had been in a medical facility, it could have been prevented. Because of the absence of objective information, it is incorrect to assume that the foetal condition would have been normal from the onset of labour even at the time of delivery. “The one thing we know with greater probability is that the timing of the brain injury has happened around just before delivery, during the delivery or immediately after the delivery but the insults that might, have contributed could have been around those times but could have also preceded that and it is important for the Court to know the distinction between the injury itself and the insults that lead up to the injury”…. Dr Malebana distinguished between the injury observed in the MRI and the insult. The injury could have occurred in the vehicle while the insult could have occurred earlier. The insult leads to the injury. The cause is the insult and the insult could have occurred at the onset when labour started.

[49]        The next witness for defendant was Wandile Noxlabiso Kganane (Dr Kganane), a qualified paediatrician since 2004 and further qualified as a paediatrician intensivist in 2010. Presently working as a private paediatrician doing both general paediatrician and paediatrician intensive care unit work. She consulted with plaintiff and Tshepiso and prepared a report. She had the MRI and radiologist report when she compiled her report. She did not have the hospital records or the RTHC.

[50]        She said for a baby born outside a health care facility (BBA), a health care worker you should look at whether the baby was breastfeeding, was breathing, was pink, and looked normal. Dr Kganane said plaintiff told her that Tshepiso was discharged because she was breastfeeding and there were no problems. After conducting the PV examination on plaintiff they handed the baby to plaintiff to see if she could suck and the baby sucked from the breast. Plaintiff was discharged at 12:00 and no concerns were noted. At home plaintiff observed that Tshepiso slept a lot. There were no abnormal movements, no fits and the baby was vaccinated.

[51]        On examining Tshepiso she found the weight, height and head circumference to be appropriate for her age. This was unusual for someone who had neuro developmental delay, whose cognitive function was diminished. Her motor functions showed decreased power, increased reflexes and increased tone on the left upper and lower. Dr Kganane said  Tshepiso has mixed cerebral palsy, normal growth parameters and no epilepsy which is uncommon in hypoxic ischemic encephalopathy cases. There is spasticity in the muscles but the brain function is not so bad. There was no objective evidence to confirm the hypoxic ischemic encephalopathy on history or on examination. The neurological findings confirmed by the MRI scan was in keeping with congenital brain malformation. Dr Kganane was still not convinced that birth asphyxia was the cause of the cerebral palsy even after the radiologists changed their opinion.

[52]        Dr Kganane said the steps taken by Sister Moletsane, namely to suction and remove excessive secretions and wrap the baby is normal. As part of trying to stimulate you wipe off the excessive fluids and wrap their bodies to re-establish normal body temperature and you put them in an incubator to establish the temperature. You would give oxygen if the colour and the appearance of the baby was blue or purple and there is inactivity. You can also give oxygen via the incubator. Oxygen is a drug, it is a therapy. If there are no signs or symptoms that you need oxygen, then you would not give the oxygen. In response to Dr Moja’s opinion that the baby should have been taken for further monitoring at a hospital for a period of 24 hours, Dr Kganane said, the fact that the baby was sucking was appropriate and further that the baby was monitored for another 4 hours was ‘impressive’. The baby was conscious and did not need oxygen in the 4 hours. In the 4 hours you monitor if the baby is sucking and does not have seizures or abnormal movements. The RTHC, after six weeks showed that the baby was normal, well and gaining weight. Tshepiso did not have any other issues and was not readmitted to the hospital with an infection or seizures.

[53]        Under cross examinations Dr Kganane admitted the she had the first radiologist report and not the second revised report. After seeing the revised report, she said there wasn’t much of a change. She admitted that she did not really rely on the reports and joint minutes of the radiologists. It was put to her that plaintiff did not say that the baby was breastfeeding because she only noted in her report that “The mother saw baby after an hour and both mother and baby were discharged before 12:00 midday. No concerns were noted about the baby”. She replied that plaintiff did say that the baby was breastfeeding. The primary concern you would have with a new born is whether you can feed or not because if you cannot feed then you should not go home. It was put to her that there is nothing indicating that plaintiff told her that the baby was breastfeeding and this was her own conclusion. She replied that the question was asked if Tshepiso was fine and breastfeeding. When questioned whether there was a misunderstanding that plaintiff told her that she was breastfeeding. She replied that “luckily we speak the same language and we were speaking the vernacular so there was no misunderstanding on my side”. The issue of breastfeeding is very important because a baby who has come in that dire condition and is not feeding should not be discharged home. One of the signs to see whether a baby is neurologically okay, is the sucking reflex, that is, the breastfeeding.

[54]        Under cross examination she admitted that according to the RTHC Tshepiso’s weight gain from one month up to six months was subnormal. This she explained is relative as it depends on circumstances such as whether the baby is sick or whether there is enough nutrition at home etc. She said that from the age of six months Tshepiso did not develop properly, so by the age of 13, she was not developed. She was questioned why then did she state in her report that the baby’s weight, length and head circumference were normal for her age when she saw Tshepiso at age 13. She said the measurements were appropriate for her age but that Tshepiso was not developing neurologically after six months. She was asked to explain the difference between spastic quadriplegic type of cerebral palsy and mixed cerebral palsy. She said spastic refers to increased tone so the arms and legs are stiff. Quadriplegic is someone who cannot walk and cannot use his limbs. They are usually bed bound. That differs substantially to mixed cerebral palsy. She said Tshepiso this did not fit in with the findings of the radiologist whose findings were a typical spastic quadriplegic. She was referred to her joint minutes wherein she agreed that “she suffers from cerebral palsy of the spastic quadriplegic type”. She said she “missed this one” when she signed the joint minutes.

[55]        In cross examination, Dr Kganane was asked whether she is in a position to say when the brain injury occurred. She said if we say it is an acute insult then it probably happened during the time that Tshepiso was delivered. Growth relates to when the insult occurred. In this case, the brain is still preserved, Tshepiso did not stop growing. She said she was not in a position to conclude when the incident happened but was more inclined to believe that it happened at some time after birth.

[56]          The next witness for plaintiff was Dr Zezomafa Rivonia Mogashoa (Dr Mogashoa). She works as a paediatrician neurologist at one military hospital. She is the head of paediatrics. She has a Bachelor of Medicine (1999), a diploma in HIV medicine, a diploma in child health and a paediatric speciality and a certificate from the College of Medicine in Paediatric Neurology. A paediatric neurologist qualifies in paediatrics and subspecialize in neurology of the child. They look at brain problems in children with epilepsy, cerebral palsy etc.

[57]          She consulted with plaintiff and Tshepiso on 12 May 2017 and compiled a report. She also prepared an addendum report on 19 November 2017 after receiving additional information. She had the RTHC and the radiologists report when she prepared her report. She said plaintiff did not tell her what time the labour started. Plaintiff arrived at the clinic at 7:45 and there were no nurses. She delivered in the vehicle at 8:18. The nurses arrived 10 minutes after delivery.

[58]        In her report she said Tshepiso’s weight, head circumference and length were normal. For a 13 year old, Tshepiso’s milestones are grossly delayed. She is still in nappies and her speech is not normal. Tshepiso’s thumbs were fisted and there was increased tone. She was spastic, (stiff) and could not be move with ease. All four limbs were affected which is called quadric but the one side was more affected than the other. She has mixed cerebral palsy because she has both spasticity and she has abnormal posturing (dystonia). It’s a mixture of spastic quadriplegia plus dystonia.

[59]        Dr Mogashoa said the American College of Obstetricians (ACOE) in 2014 came up with the ACOE statement to determine what a child who had hypoxia during labour would look like in the neonatal period. This is an important guideline. The 2014 consensus statement says that you have to assess everything and cannot just look at the MRI and the Apgar score. According to the ACOG, neonatal encephalopathy is a clinically defined syndrome of disturbed neurological function in the earliest days of life. One looks at the following:

1)        An Apgar score of less than 5. As Tshepiso was not born at a health facility, there were no Apgar documented.

2)        The neonatal MRI imaging, is supposed to have specific features suggesting damage to the brain. Tshepiso was well in the neonatal period and did not require admission to a neonatal unit nor was neuro imaging warranted in the neonatal period.

[60]    She explained that the first 28 days of life is called the neonatal period. Signs of encephalopathy are:

a)        depressed primitive reflexes such as sucking and physical activity and floppy.

b)        decreased level of consciousness, not crying, always sleepy and non-responsive, not active and lethargic.

c)         Seizures convulsions, hypertonia

              Tshepiso was not encephalopathic in the neonatal period according the history given by plaintiff. Tshepiso did not fit any of the above because according to plaintiff she was active, crying and sucking well and was discharged in 4 hours. If discharged erroneously, Tshepiso would have problems because she would not feed and would return with seizures, be lethargic and floppy and would have impaired kidney function. A baby with hypoxia during labour is not a baby that is fine, goes home and presents a few months later with developmental delay. She said the causes of neonatal encephalopathy include meningitis and septicaemia. It is unlikely that Tshepiso had meningitis or septicaemia and there were no metabolic disorders or genetic abnormalities.

[61]        Dr Mogashoa in her report said that the insult could have occurred before labour (antepartum), during labour (intrapartum) or after birth (postpartum). She said according to plaintiff, she was well during the pregnancy and attended antenatal classes. There is no antenatal card, so one does not know how the baby grew. Plaintiff arrived at the clinic well after she had gone through most of her labour. Dr Mogashoa did not think the problem occurred in the postpartum period. According to plaintiff, Tshepiso was depressed at birth and started crying after ten minutes. Tshepiso’s neonatal course does not support an ideological diagnosis of hypoxic ischemic encephalopathy as Tshepiso was well in the neonatal period according to plaintiff. In her revised report prepared on 29 November 2017, after receiving the radiologist revised report that suggested that the cause of the Tshepiso’s impairments were hypoxia, she said the following:

              “Tshepiso has mixed asymmetric cerebral palsy, GMFCS IV, global developmental delay, strabismus, profound intellectual impairment and multiple contractures. I am of the opinion that baby’s insult was not caused by intrapartum hypoxia but that the insult occurred in utero or in the first month of life, this conclusion is made because injury at any point from 37 weeks to the first month of life will result in the same radiological pattern. The weight of the baby at six weeks was 4kg, this is normal suggesting that the baby was feeding well after discharge. I defer to the obstetricians for further discussion on the pregnancy and the management of labour. I am of the opinion that at this point we cannot conclude when the brain insult occurred, what can be said is that the insult is not likely to have occurred during labour because the baby was well at birth and the first month of life at least”.

[62]        Hence there was no monitoring of the labour to see if the baby was developing foetal distress. There are 2 types of hypoxic events. The first is gradual prolonged hypoxia for example if someone has been in labour for a long time and that typically would give you spastic quadriplegic cerebral palsy and you also get a situation where there was sudden loss of blood supply to the brain and the brain does not have enough oxygen to compensate and spare it most critical or its most metabolically active parts of the brain. Depending on the type of hypoxia that the baby has, you can get dystonic cerebral palsy or quadriplegic cerebral palsy. Dr Mogashoa says Tshepiso has got features of both partial prolonged hypoxia and acute profound. This fits the clinical picture because Tshepiso has got both features of spastic quadriparesis from a partial prolonged injury and dyskinetic or abnormal movements from an acute profound injury. She has mixed cerebral palsy. Both Dr Keshave and Dr Mogashoa agree that with the available evidence it is difficult to identify when the hypoxic event occurred because you have a baby who was not encephalopathic at birth. Unless you have enough information about the pregnancy and the delivery you cannot tell when the insult occurred. The RTHC shows that there is only deterioration in growth noted at 9 months of age. If this was severe hypoxia from birth asphyxia, then Tshepiso would have displayed signs of encephalopathy in the neonatal period and earlier than 9 months of age. Dr Mogashoa said if Tshepiso was active, breathing, pink in colour and breastfeeding, then there was no need to administer oxygen and there was no need to refer her to a paediatrician.

[63]        In cross examination she was questioned about her handwritten notes where she wrote “Baby did not cry at birth, was just still for ten minutes after nurse arrived”. She said this should be interpreted that the baby was still when it was born and it was approximately ten minutes thereafter that the nurses arrived. In her first report she said “baby did not cry at birth. She was quiet for about ten minutes”. She said she took this from her notes. She said the two are the same, as the baby was quiet for about ten minutes. She said if there is a difference between the two, the Court can rely on the written notes. She reiterated that plaintiff told her that the baby was still for ten minutes and the nurses arrived about ten minutes after the baby was born. Plaintiff did not tell her what happened during the period after the nurses took the baby but she explained that when she was discharged, baby was fine, active, crying and sucking well. In any event she said if the baby was crying at home this is not encephalopathy because those babies deteriorate after a couple of hours.

[64]        Dr Mogashoa was questioned about the findings in her first report that “The MRI findings are in keeping with congenital brain anomaly and not hypoxic brain injury. The absence of encephalopathy in the neonatal period also suggests that the cause of this child’s problems were not hypoxia”. She said she prepared the addendum report after receiving the revised radiology report and the maternity register. The only useful information from the maternity register was Tshepiso’s condition on discharge, where the sister wrote “Satisfactory” and the weight was 2.8kg which is a normal weight. She agrees with the radiologist that the pattern that they see is hypoxia to the term brain. She said the hypoxia could have occurred anywhere from 37 weeks to the first month of life. She said it is difficult for the radiologist to interpret the MRI because it was done when Tshepiso was 12 – 13 years old and there have been many changes to the brain. When looking at the MRI at 13 years of age one cannot say that this occurred at birth. For one to say the injury occurred in the intra partum period, the MRI had to be done within the first 12 days of life.

[65]        She conceded that the fact that Tshepiso was not well at birth was not brought to her attention. She referred to the ACOG statement which says that a baby who is not well at birth is not necessarily because of intra-partum hypoxia or asphyxia. You have to do a multi-dimensional assessment which includes the pregnancy and what happened during the pregnancy and what happened when the labour started between 3:00 and 8:00 as the problem could have occurred in that time. It does not mean that all Tshepiso’s problems occurred in the ten minutes when she was lifeless. The problems could have started at the onset of labour, and the time of delivery. What compounds the matter is that plaintiff said Tshepiso was well after birth which is against encephalopathy. The ACOG and all other authorities in neonatology state that hypoxia cannot happen in labour and you have a normal baby who is gaining weight, who is sucking, active and crying. She said her statement that the baby was well after birth is not at birth but after birth. When the baby returned to the clinic the baby had gained weight. The weight in question is the first few weeks of life. If weight loss is after six weeks then it is problems that develop after six weeks. If it is encephalopathy during labour then baby is not going to feed well in the first week and therefore is going to lose weight in the first week of life and will present with weight loss at the six weeks visit. Therefore the relevant weight is 4kg at six weeks. Problems started occurring after six weeks but in the first six weeks there were no problems. She said that as far as pre-birth is concerned they were in the field of speculation.

[66]        She said further that there is a pattern of injury of acute profound and an acute profound injury takes about six to ten minutes. There is also partial prolonged injury and this injury takes much longer to occur. That is why she concluded by stating that “I am of the opinion that at this point we cannot conclude when the brain insult occurred”.

[67]        Defendant’s next witness was Keorapetse Sylvia Motaung (Ms Motaung). She is a pensioner. In 1973, she completed her matric and worked as a general worker at Makgobistad clinic from 1976 to 1992. In 1992 she trained as an assistant nurse for one year and obtained a certificate. She returned to the clinic as an assistant nurse. In December 2003 she was still employed at the clinic.

[68]        She said on 17 December 2003 she was on duty and arrived at 7:00. She was in the maternity ward preparing the equipment for the morning and through the window she saw a bakkie appear and people in the bakkie appeared to be in a hurry. She pointed through the window that they should go to the back. She said it was around 8:00 but she could not recall correctly. She went out and met them at the main door. Present in the motor vehicle was plaintiff, her sister and the driver. The driver switched off the engine and left and somebody mentioned that plaintiff had delivered. She then ran back to collect a wheelchair and screamed calling for sister Moletsane who came and when she approached she said plaintiff has delivered and is wearing a pair of jeans, a bogard. She assisted sister Moletsane to cut the pants. She could not manage because it was on the front seat of the bakkie and the space was too small, so they put her on the wheelchair. They wheeled her into the corridor where they assisted her quickly. The sister cut the pants and the baby was on the left thigh. Ms Moletsane cut the baby’s umbilical cord and entered the maternity ward. She did not see if the baby was lifeless. She ran into the ward to fetch a gown for plaintiff to cover her for privacy. Thereafter she wheeled her into the maternity ward and sister Moletsane was busy with the baby. Thereafter sister Moletsane checked plaintiff’s vitals, namely her blood pressure, temperature and pulse. She left to check on other patients. Later she made porridge for plaintiff and gave it to her. She saw plaintiff breastfeed Tshepiso when she entered and exited the maternity ward. She did not see plaintiff when she was discharged.

[69]        She denied that the clinic was closed when plaintiff arrived. She said when she arrived at work on that day, there wasn’t a car parked in front of the clinic. She also denied that a cleaner assisted plaintiff in the car when the vehicle arrived at the clinic. She did not see Maria Tlhabanyane inside the clinic yard. She denied that she was not at work and said she was present and saw them entering the gate. She denied that she cut the umbilical cord and took baby. She said with her scope of practice and training, she would never cut an umbilical cord. This is done by the sister or midwife. She said she went to collect a gown to cover plaintiff and on her return from collecting the gown she heard the baby crying. She said she also used to give antenatal classes but has never seen plaintiff there.

[70]          Under cross examination she said when she arrived at 7:00, the security was there. Also present was the cleaner and the night nurse. The cleaner’s name was Jane Maletu. She said, sister Moletsane and the clerk arrived at 7:00. She admitted that the clerk, Ms Jaula was present and reports for duty at 8:00. She said plaintiff was in front seat of the vehicle and not in the back as sister Moletsane testified. She was questioned about the time she gave plaintiff porridge and when she saw plaintiff breastfeeding the baby. She said: “She was breastfeeding, she put the baby down, she had her soft porridge, after that I think, I am not certain around that time at 10:30 when I was passing she was again breastfeeding the baby”. She reiterated when it was put to her that the baby was not breastfeeding at the clinic that she saw “the baby with my eyes, the baby was breastfeeding”. She said she heard the baby crying just after sister Moletsane cut the cord and entered the maternity room. She was questioned if that was the only time she heard the baby crying. She replied “I do not know in the time I was not present. I heard the baby crying and then the second time I saw the baby when I was passing the baby was in an incubator, so I do not know when I was not around”.

[71]          She was asked to describe the clothing plaintiff wore, she said she can recall the pair of pants and cannot recall the rest of the clothing “because the pants is the one that gave us a shock when we were coming to take the baby”. She recalls it was a jean which was wet and full of blood. When asked to describe how sister Moletsane cut the jean, she demonstrated that she cut slightly below where the belt is “on the thigh. The baby was exactly there on the thigh so she had to put two fingers to protect the baby so she did not cut the baby then she cut the jeans”. She demonstrated that the baby was on the left side of the left leg and she cut from the right side downwards towards the crotch, at an angle. The space she cut was big enough to remove the baby. She could not recall whether there was a towel or a blanket that was used. She said after sister Moletsane took the baby, she went to fetch a gown to cover plaintiff. She said sister Moletsane was holding a baby blanket which she had put on the thigh when she cut the cord and took the baby. She said the blanket was used to cover the baby. It was put to her that if she and the other staff arrived late, her bosses would be angry. She replied that “it is impossible and it would never happen that all of us should come late”.

[72]          The defendant’s next witness was Doctor Hendrik Motlhabane Marumo (Dr Marumo). He hold a MBCHB degree from the University of Witwatersrand in 2004. In 2008 he joined the department of Neuro Surgery at the University of the Witwatersrands Circuit. In 2011 he obtained the qualification of MMed in Neuro Surgery and in 2016 he obtained a master’s degree in Major Neuro Surgery. Presently he has a private practice at the Waterfall City Hospital in Midrand.

[73]          He explained that a neurosurgeon deals with a neurological condition, problems that affect the brain and the spinal cord that requires surgical intervention. He consulted with plaintiff and did a clinical examination of Tshepiso and compiled a medico legal report. When he compiled his report he did not have any medical records except the disk containing the MRI imaging and Dr Kamelane’s report. From the MRI he found that Tshepiso had abnormally large ventricles of the brain. He said if there is an insult on the brain then it gets filled with cerebrospinal fluid and this is called arachnoiditis and they can affect development, speech or motor function. He opined that it is consistent with congenital malformation of the brain.

                 He received the updated radiologist report which he and Dr Moja considered and agreed that the findings are consistent with hypoxia ischemic encephalopathy HIE), brain asphyxia and that genetic disorder is unlikely. They also agreed in the joint minutes that the timing of the hypoxic ischemic injury should be deferred to an obstetrician and neonatologist who are experts in child birth.

[74]          He said from the description of sister Moletsane, that Tshepiso was pink, and was crying and was able to breastfeed, the Apgar score would have been good and it is unlikely that Tshepiso would have respiratory problems and he could not think of a resuscitative measure or anything in addition to be done. A baby would not require oxygen if the baby was pink. You would only give oxygen if the baby was sianosed or bluish looking. You only refer a baby to another specialist if there is clinical grounds for referral, for example if the baby did poorly with the Apgar score or the baby needed resuscitation. There are no clinical grounds why Tshepiso had to be referred to another specialist such as a paediatrician or a neonatologist. Babies who have hypoxic ischemic encephalopathy injuries are managed by paediatricians and paediatric neurologists. Where a baby is breathing well or the respiration is normal there are no grounds for the invasive manoeuvre of ventilating the patient. There are side effects and problems that come with ventilation. Oxygenation of the baby was not required. “Ventilation would have been an extreme measure”. He explained oxygenation means supplementing oxygen. If a baby is pink, it implies that there is enough oxygen in the baby’s circulation. An incubator itself does not give oxygen but one can place a tubing that gives supplementary oxygen in the incubator. You can also use a mask to give oxygen and ventilation.

[75]          Under cross examination, Dr Modumo agreed that on plaintiff’s set of facts it would have been justified to give oxygen to Tshepiso.

F.             EVALUATION

                 Negligence

[76]          The test as regards professional negligence is whether a reasonable practitioner in the circumstances would have foreseen the reasonable possibility of his conduct injuring another and would have taken reasonable steps to guard against its occurrence, and whether the practitioner concerned failed to take such steps[2]. The Supreme Court of Appeal (SCA) in Mkhatswa v Minister of Defence[3] approved the above stated test for negligence, subject to the following qualification:

“It is probably so that there can be no universally applicable formula which will prove to be appropriate in every case… Notwithstanding the wide nature of the inquiry postulated in para (a)(i) of Holmes JA’s formula – and which has earned the tag of the absolute or abstract theory of negligence – this Court has….. acknowledged the need for various limitations to the broadness of the inquiry where the circumstances have so demanded. For example, it has been recognised that, while the precise or exact manner in which the harm occurs need not be foreseeable, the general manner of its occurrence must indeed be reasonably foreseeable….

Too rigid an approach in borderline cases could result in attributing culpability to conduct which has sometimes been called negligence “in the air …..Inevitably the answer will only emerge from a close consideration of the facts of each case and ultimately will have to be determined by judicial judgment …..whether or not conduct constitutes negligence ultimately depends upon a realistic and sensible judicial approach to all the relevant facts and circumstances that bear on the matter at hand. What also needs to be emphasised is that what is required to satisfy any test for negligence is foresight of the reasonable possibility of harm. Foresight of a mere possibility of harm will not suffice.” (own emphasis)

[77]             In Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd^[4] the appeal court reiterated that the benchmark for negligence is what a reasonable person in the same circumstances as defendant would have done. In Mukheiber v Raath^[5], the Court held that the ultimate analysis is whether in the particular circumstances the conduct complained of fell short of the standard of a reasonable person, or in this matter, the appropriate standard for the relevant medical personnel applicable. In respect of medical practitioners and nurses this is a profession that demands special knowledge, skill and care and the measure is the standard of competence that is reasonably expected of a member of that profession^[6].

[78]          Plaintiff relies on breach of an agreement concluded between plaintiff and the staff at the clinic, alternatively breach of a legal duty. With regards to negligence, plaintiff’s case rests inter alia on the following:

8.3         On the date of Tshepiso’s birth the said staff;

a)     failed to keep the clinic open, to remain in attendance and to assist the plaintiff with the birth of the baby;

b)     failed to provide contact particulars in a prominent place at the clinic through which members of the public, and in particular the plaintiff, could contact them in the case of an emergency;

c)    failed to properly and professionally attend to the baby after their arrival at the clinic and in particular they failed to administer oxygen to the baby in circumstances when it was reasonably necessary for them to do so;

d)    failed to enlist the services of a gynaecologist, alternatively of a duly qualified doctor or other suitable specialist to examine and properly treat the child in circumstances when it was reasonably necessary to do so.

e)    Failed to adhere to the standard of practice of a reasonable sister or nurse in their respective positions;

in order to ensure that patients, and in particular the plaintiff, who visit the clinic are attended to without delay and to prevent the plaintiff’s baby from suffering from brain and other injuries”.

[79]          The relationship between doctors, nurses and the patient treated, involves the duty to act with reasonable care and skill and is a duty imposed by the law of delict[7]. Did sister Moletsane and Ms Motaung act with reasonable care and skill in their treatment of plaintiff and Tshepiso? Did their conduct fall short of the appropriate standard of a midwife and a nursing assistant?

[80]          In casu, there are several facts in dispute which have a direct bearing on the question of negligence, namely:-

1.            The time that plaintiff arrived at the clinic?

2.            Whether the clinic was closed when Mr Lebone arrived with plaintiff at the clinic;

3.            Who assisted plaintiff on her arrival at the clinic;

4.            Whether plaintiff was wearing denim jeans;

5.            Whether plaintiff was wheeled into the clinic with the baby in her jeans and underwear;

6.            Whether it was Ms Motaung or sister Moletsane who cut the baby’s umblical cord;

7.            Whether Tshepiso cried at the clinic; and

8.            Whether Tshepiso breastfed at the clinic.

[81]          It is trite that when there are two different versions before Court, plaintiff can only succeed if she satisfies the Court that her version is true and accurate and therefore acceptable, and the version of defendant is therefore false and falls to be rejected.  In deciding whether the evidence is true or not, the Court will weigh up and test plaintiff’s allegations against the probabilities.  If the balance of probabilities favour plaintiff, then the Court will accept her version as being probably true.  If however the probabilities are evenly balanced, plaintiff can only succeed if the Court nevertheless believes the plaintiff’s witnesses and is satisfied that the evidence is true and defendant’s version is false[8]. 

[82]          The duty of this Court therefore is to establish, on the balance of probabilities, which of the two versions is more probable and more likely.  The procedure to be adopted in such a case has been aptly set out in Stellenbosch Farmers’ Winery Group Ltd & Another  v  Martell et Cie & Others[9], where the Court stated as follows:

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows.  To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses, (b) their reliability, and (c) the probabilities.”

[83]          In deciding whether a witness is credible or not depends mainly on what he or she says, whether his or her evidence is consistent with what he or she said elsewhere or with what other people have said, whether it seems truthful in the light of all the circumstances[10]. I turn to consider the evidence in respect of the factual disputes referred to supra.

[84]         What time did plaintiff arrive at the clinic and at what time was she attended to by the nursing staff?

84.1      Plaintiff testified that she knew the time as she looked at the time on her cellphone. She testified that she arrived at the clinic at 7:50 or 7:55 and Tshepiso was born at around 8:14 – 8:15 and Ms Motaung arrived between 8:25 and 8:30.

84.2      Mr Lebone contradicted plaintiff’s version as he testified that they arrived at the clinic at 7:00.

84.3    Plaintiff consulted various experts and gave them different times when she arrived at the clinic, namely:

a)            Dr Kganane                       7:50

b)            Dr Mogashwa                    7:45

c)            Dr Moja                               7:55

d)            Dr Malebane                     8:00

e)            Dr Lewis                             before 8:00

f)             Dr Sevenster                     at 8:00

84.4      Plaintiff also gave the experts different times when the nursing staff arrived, namely:

a)          Dr Moja - the clinic staff arrived at 8:15.

b)          Dr Sevenster - a sister arrived at 8:30.

c)          Dr Lewis - she was helped by nursing staff at 8:30.

d)          Dr Malebane - she delivered at around 8:15 and the nurse arrived 25 to 30 minutes after delivery.

e)          Dr Mogashoa - she delivered at 8:15 and the nurse arrived 10 minutes after delivery.

84.5      Ms Motaung said she was inside the clinic when she saw Mr Lebone arrive at around 8:00. She directed him to enter the clinic yard and called sister Moletsane. Sister Moletsane corroborated her version that Ms Motaung called her saying there is maternity emergency. Ms Jaula further corroborated that she arrived at 8:00 and while she was dusting she heard sister Moletsane request a pair of scissors. Both Ms Motaung and Ms Jaula said they did not see Mr Lebone’s vehicle when they arrived at the clinic.

84.6      From the aforegoing it is apparent that plaintiff’s evidence regarding the time that she arrived at the clinic and the time she was assisted by the nursing staff at the clinic is inconsistent.

[85]        Was the clinic closed when Mr Lebone arrived with plaintiff?

85.1    Plaintiff testified that on arrival at the clinic they found the security guard who informed them that there were no nurses. When plaintiff was questioned why they didn’t enter the clinic yard earlier she said “Mr Lebone is the one who parked in front of the gate. I do not know if the gate was locked because Mr Lebone is the one who stopped there but they had already told us that the nurses are not present”.

85.2    Mr Lebone said that on arrival at the clinic the gate used by vehicles was closed. He said the security guard told them that the nurses had not arrived. He said there is another gate used by pedestrians and he told plaintiff to alight but she did not alight. Mr Lebone testified that when he observed that plaintiff was unable to alight, he called Maria Tlhabanyane who after seeing plaintiff entered the clinic using the pedestrian gate and returned with a cleaner who was carrying a blanket. He said he then saw Ms Motaung coming on duty and she also assisted plaintiff. They then instructed him to take the vehicle inside the clinic yard

85.3    Both Ms Motaung and sister Moletsane testified that they arrived at around 7:00 and were inside the clinic when Mr Lebone arrived. Ms Motaung said when she arrived at 7:00 the security, the cleaner, Jane Moletsane and the night nurse were there. She said sister Moletsane was there and the clerk Ms Jaula arrived at 8:00. Ms Jaula corroborated their version and said that both Ms Motaung and sister Moletsane were present when she arrived at 8:00.

85.4    Neither plaintiff nor Mr Lebone testified that the clinic was closed. They testified that they heard that the nurses had not arrived. There is no evidence that the clinic which is a 24 hour clinic was indeed closed. On probabilities the clinic was open as Mr Lebone said that Ms Tlhabanyane entered the clinic using the pedestrian entrance and returned with a cleaner. There is no evidence to gainsay defendant’s evidence that the clinic was open and that sister Moletsane and Ms Motaung were there at 7:00 and were taking over from the night staff. It is improbable that the clinic would be closed and that there would be no staff to assist plaintiff if there had to be a handover from the night staff to the day staff. It is further improbable that all the staff would have arrived late.

[86]          Was plaintiff wearing a denim?

a)        Plaintiff testified that she wore a long black skirt and a panty. She denied that she wore a denim or jeans.

b)       Mr Lebone contradicted plaintiff’s version and testified that plaintiff was wearing a black thing… “a jean thing”. He could not say whether it was a pants or skirt, just that it was big.

c)         All three witnesses for defendant, namely sister Moletsane, Ms Motaung and Ms Jaula corroborated each other and said plaintiff was wearing a denim jeans and that sister Moletsane cut the jeans to remove the baby. They however contradicted each other regarding how sister Moletsane cut the denim to remove the baby.

d)        Sister Moletsane said she requested Ms Motaung to help lift plaintiff’s legs when she cut the jeans. She said she cut the left leg of the jeans. She said she remember the facts of this case very well because it was exceptional because plaintiff delivered the baby in her panty inside a motor vehicle. Ms Motaung described the jeans as a bogard and corroborated sister Moletsane’s evidence that she assisted her to cut the pants and was supporting plaintiff’s legs. She also corroborated sister Moletsane’s evidence that she cut the left leg of the jeans as the baby was on the left side. Ms Motaung also stated that she remembered the incident because it was the first time she saw a baby that was born inside a pair of jeans.

e)        When considering the aforegoing evidence, coupled with the fact Mr Lebone testified that plaintiff wore a “jean thing”, then I am of the view that defendant’s version is more probable that plaintiff wore a denim which was cut by sister Moletsane.

[87]          Did sister Moletsane or Ms Motaung cut the baby’s umblical cord. Was the  umbilical cord cut in the vehicle or while plaintiff was seated in a wheelchair, in the clinic.

                 87.1    Plaintiff testified that Ms Motaung cut the umbilical cord when she arrived and that she took the baby into the clinic. She further testified that Ms Motaung put her on a bed in the clinic.

                 87.2    Ms Motaung, sister Moletsane and Ms Jaula all corroborated each other that plaintiff was seated on her side in a wheelchair in the clinic and that sister Moletsane cut the umbilical cord and took the baby into the ward.

                 87.3    Although sister Moletsane’s testimony that she found plaintiff seated at the back of the vehicle and not in front of the vehicle is false and there are contradictions regarding how sister Moletsane cut plaintiff’s jeans, I have taken the fact that this incident occurred 15 years ago and that the medical staff at the clinic had to act swiftly when they discovered that plaintiff had delivered in the vehicle into consideration. Further sister Moletsane’s evidence that there was no space in the vehicle to assist plaintiff and that is the reason they moved plaintiff into a wheelchair and assisted her in the corridor of the clinic is corroborated by Ms Motaung. Plaintiff did not tender any evidence regarding how the baby’s umbilical cord was cut in the motor vehicle, while Ms Motaung and sister Moletsane explained how Ms Motaung lifted plaintiff’s legs in the wheelchair and sister Moletsane cut the jeans on the left side, cut the umbilical cord and removed the baby.

87.4      I am of the view that the version that it was sister Moletsane and not Ms Motaung who cut the umbilical cord is more probable because Ms Motaung was a credible witness who did not contradict her evidence in any material respect. She testified confidentially that in her scope of practice and training she would never cut the umbilical cord as this was done by a sister or midwife.

[88]        Did Tshepiso cry and was she breastfed in the clinic?

88.1      Plaintiff testified that she did not hear Tshepiso cry and she did not breastfeed he  in the clinic. She said Tshepiso was put in an incubator and they were discharged at 12:00. She said Tshepiso cried for the first time when she was at home and she breastfed her at her home.

88.2      Ms Motaung, sister Moletsane and Ms Jaula all corroborated each other in the following material respects:

a)        Tshepiso cried after sister Moletsane took her into the maternity ward;

b)       Plaintiff breastfed Tshepiso;

c)        Tshepiso was pink in colour.

88.3      There is overwhelming evidence that plaintiff breastfed Tshepiso at the hospital. Plaintiff consulted with various experts who noted or reported the following:

         a)      Dr Malebane said plaintiff and baby were discharged between 10:00 and 12:00. At that stage according to plaintiff, the baby had been fine/normal and breastfed without any difficulties. He also said according to plaintiff the baby had been returned to her and there seems to have been no problem with the baby latching and sucking.

                  b)       Dr Kganane testified that plaintiff told her that the baby was breastfeeding and was discharged because the baby was breastfeeding and there was no problems with the baby. Dr Kganane stressed that “any health professional would look at feeding of a child because this is survival of the child….. part of the assessment is also an assessment of the sucking because that tells you what the brain is doing. So if you are sucking then you are well enough to go home”

c)       Dr Moja in his report said “the baby and the mother were discharged home on the same day, she noticed that the baby was awake, moved her limbs and could suck the breast”.

                 d)      Dr Mogashoa testified that plaintiff told her that Tshepiso was able to suck and was well and active after birth and was discharged on the same day. She said she interviewed plaintiff in the language she spoke and she wrote notes as plaintiff spoke. She produced the written note at Court. Her handwritten notes were written on the date of assessment. In her handwritten notes she documented “baby was fine, active, crying and sucking”. She said this was part of the interview with plaintiff when she asked plaintiff specific questions. She said it is strange that plaintiff changes her version because Dr Khesave also wrote the same. On cross examination, she was questioned that in her report she wrote “baby was fine, active, crying and sucking well” and that she did not state that this was at the time of discharge. She said her understanding was that it was at the time of discharge and not at the time that she was at home because nurses would not discharge a baby who is not feeding well. She reiterated that this was the information given to her by plaintiff.

e)       Plaintiff did not call their expert Dr Khesave, the paediatric neurologist to testify. Dr Khesave in his report stated that “according to Ms Mthombeni, Tshepiso was able to latch and suck well prior to discharge”.

            88.4    The version by the experts that plaintiff breastfed Tshepiso and that Tshepiso was well when he was discharged is consistent with sister Moletsane, Ms Motaung and Ms Jaula’s version that Tshepiso was breastfed in the clinic. Sister Moletsane echoed the sentiments of Dr Kganane and Dr Mogashoa when she said, “There is no way that you can discharge a baby whilst the baby is unable to suck”. Plaintiff also testified that Tshepiso was well when  she was discharged. She said “yes when I was going home I saw her being normal, fine, the baby was fine”.

            88.5    During examination in chief, when plaintiff was questioned whether she breastfed Tshepiso in the clinic, she replied that she could not remember whether she breastfed or not. However, under cross examination she contradicted her earlier evidence and said “the baby was handed to me when I was leaving. The baby was sleeping at that time. I never breastfed the baby at the clinic”.

            88.6    The experts also testified that plaintiff informed them that Tshepiso was well when she was discharged which version is consistent with sister Moletsane’s evidence that Tshepiso’s condition was satisfactory. She said “the baby was in a good condition and did not need oxygen as her skin was pink, she was crying and her reflexes were present”.

88.7    I am of the view when considering the overwhelming evidence supra, that the probabilities favour defendant’s version that plaintiff breastfed Tshepiso while she was in the clinic and that Tshepiso cried, was pink in colour and was well prior to being discharged.

[89]          When considering the aforegoing evidence, it is apparent that Sister Moletsane, Ms Motaung and Ms Jaula corroborated each other’s evidence in most material respects. Although there are discrepancies referred to hereinbelow, I accept as stated supra, that because of the lapse of 15 years and because the medical staff had to act quickly as it was a medical emergency, that this may account for the discrepancies. However what is consistent in their evidence as stated supra is that:

·                   The clinic was open when plaintiff arrived;

·                   Plaintiff delivered in the motor vehicle;

·                   Plaintiff wore a pair of denim;

·                   There was insufficient space in the vehicle to assist plaintiff;

·                Plaintiff was wheeled into the clinic’s corridor and was seated on her side on the wheelchair.

·                   Plaintiff’s denim and umbilical cord was cut by sister Moletsane;

·                   Tshepiso  cried when sister Moletsane took her into the maternity ward;

·                   Plaintiff breastfed Tshepiso in the clinic;

·                   Tshepiso was pink in colour.

[90]          Although, Mr Pistor suggested that the defence witness may have discussed the case before they testified, this is not in my view borne from the evidence as sister Moletsane testified that plaintiff was seated at the back of the vehicle while Ms Motaung testified that plaintiff was in the front of the vehicle. Further as stated supra, the witnesses gave different versions of how sister Moletsane cut plaintiff’s jeans. Sister Moletsane testified that she cut plaintiff jeans from the bottom upwards on the left leg and loosened it. This conflicts with Ms Motaung’s evidence that sister Moletsane cut the jean from the top under the belt from the right side down to the crotch area on the left leg. They both testified that it was the left leg of the jeans that was cut. Ms Jaula corroborated sister Moletsane’s evidence that the jean was cut from the bottom up until the side. Ms Jaula however conceded that everything happened very fast and she could not remember the details. Sister Moletsane said she and Ms Motaung have not seen each other or discussed this matter as she works in Weltevrede and Ms Motaung is on pension. She said she consulted with defendant’s attorney for the first time in December 2017.

[91]          Ms Jaula gave her testimony clearly and there were no material contradictions in her evidence. She explained that she looked for the missing records at the old clinic where the files were stored. Ms Motaung was a good witness who answered questions put to her in examination in chief and in cross examination very confidentally. When discrepancies regarding the cutting of the jeans was put to Ms Motaung in cross examination, she answered confidentally “I saw her cutting it from top to bottom but not too long. I was present, I am the one who was supporting the legs of the plaintiff”, the jeans was removed when she was already on the bed, she only removed the baby and went away with the baby”. She denied that plaintiff was seated at the back of the vehicle. There were also no material contradictions save for those referred to supra, in sister Moletsane’s evidence in chief and evidence in cross examination. Sister Moletsane completed the maternity register and the RTHC. Sister Moletsane explained why she recorded in the maternity register that it was ‘head on perineum’ and not BBA. She said it means that the baby was already out and they did not deliver but that it was confusing because the baby was still in plaintiff’s underwear. She also explained that she did not complete the Apgar because it is completed in the first 5 minutes after delivery and she did not know when the baby was delivered. Plaintiff testified that she was given the RTHC on the day she was discharged from the clinic.

[92]          The other issue which Mr Pistor stressed is that Ms Moletsane testified that she administered oxygen to Tshepiso in the incubator. This aspect was fully canvarssed with sister Moletsane who testified that she put Tshepiso in the incubator to keep her warm and safe and because the incubator has oxygen. She did not administer more oxygen to Tshepiso in the incubator. The main reason was for warmth. This is corroborated by the experts. Dr Kganane said new born babies born outside normal circumstances lose heat. Hence one of the management of treating a new born is re-establish body heat by putting them in an incubator. The function of an incubator is to re-establish and maintain body heat. She said the incubator is for warmth which has oxygen but that is not necessarily resuscitation oxygen. Dr Kganane said the incubator has “a little bit more oxygen than you have in a room”.

[93]          It is of concern that a version was put to plaintiff’s witnesses by counsel for defendant that sister Moletsane held the baby with one hand at its ankle with the baby hanging down which version was denied by sister Moletsane. It begs the question why the wrong version was put to plaintiff’s witness. Sister Moletsane explained that perhaps it was understood in that way because she said she tilted her head. There are two different versions and it begs the question whether the defendant’s legal representative consulted fully with their witnesses before the hearing or whether the version given to the legal representatives in consultation differed to the version they gave in Court. This Court cannot reject the defence evidence based on the fact that an incorrect version was put to plaintiff’s witnesses. The crux of the matter which was corroborated by Ms Motaung and Ms Jaula is that sister Moletsane wiped the secretion and after holding the baby and tilting her head, some secretion fell out and Tshepiso cried when she walked with her into the ward.

[94]          Plaintiff was in my view not a very reliable witness. As stated supra, she gave two different versions in Court regarding whether she breastfed Tshepiso. Initially she said she could not recall and later she denied breastfeeding her. Also she told the experts when she consulted with them that Tshepiso was breastfed at the clinic. On plaintiff’s version, Ms Tlhabanyane and a cleaner came to the vehicle after she has delivered and the baby was lying lifeless. She could not to provide any satisfactory explanation why she did not seek assistance from them. There were also discrepancies regarding the times that the medical staff arrived and assisted her at the clinic. She further did not give any detail of how Ms Motaung cut the umbilical cord in the vehicle and removed the baby.

[95]          Having accepted on probabilities that Tshepiso cried, was breastfed and was pink in colour at the clinic, the next question for consideration is whether it was necessary in the circumstances for the medical staff at the clinic to administer oxygen or refer Tshepiso to a hospital or keep her in the clinic for further observation. In other words, did the medical staff fail to perform their duties in a professional manner with such skill as is reasonable for such medical staff.

[96]       The following experts all agree that if indeed Tshepiso was crying, breastfed and was pink in colour that there was no need to administer oxygen:

a)         Plaintiff’s paediatrician, Dr Lewis conceded under cross examination that if Tshepiso was breathing, crying, breastfed and pink in colour that there was no need to resuscitate her.

b)        Defendant’s gynaecologist, Dr Malebane said if the baby was breathing and pink in colour and breastfed there is no respiratory distress.

c)         Defendant’s paediatrician, Dr Kganane said there was no need to administer oxygen or monitor for 24 hours or refer to a hospital as the baby was conscious and the baby was sucking. She said “The steps taken by sis Moletsane in her treatment of the  baby was normal namely to remove excessive secretions and stimulate, wrap the baby and place the baby in an incubator”

d)        Dr Mogashoa, defendant’s paediatric neurologist, said if Tshepiso was active, breathing, pink in colour and breastfeeding there was no need to administer oxygen to the baby or to refer Tshepiso to a paediatrician.

e)        Dr Marumo, defendant’s neuro surgeon opined that if Tshepiso was pink, crying, and able to breastfeed it is unlikely that she had respiratory problems or would require oxygen or would need to be referred.

[97]     Plaintiff’s neurosurgeon, Dr Moja was the only expert who opined that if Tshepiso started breathing, was crying and was pink in colour, then in those circumstances there would not be a need to resuscitate immediately but there is still a need to monitor for at least 24 hours and do further investigations. He said if a patient suffers an event you still have to give oxygen until further tests are done to evaluate adequate oxygenation. Dr Kganane did not agree and said that oxygen is a drug, a form of therapy and you would not give oxygen if there are no signs or symptoms that you need oxygen. If the baby was blue or sinosed then you would give oxygen. Dr Kganane said the fact that Tshepiso was monitored for another 4 hours was ‘impressive’. This sentiment was also expressed by Dr Marumo who said you, would only give oxygen if the baby was sinosed or blue. You only refer a baby to another specialist if there is clinical grounds for referral. There are no clinical grounds why Tshepiso had to be referred to another specialist. Dr Kganane and Dr Marumo’s evidence corrolates with sister Moletsane’s evidence that “you don’t give oxygen to every baby. you only give oxygen to a baby if you see from the skin that she is not fine or she is not okay. If the baby appears bluish or blackish that gives you a sign that this baby lacks oxygen”.

[98]     I accept the views opined by defendant’s experts and plaintiff’s expert, Dr Lewis that if Tshepiso cried, was breastfeeding and pink in colour that there was no need to administer oxygen to Tshepiso or to observe her for 24 hours or to refer her to hospital. Dr Lewis referred to an article from the World Health Organisation that said that babies who require extensive resuscitation should have ongoing assessment for at least 12 to 24 hours after birth. There is no evidence that Tshepiso required extensive resuscitation to warrant 12 to 24 hours assessment as opined by Dr Moja. Sister Moletsane’s evidence was that she removed the secretion from Tshepiso’s nose and mouth with gauze. She held the baby’s head with the right hand so the remaining secretions could flow out and when she entered the labour room the baby cried. I accept Dr kganane’s evidence that sister Moletsane’s treatment of Tshepiso was normal. It should also be stressed that the yardstick to test whether sister Moletsane and Ms Motaung were negligent is that of the reasonable health care midwife and nursing assistant in a clinic. The plaintiff failed to adduce any evidence of a midwife or nursing sister to test whether a reasonable midwife such as sister Moletsane or nursing assistant such as Ms Motaung would have treated plaintiff and Tshepiso any differently from sister Moletsane and Ms Motaung. Accordingly I am of the view that plaintiff failed to prove that defendant was negligent.

[99]     I have briefly considered the requirement of causation hereinbelow although it is not necessary in view of my finding that defendant was not negligent.

Causation

[100]   Plaintiff must allege and prove the casual connection between the negligent act relied upon and the damages suffered^[11]. The legal test for causation has been formulated in a number of cases. In ZA v Smit^[12] the court at paragraph 30 held that:

“The criterion applied by the court a quo for determining factual causation was the well-known but-for test as formulated, e.g by Corbett CJ in International Shipping Co (Pty) Ltd v Bentley^[13]. What it is essentially lays down is the enquiry – in the case of an omission – as to whether, but for the defendant’s wrongful and negligent failure to take reasonable steps, the plaintiff’s loss would not have ensued. In this regard this court has said on more than one occasion that the application of the ‘but for test’ is not based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday life experiences. In applying this common-sense, practical test, a plaintiff therefore has to establish that it is more likely than not that, but for the defendant’s wrongful and negligent conduct, his or her harm would not have ensued. The plaintiff is not required to establish this casual link with certainty”.

[101]   The above test was applied in Lee v Minister of Correctional Services^[14], where the Constitutional Court said:

“In the case of “positive” conduct or commission on the part of the defendant, the conduct is mentally removed to determine whether the relevant consequence would still have resulted. However, in the case of an omission the but-for test requires that a hypothetical positive act be inserted in the particular set of facts, the so-called mental removal of the defendant’s omission. This means that reasonable conduct of the defendant would be inserted into the set of facts. However, as will be shown in detail later, the rule regarding the application of the test in positive acts and omission cases is not inflexible. There are cases in which the strict application of the rule would result in an injustice, hence a requirement for flexibility. The other reason is because it is not always easy to draw the line between a positive act and an omission. Indeed there is no magic formula by which one can generally establish a causal nexus. The existence of the nexus will be dependent on the facts of a particular case”.

[102]   Regarding experts’ evidence, the Court in Michael and Another v Linksfield Park Clinic Ltd and Another^[15] held that what is required in the evaluation of such evidence is to determine whether and to what extent their opinion advance are founded on logical reasoning. The SCA in Jacobs and Another v Transnet Limited t/a Metrorail and Another^[16] held that:

 “It is well established that an expert is required to assist the court, not the party for whom he or she testifies. Objectivety is the central prerequisite for his or her opinions. In assessing an expert’s credibility an appellate court can test his or her underlying reasoning and is in no worse a position than a trial court in that respect”.

[103]   In Pricewaterhousecoopers Inc v National Potato Cooperative Ltd^[17] the SCA examined when expert opinion is admissible, and the duties and responsibilities of an expert witness in civil cases:-

 “[97]               Opinion evidence is admissible „when the Court can receive “appreciable help” from that witness on the particular issue‟. That will be when: „… by reason of their special knowledge and skill, they are better qualified to draw inferences than the trier of fact. There are some subjects upon which the court is usually quite incapable of forming an opinion unassisted, and others upon which it could come to some sort of independent conclusion, but the help of an expert would be useful.‟ As to the nature of an expert’s opinion, in the same case, Wessels JA said: „… 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 possibly 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. (Own emphasis)

[104]        Dr Moja opined that Tshepiso suffered a hypoxic ischemic injury. He said there was the initial insult and subsequent events occurred that manifest as chronic in the last stage. Had Tshepiso received oxygen after the initial acute profound event, this could have averted the damage and reversed the damage caused by the acute profound event.

[105]        Dr Lewis opined that Tshepiso suffers from spastic quadriplegia, a type of cerebral palsy that follows intrapartum or peripartum insult. According to Dr Lewis the MRI report said there were two types of changes, namely partial prolonged ischemia and acute profound ischemia. He opined that there was a compromised foetus at some time from 3:00 until 8:25 and a sentinel event occurred with the rupture of the membranes, which required immediate resuscitation which the nurses failed to provide. He said an acute problem occurred during the intrapartum period from the time of labour to the baby being born. Dr Lewis referred to the opinion of Dr Volpe and said that two features were present to arrive at a diagnosis that it was an intrapartum insult. He also said the delay in transferring Tshepiso from the home to the clinic and the fact that there were no nursing staff available to resuscitate Tshepiso contributed significantly to the poor outcome. He accepted that on defendant’s version in respect of partial prolonged ischaemia the clinic sister could not have monitored the labour and pick up any dysfunction.

[106]        Dr Malebane opined that the acute profound ischemic injury occurred in the second stage of labour. He said on probabilities the injury occurred around the time plaintiff went into labour, the delivery and immediate post-delivery. The injury would have been preceded by abnormalities. The injury could have occurred in the vehicle while the insult could have occurred earlier. Dr Malebane accepted the radiologist finding in their joint minutes that “due to the fact that the patient had her entire labour outside the health facility, the resultant brain injury cannot be attributed to any action or omission by the health care workers”. He said plaintiff told her that when she and the baby were discharged, the baby was fine/normal and breastfed without any difficulties. There was no problem with the baby latching and sucking.

[107]        Dr Kganane opined that Tshepiso had mixed cerebral palsy. She said there was no objective evidence to confirm hypoxic ischemic encephalopathy. She was not convinced that birth asphyxia was the cause of Tshepiso CP. Dr Mogashoa, said Tshepiso has a mixture of spastic quadriplegic plus dystonia. Tshepiso neonatal course did not support an ideological diagnosis of hypoxic ischemic encephalopathy. The insult occurred in utero or in the first month of life and did not occur during labour. Tshepiso has partial prolonged hypoxia and acute profound hypoxia. It is difficult to identify when the hypoxic event occurred. One cannot conclude when the insult occurred. Dr Marumo, opined that Tshepiso has hypoxic ischemic encephalopathy. The radiologists opined that Tshepiso’s MRI scans are indicative of hypoxic ischaemic brain injury.

[108]        The following experts agreed that the timing of the hypoxia should be deferred to the obstetrician: the radiologists, Dr Kamolane and Dr Jogi and the neuro surgeons, Dr Moja and Dr Marumo. Dr Keshave and Dr Mogashoa agreed that it is difficult to identify when the hypoxic event occurred.

[109]        Plaintiff failed to call his obstetrician, Dr Sevenster. Dr Sevenster consulted with plaintiff and Tshepiso and prepared a medico legal report. Dr Sevenster and defendant’s obstetrician, Dr Malebane prepared joint minutes which have been referred to in paragraph 4 supra. What is of importance and significant from their joint minutes is the following:

a)        They could not commit with any degree of certainty whether Tshepiso’s poor outcome could have been related to any antenatal circumstances and if it was preventable.

b)        Because of the absence of records, they could not comment with certainty on:

·           whether the nurses were negligent ;

·           whether negligence was the cause for the poor outcome;

·           whether the poor outcome was preventable.

c)        The MRI report found an acute profound hypoxic ischemic injury. This indicates that the injury occurred in a term baby but does not indicate a timing of the brain insult.

[110]   From the aforegoing, it is apparent that the experts cannot agree when the hypoxic event occurred. Accordingly plaintiff failed to prove on a balance of probabilities the causal connection between the conduct of the nursing staff and Tshepiso’s cerebral palsy.

ORDER

[111]        In the result, plaintiff’s claim is dismissed with costs.

________________

N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING                              :  20 JUNE 2018

DATE OF JUDGMENT                          :  20 SEPTEMBER 2018

ADVOCATE FOR PLAINTIFF               :  ADV PISTOR (SC)

ADVOCATE FOR DEFENDANT            :  ADV MASEVHE

ATTORNEYS FOR PLAINTIFF               :  SEMAUSHU ATTORNEYS       

ATTORNEYS FOR DEFENDANT            :  STATE ATTORNEY

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