The previous dismissal of a negligence claim linked to childbirth has been overturned by a KwaZulu-Natal High Court (Pietermaritzburg) judge – after an appeal brought by the curator ad litem for a minor child, and in a case where inaction and shoddy management during labour resulted in the youngster’s severe medical handicaps almost two decades ago, reports The Post.
Advocate Chamelle Jaipal, acting as the curator ad litem for the child, had brought the appeal after the mother’s death. The appeal was against the ruling handed down by a KwaZulu-Natal High Court (Durban) judge, with the respondent being the KwaZulu-Natal MEC for Health.
The appeal was set against the backdrop of a case regarding the birth on 21 July 2011, and allegations of negligent management during the mother’s labour.
She had experienced a series of complications during a prolonged labour, culminating in the child being born with severe medical conditions, including cerebral palsy and hypoxic-ischaemic encephalopathy (HIE).
According to court papers, during the early hours of 19 July 2011, and after severe labour pains the previous night, she had gone to a clinic where records reflected moderate uterine contractions and cervical dilation of 2cm.
The foetal condition was assessed as satisfactory, and continuous cardiotocograph (CTG) monitoring was started – with a reassessment several hours later, at 11.30am, revealing no progress in cervical dilation. The attending clinicians recorded a diagnosis of “poor progress”.
Her condition was discussed with a doctor, but neither the substance of that consultation nor the clinical advice given was recorded, and the woman was told she should be transferred to the hospital because “she did not have (sic) sufficient opening for (her) to be able to give birth”.
According to the court papers, she arrived at the hospital at 2pm, and was admitted for continued observation and CTG monitoring. Subsequent examinations demonstrated gradual labour progress.
By midnight, cervical dilation was recorded at 8cm, the foetal head had descended to 3/5 above the pelvic brim, and CTG remained reactive, the papers read.
“Artificial rupture of the membranes was performed, clear liquor was observed, and monitoring continued.” According to the court papers, medical records disclosed material irregularities in the maintenance of the partogram.
“An earlier entry reflecting cervical dilation of 6cm at midnight had been erased. A further entry at 2am reflecting cervical dilation at 8cm was also subsequently erased,” the papers read.
At 3am, cervical dilation remained at 8cm with the foetal head engaged at 2/5 above the pelvic brim, and the mother was noted as restless and experiencing strong contractions.
“Although the CTG was recorded as reassuring, medical review was requested and the antenatal note bore an illegible signature.”
Half an hour later, cervical dilation had advanced to between 9 and 10cm. At that stage, records recorded foetal head moulding and documented that the CTG machine was no longer functioning.
The papers read that doppler monitoring was substituted. “Importantly, the foetal heart rate exceeded 155 beats per minute and decelerations were observed during contractions. Delivery within the next hour was anticipated,” they read.
Records relating to the subsequent examination at 4.30am revealed notable inconsistencies.
“Although cervical dilation was recorded at 9cm, the notes simultaneously recorded a reactive CTG, absence of caput and moulding, and an intention to reassess after a further two hours, notwithstanding the earlier indication that delivery was imminent.”
The baby was delivered at about 5.30am by vacuum extraction.
“Records note poor maternal effort, repair of the episiotomy and that the paediatric team had been alerted. The baby was born in a depressed condition, with Apgar scores of 3 out of 10 at both one and five minutes… records at 5.45am confirmed the live birth by vacuum extraction, although the recorded Apgar scores are illegible… later diagnosed with spastic cerebral palsy and HIE.”
Judge Bruce Bedderson said the appeal turns on whether the KwaZulu-Natal High Court (Durban) correctly assessed the evidence relating to negligence and causation, and whether it was justified in dismissing the appellant’s claim.
He said it is common cause that the child suffered birth asphyxia, HIE, and subsequently developed cerebral palsy.
“The dispute concerns whether these injuries were caused by negligent intrapartum management and whether the evidence established the requisite causal connection.”
He concluded the court had materially misdirected itself in its assessment of the evidence, attaching “undue weight to disputed hospital records, despite recognising significant deficiencies in those records”.
“It failed to accord proper weight to the consensus in the expert joint minutes and did not adequately address the implications of admitted departures from accepted standards of obstetric care.
“The probabilities favoured the conclusion that the respondent’s employees failed to monitor and manage the mother’s labour in accordance with accepted professional standards … contributing to the intrapartum hypoxic injury sustained by the child. The appeal must therefore succeed.”
The matter was adjourned sine die for determination of the quantum of the claim.
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