The Mpumalanga Department of Health has been found fully liable for the damages and brain injury of a child born at Piet Retief Hospital in 2009, but in another, separate case, was given a slight reprieve when a mother’s claim for R2.5m for general damages was turned down – although she will still be paid out R600 000 from the department, reports IOL.
In the first case in the Mpumalanga High Court (Mbombela), inadequate foetal monitoring during labour amounted to negligence and caused the child's cerebral palsy, ruled Acting Judge President Takalani Ratshibvumo in a claim brought by the child’s mother against the Mpumalanga Health MEC.
The mother sued both in her personal capacity and on behalf of her son.
The claim, initially valued at R16m, arose from alleged medical negligence during labour and delivery: the court was asked to determine liability only, with the assessment of damages postponed to a later stage.
The mother was admitted to Piet Retief Hospital in November 2009 with labour pains, and had testified that after initial monitoring, she was not assessed, eventually giving birth by forceps at about 4.15am.
Her baby did not cry immediately, so nurses slapped his feet to stimulate him: the first cry she heard was more than an hour later, a “squeaking sound”.
The baby also struggled to breastfeed, requiring feeding through a nasogastric tube. He remained in hospital for about a week, in an incubator.
He has never sat, stood, walked or spoken, is completely dependent on his mother for eating and bathing, and had suffered seizures requiring medication.
Later diagnosis was spastic quadriparesis cerebral palsy, microcephaly, profound intellectual disability and epilepsy.
Critical monitoring gaps
A central issue in the case was the hospital’s failure to properly monitor and record the condition of mother and foetus during labour, which started at about 8pm on 18 November, at which time the foetal heart rate should then have been monitored half-hourly.
This was not done, according to records. More importantly, the mother was fully dilated by 2am, but the child was only delivered more than two hours later.
There were no records of foetal monitoring during the two hours and 15 minutes between full dilation and delivery.
The plaintiff’s obstetric expert, Dr Constant Ndjapa-Ndamkou, said this was a significant departure from the required standard of care, creating a risk that developing foetal hypoxia would go undetected.
The hospital’s own expert, Dr Peter Koll, conceded that the recording of monitoring was substandard, but this did not necessarily mean the monitoring itself had not been performed.
He argued that nurses could have been monitoring the foetal heart rate without recording every observation: the court ultimately rejected this.
A crucial question not whether the child had suffered a brain injury, but when that injury occurred.
The plaintiff’s paediatric neurologist, Professor Regan Shane Solomons, testified that an MRI scan showed a partial prolonged hypoxic-ischaemic injury, linking this to a lack of oxygen and blood supply around the time of birth, while neonatologist Professor Victor Allan Davies similarly concluded that the injury was consistent with repeated episodes of hypoxia during labour.
The defence experts took a different view.
Professor Daynia Ballot argued that the child did not have hypoxic-ischaemic encephalopathy at birth, citing the recorded Apgar scores of 9/10 and 10/10, the absence of documented resuscitation, and the fact that the child appeared clinically well immediately after birth.
She placed particular emphasis on the fact that the child became seriously ill about 50 hours after birth. In her view, an intrapartum hypoxic injury would have manifested much earlier.
She accepted that the MRI showed a hypoxic brain injury but maintained that the scan could not establish when the injury occurred.
Court criticises reliability of Apgar score
Ratshibvumo ultimately found the defence’s reliance on the Apgar scores problematic. The court noted that both sides’ experts accepted that an Apgar score could not, on its own, establish whether a baby had suffered birth asphyxia.
The score provides a snapshot of the newborn’s condition at a particular moment, while an umbilical cord blood test would have provided additional information about the baby’s metabolic state. This had not been done.
The court also questioned the lack of detail showing how the recorded Apgar scores had been calculated.
The mother’s evidence that the baby did not cry immediately and required stimulation was not contradicted by the staff at the delivery. The judge said the apparently perfect Apgar scores could have been recorded incorrectly or represented only a rough assessment.
The court further rejected the suggestion that the mother’s observations could be dismissed because she was an inexperienced young mother.
Ratshibvumo found her evidence about the baby’s twitching, eye movements and inability to suckle to be direct and uncontroverted – observations consistent with the evidence concerning evolving neonatal encephalopathy.
Missing records slammed
A significant part of the court’s reasoning concerned the inadequate medical records. The defence argued that the absence of entries did not necessarily mean monitoring had not occurred, but the judge found it difficult to accept this position, with the hospital's own experts having conceded that the record-keeping and monitoring documentation were “undeniably substandard”.
The court said it was contradictory to rely heavily on the reliability of the hospital’s Apgar scores and postnatal assessments while simultaneously acknowledging that the same staff had failed to comply with mandatory monitoring and recording requirements.
The judgment concluded that, where there was no evidence demonstrating that proper monitoring had taken place, the court could conclude there had been no monitoring during the periods not reflected.
The court found that staff had a duty to monitor the foetal heart rate every 30 minutes during active labour and more frequently during the second stage.
The argument that a normal CTG reading shortly before the forceps delivery cleared the department was rejected, the court holding that a single reading could not establish that the foetus had remained well during the preceding unmonitored period.
Had proper monitoring been performed, developing hypoxia would probably have been detected and earlier intervention – including an earlier forceps delivery or emergency C-section – could have prevented the prolonged hypoxic injury.
The judge concluded that the plaintiff’s experts had presented a logical and medically coherent chain of events: inadequate monitoring resulted in undetected foetal distress during a prolonged second stage of labour, which caused a hypoxic-ischaemic brain injury that manifested as neonatal encephalopathy and ultimately resulted in cerebral palsy.
The MEC for Health was consequently declared liable for 100% of the agreed or proven damages, and the department was also ordered to pay the plaintiff’s costs relating to the merits of the case, including the qualifying, preparation and attendance fees of her expert witnesses.
The actual amount of compensation has not yet been determined.
Reprieve for MEC
In a separate case, the same court dismissed another mother’s attempt to increase the damages awarded for her daughter who was born with cerebral palsy, ruling that the child’s death before the compensation was determined was a decisive factor in limiting the award.
The court upheld an earlier award of R600 000 in general damages against the department, rejecting the mother’s argument that she should instead receive R2.5m, ruling that general damages are intended to compensate an injured person for pain, suffering and loss of amenities of life and not to enrich a deceased person’s estate after they have died.
The case centred on a baby girl born with cerebral palsy in February 2017.
Her mother sued the Mpumalanga Health MEC on her behalf, claiming various forms of compensation arising from the birth injury. The department’s liability had already been settled in May 2022, with the parties agreeing that the mother had succeeded on the merits of her case.
But before the court could determine the amount of compensation, the child died in August 2023.
When the quantum trial eventually proceeded in April 2025, the parties relied solely on expert medical reports and led no oral evidence. The trial court awarded R600 000 in general damages.
The mother appealed, describing the award as unreasonable, inadequate and significantly lower than awards made in similar cerebral palsy cases.
She argued that fair compensation should have been R2.5m and relied heavily on previous court decisions, particularly the Gauteng High Court’s decision in Booyse and Another v MEC for Health, where a child with cerebral palsy received R1.5m in general damages.
Her legal team contended that the trial judge had failed to properly consider comparable awards and had incorrectly applied earlier legal principles governing damages.
The full Bench, comprising Ratshibvumo, along with Acting Judge M I Mangena and Acting Judge Z E Gumede, found that the comparison with Booyse was fundamentally flawed.
In that case, the child was still alive when the court made the award and had an agreed life expectancy of 17 years. The R1.5m award therefore reflected compensation for ongoing pain and suffering during the child’s expected remaining lifetime.
By contrast, the Mpumalanga child had already died before the damages were determined.
The judges said that distinction was crucial. The appeal was dismissed, but the judges declined to order the mother to pay the department’s legal costs.
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