Medical negligence claims arising from labour and delivery frequently involve difficult questions about the cause of neurological injury in newborn children, but establishing negligent care is not sufficient to establish liability. A plaintiff must also prove that the negligence caused or materially contributed to the injury, write Natasha Naidoo and Sibusiso Madisha from Fairbridge Attorneys.
The Supreme Court of Appeal (SCA) decision in NK obo UK v MEC for Health, Eastern Cape, illustrates this distinction. The case concerned a child, UK, who sustained a severe hypoxic-ischaemic brain injury resulting in cerebral palsy. The central question was whether the injury resulted from negligent management of labour or from an inflammatory process that had developed before labour commenced.
By a majority, the SCA found that the required causal connection between the alleged negligence and the child's injury had not been established and dismissed the appeal.
Background
UK was born at Dora Nginza Provincial Hospital in March 2019. His mother, NK, instituted action against the MEC for Health, Eastern Cape, alleging that negligent management of her labour and delivery caused UK’s brain injury and cerebral palsy.
The trial court dismissed the claim, finding that causation had not been established as the medical evidence indicated that the brain injury predated labour. The full court similarly dismissed the appeal, accepting the MEC's expert evidence that severe acute chorioamnionitis and associated placental inflammatory changes were responsible for the injury.
NK appealed to the SCA.
The issue before the SCA
The central issue was whether the hospital staff’s alleged negligence caused or contributed to UK’s brain injury. NK relied on prolonged labour, inadequate monitoring, repeated vaginal examinations, unsuccessful vacuum extraction attempts and delayed intervention.
The MEC contended that the injury resulted from severe acute chorioamnionitis, accompanied by maternal and foetal inflammatory responses and abnormalities identified on histological examination of the placenta. The MEC’s experts maintained that the pathological process predated labour and that the injury would have occurred irrespective of the intrapartum management.
The SCA’s decision
The SCA was divided on causation. The minority considered the management of NK’s labour to be significant although accepting that chorioamnionitis may have been present before labour. It concluded that the prolonged labour and poor obstetric management probably contributed to the brain injury. It also considered the failure of the MEC to call the treating healthcare professionals to explain their conduct to be significant.
The majority placed greater emphasis on the objective medical evidence, particularly the placental histology and blood gas results.
Histological examination revealed severe acute chorioamnionitis with maternal and foetal inflammatory responses, as well as funisitis and vasculitis. The MEC’s experts explained that these findings demonstrated an inflammatory process that had developed before labour and impaired placental blood flow and oxygen delivery to the foetus.
The majority accepted that this process was the probable cause of the hypoxic-ischaemic brain injury. It was also critical of the appellant’s expert evidence for failing adequately to account for the significance of the placental findings.
While accepting that aspects of the intrapartum monitoring were substandard, the majority held that NK had not established that these shortcomings caused or materially contributed to the injury.
Infection during pregnancy
Chorioamnionitis is inflammation of the foetal membranes, commonly associated with intrauterine infection. It may present with maternal fever, uterine tenderness, an elevated maternal heart rate and other signs of infection. Importantly, however, it may also be subclinical, with the mother displaying no obvious symptoms.
The potential consequences extend beyond maternal infection. Inflammation may involve the placenta, membranes, umbilical cord and foetal circulation. Funisitis, which involves inflammation of the umbilical cord, and foetal vasculitis are particularly important because they indicate a foetal inflammatory response.
In this case, the expert evidence accepted by the majority was that the inflammatory process impaired placental blood flow and oxygen delivery to the foetus. This provided an alternative explanation for UK’s hypoxic-ischaemic brain injury, independent of the management of labour.
The judgment therefore illustrates why infection and placental inflammation must be considered when investigating an adverse neonatal outcome. A neurological injury identified after birth does not necessarily mean that the damaging event occurred during labour.
Importance of preserving the placenta
A particularly important feature of this case is that the placenta was preserved and subjected to histological examination.
This provided objective evidence of severe acute chorioamnionitis, maternal and foetal inflammatory responses, funisitis and vasculitis. These findings became central to determining the probable mechanism and timing of UK’s injury.
Had the placenta been discarded, potentially decisive evidence regarding the cause of the injury would have been lost.
This is particularly significant where chorioamnionitis is subclinical. A mother may display no obvious symptoms of infection during pregnancy or labour, yet examination of the placenta after delivery may reveal substantial inflammation and evidence of a foetal inflammatory response.
Placental pathology may therefore assist experts in distinguishing between antenatal and intrapartum causes of neurological injury. Where a baby is born compromised, or there is suspected hypoxia, neonatal encephalopathy, infection or another unexplained adverse outcome, the placenta should, where clinically indicated, be preserved and submitted for appropriate pathological examination.
Key takeaways
The judgment confirms that negligence and causation are separate requirements. Even where obstetric care is substandard, liability will not follow unless the negligent conduct is shown, on a balance of probabilities, to have caused or materially contributed to the injury.
The judgment also highlights the importance of considering infection and inflammation when investigating birth injuries. Chorioamnionitis may be clinically silent, while placental pathology may reveal an inflammatory process capable of compromising foetal oxygenation before labour.
Most importantly, the case demonstrates the evidential value of preserving the placenta after a compromised or unexplained birth outcome. In this case, histological examination provided objective evidence that ultimately played a central role in the majority’s causation finding.
The placenta may therefore be far more than a specimen routinely discarded after delivery. In the appropriate case, it may provide critical clinical and medico-legal evidence about when, how and why a neonatal injury occurred.
Natasha Naidoo (Director) and Sibusiso Madisha (Candidate Attorney) –
Fairbridges Attorneys, Johannesburg
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