The Gauteng High Court has dismissed an appeal by the provincial Department of Health, upholding a medical negligence finding relating to an episiotomy performed by midwives at the Chris Hani Baragwanath Hospital.
The procedure should have been left to a trained obstetrician, the court found, reports Matthew Hattingh for MedicalBrief. Post-delivery care was lacking too and the sepsis that developed compromised surgical identification ahead of and during a fistulectomy that left the patient with severe faecal incontinence.
This amounted to medical negligence, an appeal court has concluded, upholding the earlier judgment.
Ms MCC took the Gauteng Department of Health to court following the troubled delivery of her third child at the Barag on 28 March 2013. She was HIV positive and on antiretrovirals.
Two midwives performed an episiotomy and sutured the patient with absorbable stitching. Three days later MCC visited Itereleng Clinic, complaining of pain. A nurse noted “her stitches were unusual and healing would be slow”, but reassured her. At her six-week check-up, the patient reported severe pain and difficulty sitting, particularly during bowel movements. A clinic doctor prescribed antibiotics.
MCC was reluctant to return to Bara after her experiences there – it had been her third delivery at the hospital; the first had been a stillbirth – but the Department of Health insisted. In November 2013, Dr Roger Schackis diagnosed an infected episiotomy with abscess and sinus, recommending surgery and referring her to the colorectal unit. Dr Francis conducted the fistulectomy in February 2014.
Initially, the fistula appeared to have been repaired satisfactorily, but the patient soon developed severe faecal incontinence.
MCC obtained expert opinions from Professor Oettle and Professor Lindeque, who advised that her sphincter muscle had been cut during the operation, causing the incontinence.
Neither expert testified when a case of negligence was heard by the Gauteng High Court (Johannesburg) but their reports were used by other experts at trial.
In its April 2023 judgment, the trial court found the incontinence was caused by negligence of Bara staff.
The Gauteng MEC for Health took the judgment on appeal and the court dealt with two primary issues:
- Whether the pleadings covered pre-fistulectomy negligence or were confined to negligence during the fistulectomy itself; and
- Whether the factual findings were sufficiently supported by evidence.
Dismissing the appeal with costs in a judgment handed down on 25 August 2025, the appeal court found that MCC clearly pursued pre-fistulectomy negligence claims before and during the trial, where two of her three experts addressed only episiotomy and post-partum care. The MEC’s legal representative never objected and actively participated in this expanded case.
It was found that the trial court had correctly determined and applied the facts.
Quoting from joint minutes by experts in the trial, the appeal judges noted there had been no-follow up to the episiotomy even though MCC was HIV positive and at high risk of infection and with pain persisting. The clinic sister failed to examine the episiotomy area for signs of infection and tissue breakdown, “especially when the mother complained about continuous pain”.
According to the minutes, “No clinical notes could be found on the clinical examination that was performed on MCC on 26 November 2013 or during the operation on 7 February 2014.”
There was no record of any digital anorectal examination having been performed on MCC at any stage, the appeal judges said. Yet the experts all agreed this should be done after the episiotomy, to test whether the stitching might have compromised the anus. It ought also to have been done before the fistulectomy.
“During the fistulectomy, Ms MCC was awake under a spinal block and testified that only a visual examination was performed. Francis stated that a digital anorectal exam is standard practice, but admitted in cross-examination he remembered only the notes, which did not mention such an exam,” the judges said.
They remarked on “the absence of medical records indicating precisely what was done and not done when” and said this “tended to redound to the detriment of the defendant health practitioners and institutions, in the drawing of inferences”.
The judges said strong evidence suggested anal involvement during the episiotomy was overlooked and unrecorded; necessary examinations and follow-ups were not done; and complaints of severe pain were ignored, leading to a dangerous fistula.
“The lack of proper examination before the fistulectomy resulted in cutting the anal sphincter and subsequent faecal incontinence.”