Jurisprudência e Ementário
| Autor | Revista de Direito Sanitário |
| Páginas | 229-291 |
Jurisprudência & Ementário
R. Dir. sanit., São Paulo v.19 n.2, p. 229-291, jul./out. 2018
DOI: http://dx.doi.org/10.11606/issn.2316-9044.v19i2p229-291
ÁFRICA DO SUL
DIREITO MÉDICO. Delict – medical negligence – child suering cerebral palsy
as a result of acute profound hypoxic ischaemic event during labour – inadequate
monitoring creating situation of risk to the foetus – hypoxia developing thereaer
and catastrophic event ensued – delictual liability established on the facts –
falsication of medical records strongly deprecated. ORDER. On appeal from:
Eastern Cape Division of the High Court, Mthatha (Nhlangulela DJP, sitting as court
of rst instance): e appeal is dismissed with costs. JUDGMENT. Majiedt JA (Tshiqi
JA concurring): [1] e appellant, Ms Apiwe Magqeya, claimed delictual damages
in the High Court, Mthatha, on behalf of her minor child, Kwanga Magqeya
(Kwanga) against the respondent, the Member of the Executive Council for Health,
Eastern Cape Province (the MEC). e claim emanated from the child suering
cerebral palsy as a consequence of a hypoxic ischaemic event during the birth process.
Nhlangulela DJP who, by agreement between the parties, was called upon to decide
only the question of liability, dismissed the claim. e learned Judge found that Ms
Magqeya did not succeed in proving negligence and causation. is appeal is with
his leave. e factual matrix: [2] e facts set out below were either common cause
or not seriously disputed. It became common cause that the hospital records relating
to Ms Magqeya’s treatment were altered in material respects. More will be said about
that later. Ms Magqeya was admitted to the All Saints hospital at Engcobo on 4 May
2010 at around 12h40, when she presented with labour pains. All Saints is a level
one state hospital. For present purposes that classication entails that the hospital
has properly trained and qualied sta (doctors and nurses), medical equipment
and a theatre to provide proper obstetric care. Ms Magqeya was 17 years old at that
time and it was her rst pregnancy. She attended antenatal care at her local clinic
from the 32nd week of her pregnancy. e antenatal care was uneventful. [3] At
admission Ms Magqeya was 40 weeks pregnant, ie full term. Good foetal movements
were reported and vital observations were normal. She appeared generally in good
health, although her blood pressure rate was recorded as marginally high at 141/71.
e foetal heart rate (FHR) was recorded to be 138/min which is within the normal
range of 110 – 160 per minute. e records reect that Ms Magqeya refused to
undergo a vaginal examination. No assessment or plan for further management
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R. Dir. sanit., São Paulo v.19 n.2, p. 229-291, jul./out. 2018
appear in the records. [4] e next entry in the medical records is at 23h45, some
12 hours and 45 minutes later. Mild contractions were noted and a FHR of 135/min
was recorded. Another inordinate time lapse ensued before the next entry at 08h20
on the following day, 5 May 2010. The entries reflect that Ms Magqeya was
uncooperative, experienced weakness of the knees and refused to get onto the bed.
e Partogram, a document which is meant to chart the progress of labour, was said
to have been started at this point by the attending nurse. It charted the foetal head
as 4/5 above the pelvic brim and the FHR was 140/min. e following contractions
were noted: two moderate contractions in 10 minutes at 08h20 and precisely the
same contractions at 08h50 and at 09h20. [5] According to the records the foetal
head was showing at 09h50 when Ms Magqeya pushed. e Partogram showed that
the foetal head was at 2/5 at this time and there were three moderate contractions.
e FHR was recorded as normal at intervals of half an hour on four occasions
between 08h20 and the time of delivery. [6] Ms Magqeya delivered her baby at 10h00
by face to pubis delivery. is is a risky manner of delivery, since it is usually delayed
because of the dierence in angle and size of the baby’s head, compared to a normal
delivery. A face to pubis delivery oen requires assistance, such as ventouse (vacuum
extraction) or by forceps. e Agpar score, which is a basic, general assessment of
a newborn baby’s general health, was assessed to be ve at one minute and seven at
ve minutes aer birth. ese scores were later overwritten to eight and eight
respectively. Agpar scores are out of 10, with a score of 10 indicating optimal health
and well-being. [7] e medical records noted no visible abnormalities with the
placenta, umbilical cord or membranes. It also recorded an absence of meconium
staining of the amniotic uid (which is usually indicative of a healthy newly born
baby). Ms Magqeya sustained a severe third degree perineal tear in the delivery
process. e tear was sutured in surgery some seven hours later. [8] It was common
cause that Kwanga suered an acute profound hypoxic event during labour.1 e
experts were agreed that all indications point to a global hypoxic ischaemic injury
of a catastrophic nature which resulted in spastic dystonic quadriplegic cerebral
palsy.2 A hypoxic ischaemic event can be described as lack of oxygen and inadequate
perfusion of oxygen through the blood to the brain which causes damage to the
brain. Despite initial vigorous contestation on behalf of the MEC, it became common
cause by the end of the trial that the cerebral palsy was caused by an acute, profound
hypoxic ischaemic injury (the injury). e consensus was brought about by the
conclusions contained in the admitted expert report of Professor Van Toorn, a
paediatric neurologist. His conclusions were supported by the ndings of Professor
Savvas Andronikou, a radiologist who performed a magnetic resonance imaging
(MRI) scan on Kangwa. His radiology report was admitted as evidence by agreement.
In that report, Professor Andronikou concluded as follows: ‘Features are those of a
chronic evolution of a global insult to the brain due to hypoxic ischaemic injury, of
the acute profound type, most likely occurring at term. Professor Van Toorn
concurred with the radiology report that ‘Kwanga’s MRI changes are consistent with
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R. Dir. sanit., São Paulo v.19 n.2, p. 229-291, jul./out. 2018
a global hypoxic ischaemic injury, of a catastrophic nature, at or around term’. [9]
A brief explanation of the cause and development of hypoxic ischaemia which injures
the brain is necessary. e foetus is completely dependent upon the mother for
nutrition and oxygen, transmitted through the umbilical cord from the mother’s
placenta. During the onset of labour the contractions of the uterus (commonly
known as ‘labour pains’) aect the placenta. As the contractions increase in strength,
the blood vessels in the placenta become constricted and the blood supply to the
foetus via the umbilical cord contains increasing levels of carbon dioxide and less
oxygen. Monitoring of the foetal heart rate occurs by means of a cardiotocograph
(CTG), which also measures the uterine contractions. CTG readings will convey to
nursing sta monitoring the patient three important facets of heart normality: (a)
the average (baseline) heart rate which, as stated, should be between 110 – 160 beats
per minute; (b) the baseline variability of the heartbeat which normally should be
between 5 – 10 beats per minute; and (c) accelerations in the heartbeat. Early and
late decelerations of the heartbeat are related to contractions of the uterus. Late
decelerations occur aer the commencement of uterine contractions and recovers
some time aer the contractions had ceased. A foetal heart rate below 90 bpm and
a series of late decelerations of the heartbeat are cause for concern, as they may
suggest that the foetus is in distress. ey are referred to in medical parlance as
‘non-reassuring foetal heart rate’. Depending on the severity of the foetal distress, it
may be necessary to expedite the delivery by performing an urgent caesarean section.
Absent timeous intervention, the increasing levels of reduced oxygen supply to the
foetus (hypoxia) will result in brain damage. [10] e central issues at the trial, as
in this court, were the reliability of the records, whether the hospital sta was
negligent in their treatment of Ms Magqeya and, if so, whether their negligence
caused the injury and resultant cerebral palsy. Nh langulela DJP found in favour of
the MEC on all these issues. He found that the hospital records were admitted by
consent. e learned Judge held further that, absent forewarning of a non-reassuring
foetal condition ex facie the medical records, the hospital sta were not negligent
in their treatment of Ms Magqeya. ere had not been suboptimal monitoring of
the patient which amounted to negligence. On the applicable legal principles, ‘the
hypothetical non-negligent monitoring would not have produced a better labour
outcome’, thus factual causation had not been proved. Before deliberating on the
cogency of these ndings, it is necessary to consider briey the evidence. A key
factor in that consideration is the eect of the altered records. At the end of the trial
there was consensus on virtually all aspects of the expert evidence. e essential
dispute between the parties related to the conclusions to be drawn from the evidence.
e evidence: [11] Ms Magqeya did not testify, nor did any of the hospital sta. Two
obstetric and gynaecology experts, Professor Smith of Tygerberg Children’s Hospital
and Stellenbosch University, and Dr Hulley, a practising obstetrician and
gynaecologist of more than 30 years’ experience, testied on behalf of Ms Magqeya.
As stated, Professor Van Toorn’s expert report was admitted into evidence by
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