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South Africa Judgment

Kwazulu-Natal High Court, Durban

K v Member of the Executive Council for Health for the Province of KZN (D7918/2015) [2022] ZAKZDHC 8 (9 February 2022)

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01

Holding and result

The court found that the plaintiff failed to prove, on a balance of probabilities, that the hospital staff's conduct caused the hypoxic ischaemic encephalopathy suffered by the child. The direct evidence established that labour commenced on 19 July 2011 at 04h30, not earlier as alleged by the plaintiff's expert. The latent phase was not prolonged, and the monitoring of the foetus was adequate according to the CTG traces and partogram. Expert evidence for the plaintiff was based on incorrect facts and speculation, while the defendant's experts provided logical and authoritative opinions. There was no evidence of a sentinel event or prolonged hypoxia, and the vacuum extraction was the most expedient intervention. The plaintiff's claim that a caesarean section would have prevented the injury was not supported by her own expert. The court concluded that causative negligence was not established and dismissed the claim.

Court disposition

Plaintiff's claim dismissed; no order as to costs.

Orders

  • The plaintiff’s claim is dismissed.
  • There is no order as to costs.

02

Material facts

Parties

K[....]

Plaintiff Counsel: VI Gajoo SC

Member of the Executive Council for Health for the Province of KZN

Defendant Counsel: V Naidu

Amounts and remedies

  • Claimed Damages: ZAR 14,010,000

03

Procedural history

  1. Posture

    Civil Trial / Merits Separated From Quantum; Trial Proceeded on Liability Only

04

Questions and positions

Legal issues

Party arguments

Applicant
The plaintiff alleged that hospital staff failed to monitor and record labour progress, react to complications, expedite delivery, obtain qualified assistance, and adequately plot the partogram. She claimed these failures led to her child's hypoxic ischaemic encephalopathy and permanent impairment. Expert evidence was presented to support claims of substandard care, prolonged labour, and inadequate monitoring, relying on the Maternity Guidelines and medical records.
Respondent
The defendant denied negligence, arguing that the plaintiff's labour was not prolonged and that monitoring was adequate. Expert testimony indicated no evidence of foetal distress during labour, and that the injury likely occurred late and was unavoidable. The defendant contended that the vacuum extraction was appropriate and that a caesarean section would not have prevented the injury. The CTG traces and partogram supported proper monitoring, and causation was not established.

05

Court’s reasoning

  1. 01

    Lee v Minister for Correctional Services 2013 (2) SA 144 (CC)

    A plaintiff must prove on a balance of probabilities that the defendant's conduct caused the harm complained of; mere negligence without causal connection is insufficient.

  2. 02

    The Member of the Executive Council, Department of Health, North West v NAM obo TN [2021] ZASCA 105

    The general rule is that he who asserts must prove; failure to adhere to the general level of skill and diligence constitutes negligence, but causation must also be established.

  3. 03

    HAL obo MML v MEC for Health, Free State [2021] ZASCA 149

    The maxim res ipsa loquitur should rarely apply in medical negligence cases where the cause of injury is not established and expert views are speculative.

  4. 04

    Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA)

    Opinion evidence must be founded on logical reasoning and a defensible conclusion; courts are not bound by expert opinion unless it is cogent and based on proven facts.

  5. 05

    The Member of the Executive Council for Health, Eastern Cape v DL obo AL [2021] ZASCA 68

    Factual causation requires proof that the defendant's act or omission caused or materially contributed to the harm suffered; wrongful conduct alone is insufficient.

  6. 06

    Miller v Minister of Pensions [1947] 2 All ER 372 (KB)

    Where the evidence is evenly balanced, the plaintiff cannot succeed; the burden of proof is discharged only if it is more probable than not that the defendant caused the harm.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the plaintiff failed to prove, on a balance of probabilities, that the hospital staff's conduct caused the hypoxic ischaemic encephalopathy suffered by the child. The direct evidence established that labour commenced on 19 July 2011 at 04h30, not earlier as alleged by the plaintiff's expert. The latent phase was not prolonged, and the monitoring of the foetus was adequate according to the CTG traces and partogram. Expert evidence for the plaintiff was based on incorrect facts and speculation, while the defendant's experts provided logical and authoritative opinions. There was no evidence of a sentinel event or prolonged hypoxia, and the vacuum extraction was the most expedient intervention. The plaintiff's claim that a caesarean section would have prevented the injury was not supported by her own expert. The court concluded that causative negligence was not established and dismissed the claim.

Obiter and limits

  • The court expressed concern about the insensitive treatment of the plaintiff by hospital staff after the birth, noting that she was told to fetch her own file despite having undergone a difficult delivery.
  • The court recommended that changes to the partogram should be initialled for accountability and that greater diligence should be exercised in record-keeping and adherence to maternity guidelines.
  • The court noted that while the plaintiff suffered a tragic outcome, compensation cannot be awarded without proof of causative negligence, as imposing liability without such proof would be a disservice to the medical profession and the community.

Court disposition

Plaintiff's claim dismissed; no order as to costs.

  • The plaintiff’s claim is dismissed.
  • There is no order as to costs.

Source and reliance status

Kwazulu-Natal High Court, Durban

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Lee v Minister for Correctional Services 2013 (2) SA 144 (CC)

Case cited

The Member of the Executive Council, Department of Health, North West v NAM obo TN [2021] ZASCA 105

Case cited

HAL obo MML v MEC for Health, Free State [2021] ZASCA 149

Case cited

Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA)

Case cited

The Member of the Executive Council for Health, Eastern Cape v DL obo AL [2021] ZASCA 68

Case cited

Miller v Minister of Pensions [1947] 2 All ER 372 (KB)

Case cited

Van Wyk v Lewis 1924 AD 438

Case cited

M v MEC for Health, Eastern Cape [2018] ZASCA 141

Case cited

BEE v Road Accident Fund 2018 (4) SA 366 (SCA)

Case cited

Bolitho v City and Hackney Health Authority [1998] AC 232 (HL)

Case cited

Pricewaterhousecoopers Inc v National Potato Co-Operative Ltd 2015 JDR 0371 (SCA)

Case cited

AM & another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA)

Case cited

AN obo EN v Member of Executive Council for Health, Eastern Cape [2019] 4 All SA 1 (SCA)

Case cited

Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241 (SCA)

Case cited

Stock v Stock 1981 (3) SA 1280 (A)

Case cited

Ngobese v MEC for Health, KZN [2019] JOL 43767 (KZP)

Case cited

Davies v MEC for Health for the Province of KwaZulu-Natal 2019 (JDR) 0500 (KZP)

Case cited

MEC for Health for the Province of KwaZulu-Natal v Davies 2021 JDR 1257 (KZP)

Case cited

Khuzwayo obo SZ Khuzwayo v MEC for Health, KwaZulu-Natal (unreported case no 13820/14)

Case cited

Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC)

Case cited

Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA)

Case cited

Savoi and others v National Director of Public Prosecutions and another 2014 (1) SACR 545 (CC)

Case cited

Giesecke and Devrient South Africa (Pty) Ltd v Tsogo Sun Holdings (Pty) Ltd and another (2010) ZAGPJHC 41

Case cited

S v Ndhlovu and others 2002 (2) SACR 325 (SCA)

Case cited

Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)

Case cited

Roe v Ministry of Health [1954] 2 All ER 131 (CA)

Case cited

State Liability Act 20 of 1957

Legislation

Legislation referenced in the available case record.

Law of Evidence Amendment Act 45 of 1988

Legislation

Legislation referenced in the available case record.

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