Khubheka obo K v City of Ekurhuleni Metropolitan Municipality and Another (41153/15) [2018] ZAGPPHC 541 (2 May 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

[REPUBLIC OF SOUTH AFRICA]

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

41153/15

2/5/2018

In the matter between:

J. P. KUBHEKA o b o T S. K

PLAINTIFF

And

CITY OF EKURHULENI METROPOLITAN MUNICIPALITY

1ST DEFENDANT

MEC FOR HEALTH

2ND DEFENDANT

JUDGMENT

MAVUNDLA J;

[1] The plaintiff's R16, 907, 062.50 16 damages claim, as the biological mother, on behalf of her minor child against the second

defendant, was set down for ten days scheduled to commence on the morning of 3 April 2018. Shortly before the matter commenced, counsel for both parties approached me in chambers, to introduce themselves as it is customarily. They advised in chambers of what they said was good news, namely that the matter would no longer proceed for the duration it had been allocated for, because the parties have since reached a settlement. They requested that the draft order they had prepared by agreement be made an order of court.

[2] In a division such as ours, where the bulk of litigation weighs heavily on the few judges of this division, notwit1 standing the presence of numerous acting judges, indeed the news that the parties had settled was a relief in that the court would be no freed from what would have been a lengthy trial. However, although there was nothing wrong with the draft order presented, in my view, it was not in order to simply make the draft an order of court without much ado. With the consent and convenience of the counsel of the respective parties, the matter stood down to allow me to pen a short judgment, raising certain concerns from my part.

[3] The plaintiff's action arises from alleged negligent breach of the legal duty of medical care on the part of:

3.1 the medical and nursing staff at Daveyton Extension Clinic during the period of 6 March 2007 to 10 September 2007, in failing to properly monitor, assess and manage the anti-natal period and progression of the plaintiff's pregnancy and plan delivery of her baby with whom she was pregnant, safely and in accordance with acceptable norms a d standards of good nursing and gynaecological and obstetrical practice;

3.2 the second defendant's Far East Rand Hospital, who attended to the plaintiff and her baby, were negligent or that the plaintiff's baby suffered brain damage as a result of any negligence on the part of the medical doctors and nursing staff who attended to the plaintiff and her baby, Tshianeo, at the second defendant's Far East Rand Hospital.

[4] It is common cause that the plaintiff attended at Daveyton Extension Clinic during the period of 6 March 2007 to 10 September 2007 for antenatal care and management of her pregnancy with her baby son, (T), with whom she was pregnant. On or about 10 September 2007, the plaintiff attended the Phillip Community Health Centre in Gauteng with a history of dizziness. On the same day, 10 September 2010, at approximately 08h 00, she was transferred by ambulance from Phillip Community Health Centre to and admitted at the second defendant's Far East Rand Hospital in Gauteng with a diagnosis of pregnancy-induced hypertension.

[5] On the 11 September 2007 the plaintiff's baby, T, was delivered through a caesarean section. It was alleged that T suffered prolonged partial hypoxic­ ischaemic brain insult and or profound, and global hypoxic-ischaemic brain insult which resulted in severe brain damage, aggravated by postnatal hypoglycaemia as a consequence of which T suffered early onset neonatal encephalopathy of a severe degree and permanent severe brain damage manifesting as spastic quadriplegic cerebral palsy, epilepsy, microcephaly and cortical visual disability.

[6] The summons was served on the respective defendants on the 9 June 2011. The claim against the first and second defendants was on the basis that medical and nursing staff of Daveyton Extension Clinic acted on behalf of the first defendant and the medical and nursing staff of Far East Rand Hospital on behalf of the second defendant. It has since been realised that Daveyton Extension Clinic falls under the control of the second defendant. Consequently the action was withdrawn against the first defendant. The pleadings were accordingly amended to reflect that the claim against the second defendant as the re15ult of the negligence of both the medical and nursing staff of both Daveyton Extension Clinic and Far East Rand Hospital.

[7] The first defendant, prior to the withdrawal of the action against it, had filed a special plea of non-compliance with t e provisions of section 3 and 4 of Act 40 of 2002. This issue was cured by the submission of the plaintiff, through her legal representatives

submitting proof that a written notice was indeed remitted per registered post to the defendants. The special plea was subsequently

withdrawn.

[8] The defendants subsequently brought an application to except to the particulars of claim , complaining that these ere ague and embarrassing. The plaintiff resisted this application. It would seem t at this appf1cat1on to except was withdrawn by the defendants at the door steps of he court, thus causing this matter to be delayed with at least two years, to the prejudice of the minor child.

[9] It is trite that the relationship! between the plaintiff and the defendant's health institutions referred to hereinabove was implicitly contractual; vide Correira v Berwind.[1] The defendant's aforesaid institutions and medical and nursing staff owed the plaintiff and her baby a d ty of care. The medical and nursing staff at both Daveyton Clinic and Far East and Hospital were duty bound, in performing any medical care on the plaintiff and her baby throughout from her admission to delivery of her baby and post-delivery, exercise no more than reasonable general level of skill and diligence possessed an exercised at the time by members of the branch of the profession to which they belonged; vide Castell v De Greef. [2]

[10] The plaintiff being, the one who alleges negligence on the part of the defendant' s medical and nursing staff bore [the onus of proving such negligence,· vide Mobil Oil, Southern Africa (Pty) Ltd v Mechin;[3] S v Kramer and Another;[4] In McIntosh v Premier, KwaZulu-Natal and another Scott JA held, inter alia, that:

"As is apparent from the much-quoted dictum of Holmes JA in Kruger v Coetzee1966 (2) SA 428 (A) at 430E - F, the issue of negligence itself involves a twofold inquiry. The first is: was the harm reasonably foreseeable? The second is: would the diligens paterfamilias take reasonable steps to guard against such occurrence and did the defendant fail to take those steps? The answer to the secon9 inquiry is frequently expressed in terms of a duty. The foreseeability requirement is more often than not assumed and the inquiry is said to be simply whether the defendant had a duty to take one or other step, such as... perform some or other positive act, and if so whether the failure on the part of the defendant to do so amounted to a breach of that duty."

[11] Towards acquitting the onus resting on her to prove negligence on the part of the medical staff that treated her and her baby, the plaintiff obtained medical reports from both concerned. institutions of s and instructed experts to prepare their opinions. In this regard she filed in terms of Rule 36(9)(a) and (b) six experts reports, of Prof Lut Geerts a special gynaecologist arid obstetrician; Prof J Smith a specialist neonatologist; prof J Lotz a specialist radiologist( Prof R Solomons a paediatric neurologist; Dr C Harris a nursing expert and Prof D Viljoen a geneticist.

[12] Prof Geerts opined that:

12.1 The ante-natal care at the Daveyton Extension Clinic was grossly sub-standard as the plaintiff developed a severe complication (chronic hypertension with uncontrolled blood pressure, later developing superimposed preeclampsia with multiple episodes of acute severe hypertension) for which referral to a doctor was strictly indicated on at least five occasions, including the booking visit;

12.2 The management of Ms Kubheka's pregnancy was also grossly sub-standard at the clinic as the high risk nature of the pregnancy was not recognised and the foetal growth was never assessed until 30 weeks, or thereafter;

12.3 The management at the clinic was further negligent in that anaemia was never recognised as a problem and never treated or followed up;

12.4 A patient with the degree of hypertension of Ms Kubheka should have been delivered electively no later than 38 weeks' even if her blood pressure had been successfully controlled (which it was not) and if the foetus remained in a good condition (which was never checked sufficiently in this case);

12.5 The management of Ms Kubheka at the Far East Hospital was grossly sub-standard because her hy9ertension was never managed appropriately and she experienced multiple dangerous blood pressure peaks that could have resulted in haemorrhagic stroke and even death;

12.6 The nurses at the Far East Rand Hospital were negligent by not recording the blood pressure values of Ms Kubheka sufficiently, not

administering Adalat for acute spikes of prescribed, and not informing the doctor about the lack of control;

12.7 The doctor at the Far East Rand Hospital was negligent by not reviewing Ms Kubheka more frequently and by not expediting delivery. His decision to opt for expectant management was entirely inappropriate for the severity of Ms Kubheka's condition;

12.8 The management of Ms Kubheka was also negligent because the foetal condition was not monitored adequately;

12.9 In a high risk labour such as that Ms Kubheka, especially with numerous episode of uncontrolled severe hypertension, there was significant

risk for acute foetal compromise and the foetal condition needed to be monitored much more intensively when during routine labour care, preferable by continuous CTG (cardiochograph). This was not performed or considered;

12.10 Although the CTG printouts were always reported a reactive, none of the available CTG printouts WE1re reactive and several were not reassuring at all. This is a clear demonstration of lack of skill of staff in TG interpretation;

12.11 When finally a diagnosis of foetal distress was made, no intropartum resuscitation was performing to optimise foetaI oxygenation.

[13] Prof Geerts further opined that:

13.1 during the antenatal course placental insufficiency and growth restriction could and should have been diagnosed, by special investigations that that should have been requested given Mrs Kubheka's significant risk factors. If such request had been made, then an earlier elective delivery would have been arranged, at a stage that the foetal condition was still fine;

13.2 with proper antenatal and ante-hypertension treatment and addition of other medication like low dose Aspirin, the medical staff would also have prevented later onset preeclampsia or even improved placentation;

13.3 if foetal conditional had been monitored appropriately during the admission at the hospital and if the CTG’s had been interpreted correctly and continued when not reassuring, with medical review being requested and performed, the foetus would in all likelihood have been born in a good condition after a caesarean section had been performed at a much earlier stage;

13.4 the brain damage which the baby suffered, was caused by the foetal distress that was not recognised during labour and was in all likelihood preventable.

[14] Prof J W Lotz, the neuron-radiologist opined on the MRI scan of the brain of the baby which was performed on 17 October 2012:

14.1 that the MRI study id1ntified global and near complete destruction of supratentorial cerebrum;

14.2 concluded that the presence of discernible deep grey nuclei against the background of complete destruction, would make the probability of a diagnosis of a prolonged partial hypoxic ischaemic injury exceedingly high;

[15] Prof Johan Smith the specialist neonatologist opined that after reviewing all available facts, record and information in his case, came to the conclusion that the outcome of cerebral palsy, visual. disability, epilepsy and accompanying microcephaly which the baby suffered, would probably have been prevented had proper and appropriate antenatal and intrapartum caret been provided to Mrs Kubheka and the baby by the nursing staff at the clinic and by the medical and nursing staff at the hospital.

[16] Dr C Harris, the nursing expert came to the conclusion that:

16 1 the midwifery management of Ms Kubheka's hypertension was sub-standard from the time of her first presentation at the antenatal clinic on 6 March 2011, and for the duration of her pregnancy and sub-standard management of her blood pressure at the clinic, probably contributed towards the baby's very unfortunate outcome;

16.2 the midwifery care of Ms Kubeka at the hospital during the course of her active phase of the first stage of labour, was sub-standard , with particular reference to monitoring her blood ! pressure, monitoring of urine, foetal heart rate monitoring, monitoring of contractions and the progress of labour, and proper completion of partogram.

16.3 the sub-standard manage117ent of Ms Kubheka's s active phase of the first stage of labour at the hospital by the medical staff probably contributed towards the baby's very unfortunate outcome.

[17] Prof Solomons the paediatric neurologist opined in his report that:

17.1 the baby has profound intellectual disability microcephaly, cortical visual impairment and spastic quadriparetic cerebral palsy;

17.2 the pattern of MR imaging is of global and near-total cerebral destruction. The presence of discernible deep grey nuclei against the background of complete destruction would make the probability of a diagnosis of prolonged partial hypoxic ischaemic injury exceedingly high. The damage from severe hypoglycaemia, individual (y or superadded to hypoxic ischaemic injury, would also result in the MTI pattern seen in the baby. The MRI Pattern correlates with the current clinical condition of profound intellectual disability, microcephaly, cortical visual impairment and spastic quadriparetic palsy;

17.3 there is evidence for global and near-total cerebral destruction in the intrapartum period, with placental insufficiency due to negligence management maternal chronic hypertension and preeclampsia as risk factors;

17.4 there is evidence for neonatal hypoglycaemia, which compounds hypoxic ischaemic injury, or severe, may cause a neuro-imaging picture of global near­ total destruction.

[18] Prof d Viljoen the geneticist opined that:

18.1 the baby suffers from profound global delays, microcephaly, epilepsy, spastic quadriplegia and cortical blindness;

18.2 the baby has no evidence of genetic, syndromic or metabolic disorder causing his profound disabilities. T e historic, clinical and

radiological evidence was convincing that his maladies are due to hypoxic ischaemic destruction of his central nervous system during

the intrapartum period.

[19] The second defendant's legal representatives have indicated that the second defendant cannot dispute the r cords of the clinic and the hospital relating to Ms Kubheka's pregnancy, as well as the monitoring, assessment and management of her labour process and

delivery of her baby, and the monitoring, treatment and management of the plaintiff an her baby during and after his birth. They further indicated that they cannot dispute the correctness of the contents of the expert summaries and reports of the Plaintiff’s six expert witnesses, who were reserved to testify in the event it was necessary.

[20] In the matter of McIntosh v Premier, KwaZulu-Nata/ and Another (supra) Scott JA further held that: "The crucial question, therefore, is the reasonableness or otherwise of the respondent's conduct. This is the s1cond leg of the negligence inquiry. Generally speaking, the answer to the inquiry depends on a consideration of all the relevant circumstances and involves a value judgment which is to be made by balancing various competing considerations, including such factors as the degree or extent of the risk created by the actor's conduct, the gravity of possible consequences and the burden of eliminating the risk of harm. See Cape Metropolitan Council v Graham 200)1(1) SA 1197 (SCA) para 7."

[21] In the matter of Michael and Another v Linksfiled Park Clinic (Pty) Ltd and Another[5] it was held that: ''The assessment of medical risks and benefits is a matter of clinical judgment which the court would not normally be able to make without expert evidence and it would be wrong to decide a case by simple reference where there are conflicting views on either side, both capable of logical support." In casu, the defendant did not place before the court its own expert reports to controvert the conclusions reached by the plaintiff's experts and consequently deprived the court an opportunity to make its informed value Judgment. In the absence of controverting evidence, it must be accepted that the medical and nursing staff of he second defendant were negligent to the extent described by the plaintiff's experts. This must also be seen in the light of the defendant's acceding to the d ft order. Counsel who appeared for the defendant in the circumstances of the case, could do no better than to wisely concede and accede to the draft order being made an order of the court. In the draft order 100% liability on the part of the second defendant was conceded.

[22] The amount claimed in casu is not insignificant, but substantial , sixteen million rand plus. In a way it is the taxpayer ho is burdened with the payment of these amounts, in the event the Court were to ward same or any other amount. The summons was served on the respective defendants on the 9 June 2011. The plaintiff on three occasions served the defendants with a notice of bar. In a matter of this magnitude, an attorney handling it on behalf of the defendant, cannot afford to slip on the time frames prescribed by the rules for filing a plea. For a matter of this magnitude, common sense dictates that from the very moment the summons was brought to the second defendant and its attorneys, whoever was assigned to deal with the matter would have to prioritize it and 7andle it with due diligence. The second defendant is legally represented by the State attorney's office. Common sense dictates that a most senior attorney would have beer tasked to handle this matter or supervise any junior person assisting him. Decisions, after thorough investigation of the merits and demerits of the claim ought to be taken without any delay. Was that done?

[23] The child was delivered by caesarean section on the 11 September 2007. The plaintiff was discharged on 17 September 2007.The plaintiff on the 6 June 2008 at one of the clinics stated that she noticed at 6 weeks that the child was normal. The child was admitted at 3 years old on the 16 October 2010. The child was admitted at Far East Rand Hospital on the 2 February 2011, as well as from 12 February 2011 to 16 February 2011 with a history of uncontrolled epilepsy. Did the defendant's attorneys investigate since when the epilepsy developed and what its cause was? Did the second defendant's attorney obtain second opinion from independent experts to test the correctness of the opinions of the plaintiff's experts, regard being had to the plaintiff's observation of normality of the child at 6 weeks?

[23] The professional obligations of an attorney to his client are that he must evince the highest professional integrity, truthfulness and loyalty to his clients, uberrimae fides. He must place his own personal interest secondary to that of his clients. He must diligently, efficiently, honestly and accurately conduct his professional obligations to his clients to the best of his ability at all times and accurately and within reasonable time report to his client, vide Law Society v Mathews.[6]

[24] It would seem that sometime in 2017, the second defendant was asked by the plaintiff whether it is prepared to concede liability, but responded by saying "not at that stage". The quest ion that arises is: Why it took the second defendant more than six years, to concede on liability? Did the second defendant obtain its own independent experts' reports to assist it in making an informed decision to or not to resist this matter? In my view, where a popper investigation was done by the defendant's legal representative , and they formulated a view that there was no defence, then liability should have been conceded much earlier to avert unnecessary escalation of legal costs. I subsequently called upon the legal representatives of the second defendant to prepare a detailed memorandum to be submitted to its client, the Judge President of this Division and this Court, explaining in detail the steps taken to investigate and consult with the medical staff concerned, preparation of memorandum and or opinion to guide the second defendant, explaining also why three notices of bar were served. In my view, in matters of this magnitude, prompt and informed decisions premised on a thorough investigation should be taken to ensure that necessary information is placed before the client concerned to make an informed decision to protect or compromise its interest, if need be. Short of that the handling of the matter borders on dereliction of duty on the par: of the attorney towards his client.

[25] If there was any gross negligent on the part of the medical and nursing staff involved in this case, a decision to have/ disciplinary actions taken against them should, in my view, be considered. This wou1l ensure that in future, such instances of negligence as alluded to in the expert reports/ of the plaintiff do not repeat themselves.

[26] That much said, the draft order marked X is made an order of Court.

N .M. MAVUNDLA

JUDGE OF THE COURT

DATE OF HEARING

: 23/4/2018

DATE OF JUDGEMENT

: 2/5/2018

PLAINTIFF'S ADV

: ADV STRoH SC with Adv LONDON

INSTRUCTED BY

: OLOF JOUBERT ATTORNEYS

SECOND DEFENDANT

: ADV. L. MAHASHA

ADV SECOND DEFENDANTS' ATT : STATE ATTORNEY PRETORIA

[1] 1986 4 SA 60.

[2] 1993 (3) SA 501 (CPD) at 5090 -H.

[3] 1965 (2) SA 706 (AD) at 711E-G.

[4] 1987 (1) SA 887 (WLD) at 894a-B.

[5] 2001 (3) SA 1188 (SCA)

[6] 1989 (4) SA 389 at 395F-396F