A mother’s attempt to claim damages from the Eastern Cape Department of Health for her child’s severe brain damage sustained at birth has been dismissed by the Supreme Court of Appeal.
The court ruled on 4 August that whilst hospital staff provided substandard care during the delivery at Dora Nginza Provincial Hospital, the department’s negligence was not proven to have caused the child’s cerebral palsy.
Missing records and poor care
The mother, Ms NK, gave birth to her child, UK, who developed cerebral palsy due to severe brain injury around the time of birth. She claimed hospital staff managed her labour poorly, with prolonged induction, repeated examinations, inadequate monitoring, and failed vacuum extraction attempts.
A significant portion of her medical records disappeared after the birth.
The court accepted that the hospital’s care fell below acceptable standards. However, the central question was whether this poor care directly caused the child’s injury.
Inflammation before labour began
The health department argued the brain damage resulted from severe acute chorioamnionitis, an inflammation of the foetal membranes that developed before labour started and showed no outward symptoms.
Justice Faye Kathree-Setiloane, writing for the majority with Justices Phillip Coppin and acting judge Christie Basson agreeing, accepted medical evidence showing the inflammation had impaired blood flow and oxygen delivery to the baby before labour began.
The majority found that whilst the medical staff delivered substandard care, Ms NK failed to prove on a balance of probabilities that this negligence caused her child’s brain injury.
Dissenting judges disagreed
Two judges disagreed with the decision. Justice Bessie Mocumie, with acting justice Mtholisi Chili concurring, argued the appeal should have succeeded.
The minority judgment highlighted Ms NK’s unchallenged testimony about her treatment, the department’s failure to call any attending medical staff to testify, and the missing hospital records.
Justice Mocumie concluded the prolonged labour, invasive procedures and inadequate monitoring likely caused or contributed to the child’s condition, and an adverse inference should have been drawn against the department for the missing evidence.
The appeal was dismissed with costs, including those of two counsel. The majority decision stands as the final order.
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