NN v. The Member of the Executive Council for Health

Case No. 2571/13
Download Judgment: English

The plaintiff filed a suit in her personal capacity and as a guardian of her minor child, Z alleging medical negligence. She alleged that the hospital failed to determine the need for a Caesarean Section and due to prolonged labour and foetal distress, Z suffered from cerebral damage at birth.

The Defendant pleaded that under the Prescripton Act, the plaintiff is bound to bring an action within three years and it had been more than six years and therefore her action is liable to be dismissed. Further, the defendant stated that as labour progressed without any alarming signals and the fetal heart rate was being monitored, there was no negligence on behalf of the hospital.

The Court held the defendant liable for medical negligence and ordered the payment of damages and costs. The Court first dismissed the plea of Prescription as it was apparent from the Plaintiff’s evidence that she became aware of the cause of action in 2013.

Further, the Court stated that no health records were kept or made available and the defendant could not justify why the records were not available. The National Health Act of 2003 requires the person in charge of a hospital to maintain patient records and further prevent unauthorised access to such records. Failing to do so is a punishable offence. The experts, therefore relying solely on probability stated that the hospital was negligent as they seem to have failed in following the Guidelines for Maternal Care of 2007. The Court also noted that during the antenatal examination of the plaintiff, there was no physical assessment done. It further stated that no evidence was adduced on behalf of the defendant that they exercised their duty of care.

In this case there were no health records kept and made available to experts. The absence of these records made it impossible for the experts to have recourse to them in their investigation of the plaintiff’s case, resulting in them relying solely on probabilities and assumptions in their finding of negligence of the hospital personnel. There was no explanation proffered by the defendant for the absence of the health records of the plaintiff and the child.” (Para 18)

The evidence shows that according to the two antenatal visits the plaintiff had the maternal and foetal conditions were normal and satisfactory but there was no physical assessment, pelvic assessment and scan done on her. It is common cause that the sequelae of foetal distress was cerebral damage at the birth of the child. The foetal distress developed at the second stage of labour while the defendants' employees had a duty to ensure that it does not develop. They owe the court an explanation on a balance of probability as to what caused the foetal distress. There are no records of the plaintiff' s labour at Mthatha General Hospital to indicate what must have caused foetal distress and what steps were taken to prevent it from occurring . The persons who should know what caused it and who could and should have prevented it from occurring are those who were assigned the duty to manage the labour to the plaintiff.” (Para 22)

“…The duty of care arises from the National Health Act and the universal guidelines for Maternity Care in South Africa 2007 in terms whereof the maternity staff have to manage and monitor the labour of patients admitted in a hospital for labour, to record what they have done and keep the records relating to each patient. The defendants' employees failed to adhere to these guidelines and to the provisions of the Act.” (Para 23)