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 HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 1897/2013

In the matter between:-

M[…] M[…] obo G[…] M[…] Plaintiff

And

MEMBER OF THE EXECUTIVE COUNCIL FOR

DEPARTMENT OF HEALTH, NORTH WEST PROVINCE Defendant

_______________________________________________________________________

JUDGMENT

________________________________________________________________________

GUTTA J.

A. INTRODUCTION

[1] M[…] M[…] (plaintiff) instituted an action in her personal and representative

capacity as mother and natural guardian of her son G[…] M[…] (G[…]) against the

Member of the Executive Council (MEC) for Health, North West

Province(defendant) for breach of an agreement alternatively a duty of care to

examine, treat and care for plaintiff and G[…] and to provide gynaecological and

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

http://www.saflii.org/content/terms-use

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obstetric services with skill, diligence, competence and care reasonably expected of

doctors and nursing staff.

[2] Plaintiff alleged inter alia that:

2.1 defendant’s staff at the Moses Kotane Hospital (MKH):

2.1.1 failed to diagnose abruptio placentae timeously;

2.1.2 failed to call a doctor when they diagnosed abruptio placentae in the

early hours of 16 October 2010;

2.1.3 failed to monitor the condition of plaintiff and the foetus;

2.1.4 failed to do an emergency caesarean section after diagnosing an

abruptio placentae;

2.2 defendant’s staff at the MKH and the Job Shimankana Tabane Hospital

(JSTH), previously Paul Kruger Hospital:

2.2.1 failed to diagnose a foetal heartbeat;

2.2.2 made an incorrect diagnosis of abruptio placentae with intra-uterine

death and allowed plaintiff to deliver vaginally.

B. COMMON CAUSE

[3] It is common cause that:

(i) At all relevant times, medical staff involved in the treatment of plaintiff at the

MKH and the JSTH were employed by defendant and were acting within the

course and scope of their employment;

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(ii) Plaintiff attended the Mogwase Health Centre (the clinic) on 7 October 2010

when she was 38 to 39 weeks pregnant. The clinic referred her to the MKH

because of hypertension;

(iii) At the MKH, she was sent back to the midwife unit and was put on

antihypertensive treatment;

(iv) On 13 October 2010, the clinic again referred her to the MKH and she was

admitted;

(v) On 14 October 2010 at 10:00, plaintiff was induced with cytotec solution that

she took seven times every two hours;

(vi) The last cytotec solution was given to plaintiff at 22:00 on 15 October 2010;

(vii) Plaintiff was not monitored from 22:00 on 15 October 2010 until 3:00 on 16

October 2010;

(viii) On 16 October at 3:30 she was seen by a nurse who recorded early signs of

labour. The foetal heart rate was 148;

(ix) At 4:00 on 16 October 2010, the doctor was called. Plaintiff had lost

approximately 1liter of blood;

(x) Plaintiff suffered an abruptio placentae;

(xi) No foetal heart was seen at the MKH. The presence of a small retroplacental

clot was observed;

(xii) At around 8:00, she was transferred to the JSTH hospital;

(xiii) An ultra sound was done at the JSTH and no heartbeat could be detected;

(xiv) Her membranes were ruptured and at 11:10 she was fully dilated and

delivered vaginally at 11:20 on 16 October 2010 and G[…] was born;

(xv) The recorded Apgar scores was 6 at one minute and 9/10 at five minutes;

and

(xvi) Cerebral Palsy (CP) with microcephaly was diagnosed.

C. ISSUES IN DISPUTE

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[4] What is in dispute is whether the medical staff at the MKH and the JSTH were

negligent and whether such negligence caused G[…]’s CP.

D. PLAINTIFF’S EVIDENCE

[5] The first witness for plaintiff was Professor Stefanus Cronje (Prof Cronje), an

obstetrician and gynaecologist. He obtained a MMED degree from Stellenbosch

and the fellowship of obstetrics and gynaecology. He obtained a doctorate from the

College of Medicine. From 1985 to 2011, he was head of Obstetrics and

Gynaecology at the University of the Free State. Since 2012 he has only been

practicing gynaecology. He published 131 articles nationally and internationally and

is the author of four text books. In 2017 he received a lifetime achievement award

from South African Society of Obstetrics and Gynaecology.

[6] He said, Plaintiff was 32 years old and pregnant with her second child. She was

significantly overweight and being overweight brings complications. She had a body

mass index of 39. More than 35 is classified as morbid obesity. She suffered from

mild hypertension which is typical of a patient who is obese. At her last stage of

pregnancy she developed mild to moderate hypertension. Hypertension in

pregnancy is 140/90 or higher. On 7 October 2010, her blood pressure was 140/90.

On 12 October, her pressure was 168/76 and she had protein in her urine. On 13

October her pressure was 138/80. They started induction on 14 October with a drug

called cytotec which is used to induce labour and to prevent the abruptio placenta.

He said, the indication for induction was correct as the longer you wait the higher

the risk.

[7] He said when a patient is induced she is at a high risk level as you can

overstimulate the uterus and if you overstimulate then there is a higher risk of foetal

distress. He explained that when the uterus contracts the muscle contracts and it

compresses the mother’s blood vessels, so less oxygen means less blood will reach

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the placenta and less oxygen to the baby. Also with overstimulation, the uterus can

also rupture leading to the death of the baby and the mother. Prof Cronje said

plaintiff was high risk and should have been delivered at a higher level hospital.

There were three factors that put plaintiff at high risk, namely:

a) She was overweight;

b) Hypertension and

c) Induction.

[8] At 22:00 on 15 October, plaintiff had a show. This is when the cervix opens up and

the muscles plug comes out. She was then in true labour as she had:

a) Enforcement of the cervix.

b) A show.

c) Spontaneous rupture.

d) Painful contradictions.

He differed with Prof Adam who said at 3:30 she had mild contractions with a

dilation of tip of finger. He said definition of labour does not have anything to do with

dilation. It is effacement, that is the thickness of the cervix. He said there was

abnormal bleeding due to the abruptio, it was antepartum haemorrhage and not a

show.

[9] Plaintiff needed the following meticulous monitoring:

a) the foetal heart rate every 20 minutes;

b) Plaintiff’s blood pressure hourly;

c) Measure the number of contractions within 10 minutes and duration of the

contractions;

d) take temperature on an hourly basis;

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e) every two to four hours the urine output and fluid intake must be monitored.

[10] On 16 October at 1:00, plaintiff experienced acute pain. This was the beginning of

abruptio placentae which is when the placenta which is attached inside the womb

and attached to the baby by the umbilical cord becomes separated. As the placenta

separates the amount of oxygen from the mother to the baby decreases and there

is bleeding and the bleeding caused a clot between the placenta and uterus. If not

separated, the clot will be small. The clot can remain in the uterus with no bleeding.

This is a concealed abruptio and there is no bleeding through the vagina. In most

cases there is bleeding. This is an anti-partem haemorrhage and an abruptio

placentae is one of the main causes of anti-partem haemorrhage. Prof Cronje

explained that with the abruptio placentae if –

a) the separation is 10% - the baby survives.

b) the separation is 20% - the foetal heart will start being abnormal.

c) the separation is 30% - the foetus will show abnormalities in the foetal

heart.

d) the separation is 40% or more – there is foetal distress which means that

the baby suffers from acute deficiency of oxygen.

[11] Every person in obstetrics is made aware of the symptoms and if they suspect an

abruptio placentae and if there is pain they must determine the heart rate before,

during and after contractions. He said from the records, there is no evidence of any

monitoring between 12:00, 1:00 and 3:00. This is very serious as plaintiff was a high

risk patient. She was overweight and at risk for abruptio. The fact that she was not

monitored for 3 hours is negligence. The first inscription of foetal heart of 148 was

at 3:30. A vaginal examination was also done and plaintiff was ½ to 1cm dilated. At

this stage although the cervix was slightly dilated, plaintiff was in true labour. At

4:30, plaintiff had the abruptio. Her blood pressure was 83/54 and she had 1litre of

blood loss. They did an ultra sound and found no foetal heart rate. It is extremely

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unusual to miss the heart beat on an ultra sound. In his practice of over 40 years,

he has never seen a case where the heartbeat was missed. If the ultra sound is

done properly and foetal heart is present and you suspect abruptio placenta, the

baby must be delivered within 20 – 30 minutes by emergency caesarean section. A

hospital that is not equipped for caesarean section should not induce and is grossly

negligent if it induces. Plaintiff should have been referred to a bigger hospital

before the induction.

[12] The fact that the foetal heart rate was not diagnosed at 4:30 had huge implications

because an emergency caesarean was necessary. The baby had to be delivered at

5:00. If the baby was delivered, the possibilities are that G[…] would be normal

without brain damage because the time period exposed to low oxygen was shorter

and the baby would have coped. At 7:00, plaintiff was losing blood through the

vagina. A vaginal examination was done. A transfer was arranged due to PV

bleeding. She felt foetal movement because the baby was still alive. Plaintiff

delivered after 11:00, that is, seven hours after the diagnosis of abruptio. This was

too long and many complications could have occurred.

[13] The implications in the delay from 4:00 to 7:00 is that:

13.1 The placenta can separate more and the baby can die;

13.2 Plaintiff’s blood does not clot anymore and she can bleed from any orifice in

the body, for example the nose and anus.

13.3 Due to the massive amount of blood loss, plaintiff can develop organ failure.

13.4 Both mother and baby are at risk. To let the abruptio continue for so long is

dangerous for baby and for mother and is substandard obstetrical practice.

[14] In his report Prof Cronje said “since the baby was not dead and cerebral palsy was

diagnosed later on. It is clear that the baby was exposed to insufficient oxygen in

the uterus. In retrospect the abruptio was not severe”. He explained that the

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abruptio took place and the placenta started to separate but it did not separate

completely, there was still part of the placenta allocated to the uterine wall through

which oxygen was transferred to the baby and that kept the baby alive. But the

oxygen was not enough to ensure normal organ activity within the baby and normal

brain function. As the oxygen was insufficient, that caused certain cells in the brain

to die and the baby developed brain damage. The hospital records state that there

was a small retroplacental clot. If it was a large clot, then it is unlikely that G[…]

would be alive at the time of birth.

[15] The Apgar score was 6/10 and 9/10. He said the Apgar score is an inaccurate

determination or description of G[…]’s condition at birth. It is well proven in literature

that it is not very accurate. With respiration, muscle tone, responsiveness to

stimulation and colour, G[…] scored 1 point at birth. If it is normal, you assign 2

points and if it is abnormal, 1 point, if absent 0. For heart rate, G[…] scored 2

points. After five minutes G[…] scored 2 points. But it was overwritten. He said,

Apgar score was not grossly abnormal but the first test was on the low side. He said

an abruptio over a period of seven hours with a baby that is alive is unusual as most

babies would have been dead by this time. It is very dangerous to let an abruptio be

present for seven hours. This is also negligent behaviour by the staff. The general

policy is that if you think there is an abruptio or when you make the diagnosis you

do an emergency caesarean section. This is a very important principle or rule in

obstetrics.

[16] Under cross examination, he confirmed that since 2012 to date he has a limited

private practice doing mostly urogynaecology. He prepared his report in 2013 and

pursuant thereto he received new documents which he included in the minutes

which deals with the diagnosis of abruptio placenta. When he compiled his report

he had the hospital records and plaintiff’s report. He did not consult with plaintiff. He

said that morbid obesity is associated with hypertension and an abruptio placenta.

Obesity also makes certain diagnosis more difficult to detect for example, the

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detection of the foetal heartbeat. In his report he states that, “the patient visited the

Mogwase Health Center on 7/10 where her pressure was 140/90 which is mild

hypertension and that this was indication for induction with the intention of

preventing abruptio because she was term, had hypertension and was overweight.

She was referred to Moses Kotane hospital and they sent her back to the midwife

unit. This was substandard treatment”. He said even if plaintiff’s blood pressure was

normal afterwards, plaintiff remained a hypertensive patient and should have been

induced as she was overweight and she was on treatment for hypertension.

[17] Prof Cronje in his report said the abruptio occurred between 1:00 and 3:00 because

plaintiff reported active pain at 1:00 and this is a symptom of abruptio. Plaintiff

should have been monitored very closely from point of induction. The other

possibility is that the abruptio started at 4:00 and plaintiff only delivered at 11:00

which is gross negligence. In his report he said the crucial time in the course of

labour was from 00:00 to 00:30 or 04:00 on 16 October 2010. This is when the

abruptio must have been diagnosed followed by action. From 01:00 to 4:00 plaintiff

should have been closely monitored, namely; foetal heart, pulse, blood pressure

and contractions. He did not accept that at 3:30 there was nothing wrong with

plaintiff and at 4:00 there is a full blown abruptio. If plaintiff was examined properly

at 3:30 they would have picked up abnormalities, because the abruptio happens

over a period of time. If the abruptio was picked up at 4:00, a caesarean section

should have been done between 04:00 and 05:00 and the chances were very good

that G[…] would not have had brain damage. The nurses made mistakes in their

entries, for example when they wrote that the labour started at 11:00 on the 15

October 2018. If the MKH was not equipped to do caesarean sections they should

not have induced a high risk patient. It was negligent to induce plaintiff and she

should have been referred to Rustenburg before induction. Plaintiff was at risk for

abruptio placenta. Everything was not normal when they started inducing her as she

was grossly overweight and she had hypertension and was at term which means

the later the pregnancy goes the higher the risk of an abruptio placenta.

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[18] The next expert witness was Dr Thomas Ignatius Wessels (Dr Wessels). He

received a BMBCH Cum Laude at the University of the Orange Free State. He

achieved the MMed in paediatrics in 1985. In 1986 he achieved the Fellow of

College of paediatricians from the College of Medicines. From 1987 he worked as a

private paediatrician and also worked in two local public hospitals. He did 20 locums

as a paediatrician in the Netherlands. He also runs a neonatal unit which manages

thousands of births a year in both the private and G[…] child and studied the expert

witnesses’ reports of the obstetrician and the radiologist.

[19] He said in the early morning of 16 October 2010, plaintiff was in a poor clinical

condition and a diagnosis of abruptio placenta was made. An ultra-sound

examination was done and they could not find a foetal heart. A clinical finding of

intrauterine death was made despite the fact that plaintiff told them that she could

feel foetal movements. This is critical from a paediatric point of view because the

focus should be the baby. All the negative effects from 3:00 that morning until the

baby was born at 11:00 had a detrimental effect on the condition of the baby. The

baby was ignored from 4:00 “and that is the condition where we as paediatricians

receive a baby in a very poor condition and at that stage there is very little you can

do to turn around the damage that has already been done. If the baby is not looked

after and monitored and decisions made on the well-being of the baby, then it is too

late when we receive the baby and that is exactly what happened here”.

[20] He said from a medical point of view the monitoring was as good as none. There

was one foetal rate of 148 and that one foetal heart rate in that period of times

means absolutely nothing. Without continuous monitoring you do not know what the

condition of the baby is. To say that the baby was in good foetal health at that stage

is untrue. That is why they use CTG as this gives you a minute to minute indication

of the condition of the foetus. He said the explanation that they could not detect the

foetal heart rate because of obesity is absolute nonsense. 50% of the patients in the

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maternity ward look like plaintiff and there is no problem in detecting the foetal heart

rate.

[21] He said to prove the cause of brain damage and to implicate birth asphyxia, you

must prove that the baby had HIE or encephalopathy, that is where the brain was

affected by a lack of oxygen. There are no clinical notes available about G[…] and

its management for the two weeks that he was in hospital. There is a prescription on

the medical chart that G[…] received Phenobarbitone syrup which is an

anticonvulsant given to babies who develops fits after birth. Anticonvulsants after

birth is one of the critical findings in a baby with neonatal encephalopathy indicating

birth asphyxia. G[…] could not suck or swallow and was tube fed for two weeks. On

discharge he was not able to swallow and had to be cup fed and often vomited

because feeding and swallowing was difficult. This also points to early

encephalopathy or damage to the brain. Further the fact that G[….] was in hospital

for two full weeks after vaginal delivery means something ‘big’ was wrong with the

baby. This is an indicator that he had neonatal encephalopathy.

[22] Cerebral Palsy (CP) is the clinical expression of damage that occurred to the brain

due to a single insult to the brain that caused injury. A normal brain at some point in

time experienced an insult which could be hypoxia, trauma, infection etc. At four

months the G[…] was diagnosed with CP. The injury to the brain must have

happened during pregnancy or labour or immediately after birth up to four months.

The only insult they can identify is the hypoxia that occurred during the last eight

hours of the labour process. The eight hours is from the time that there was

probable compromise to the intrauterine unborn baby. From the reports up until the

time she went into labour there was nothing of note that could have caused injury to

the baby.

[23] The MRI was in keeping with a Hypoxic Ischemic injury of the acute profound nature

and there were also features of partial prolonged hypoxic ischemic event. Hypoxia

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is lack of oxygen and ischemia means lack of perfusion or blood flow through the

brain. With acute profound you find dyskinetic type of CP where there is abnormal

movements of the muscle while with partial prolonged hypoxia you get spastic CP.

G[…] has predominately spastic CP. Therefore it fits in with prolonged partial

hypoxia. Acute profound means total lack of oxygen to the whole body and the brain

does not get any oxygen. So the most active parts of the brain will experience the

worst damage because it needs the most oxygen and energy while in prolonged

asphyxia it is not complete obstruction. With partial prolonged, the baby starts

experiencing hypoxia and needs more oxygen, there is a reflex in the blood vessels

and the blood gets shunted from the non-essential organs, for example, the

muscles, liver and the skin. So initially during a partial prolonged phase there is still

some oxygen and it is functioning on reserves and when the reserves are used up

and something else happens, there are no reserves to manage another acute

problem and slowly the brain get less and less oxygen and that is when progressive

brain damage sets in. Then the superficial parts of the brain develops problems

before the deepest structures of the brain. The insult is the episode that happens

which leads to injury. The severity of the insult and the duration of the insult

determines the severity of the damage.

[24] The placenta that is attached to the uterus gets blood and oxygen supply from the

uterus. With a contraction it causes pressure on the blood vessels in the uterus and

the placenta. It constricts and during that time there is low perfusion and oxygen

supply to the baby. That is why the length of the contractions must be monitored so

that it does not become too long to cause problems to the baby. With every

contraction the oxygen and blood supply to the baby decreases. With the acute

episode of abruptio the baby is functioning on reserves and every contraction of the

uterus leads to accumulative damage to the baby’s brain. After the acute profound

episode, if the baby is delivered it will be fine. After about 20 minutes, progressive

brain damage will set in. If the baby is not delivered by 40 to 45 minutes during

acute profound asphyxia the baby will die. Dr Wessels said, “if the abruptio

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placentae was so profound, so acute that it was near terminal event, if you do not

act, it is terminal to the baby. If you act immediately you can save the baby. The fact

that the abruptio was not the acute profound episode means that the baby would

have been much better off if he was delivered at that stage. His initial compromise

was aggravated by further compromise due to the labour process taking place. The

mother must have had significant contractions at that stage because the baby was

expected and it was a big baby. Hence I don’t agree that the abruptio in itself was

so bad that it caused the clinical condition. This is further confirmed by the fact that

the baby came out crying with not a good but not a bad Apgar. Babies with acute

profound are born with a low Apgar. The baby should have been monitored and if

there were signs of foetal distress the caesarean should have been done. This

would have been immediately after the abruptio”.

[25] Under cross examination he acknowledged that management of the labour is in the

field of the obstetrician except when it affects the baby and relates to the baby’s

well-being and condition. In his report he says that plaintiff had a show at 20:00. He

said he got this from Prof Cronje’s report but it is immaterial to the case pertaining

to the baby and it pertains to obstetrics also the fact that her pains got worse during

the night and at some stage she developed vaginal bleeding is also relevant to the

management of the labour process. His concerns as a paediatrician starts from the

point of the abruptio. If PV bleeding indicates an incident where there is a

compromise to the foetal well-being then it is important.

[26] He said although plaintiff was in active labour during the course of the night, there is

only one measurement of the foetal heart rate after induction on 15 October at

22:00. This is poor monitoring of foetal well-being. He said Prof Cronje said there

should be foetal monitoring every 10 minutes during active labour process. What is

important is how many times was the foetal heart monitored before the delivery of

the baby, after the abruptio because you are looking for signs of foetal distress. The

pattern of the heart rate is more important than a single recording. It is important to

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do continuous measurements with the CTG. He did not accept that the heart rate

reading between 3:00 and 4:00 of 148 was done using a CTG and explained that a

CTG does not give you a single reading. It gives you a continuous reading. You get

a single reading with a fetoscope.

[27] He said there was no clinical notes on the hospital management of G[..] during his

stay in the neonatal high care unit. This is important as it describes the condition of

the baby, what treatment was given, how he responded, how he improved or

deteriorated. He deduced that G[…] experienced HIE or encephalopathy due to

birth asphyxia. The discharge and prescription note are available which indicates

that G[…] had birth asphyxia. He said it is very suspicious that in birth asphyxia

cases, the neonatal records disappear as the notes from birth to discharge are

important because that is where the evidence lies. G[…] could not feed and was

unable to suck or swallow. He was tube fed for the first two weeks after birth. That is

typical of birth asphyxia and HIE. He said the Apgar score is a point of controversy

in birth asphyxia cases. The one minute Apgar score was such a degree that

G[…]needed active resuscitation which means that he experienced foetal distress

immediately before birth. If the five or ten minutes Apgar score is low the baby is

more at risk for brain damage. Although G[…] scored better in the five and ten

minutes Apgar, he has severe brain damage. This does not correlate with the facts.

[28] He was questioned about the MRI finding that it was acute. He said the abruptio

initiated the hypoxic episode that carried on for eight hours. The abruptio in itself

was not the only cause for the damage. It started the process because that is when

a part of the placenta became loose from the uterus. That is when G[…] started

experiencing hypoxia and asphyxia and this was aggravated by the fact that he was

not delivered immediately. If the abruptio was the sole cause of the acute profound

event, G[…] would have died after 15 to 20 minutes. The radiologist do not know

what happened in labour. In Dr Wessels’ opinion the acute profound event is a

combination of the abruptio plus the prolonged period of labour during which

15

contractions took place and caused the chronic asphyxia to the baby. A caesarean

section was supposed to be done as soon as the diagnosis of abruptio was made

before hypoxic damage sets in. The only point of difference between him and Prof

Cooper is that Prof Cooper opines that the abruptio was so severe that it caused the

brain damage in the first 30 minutes after the abruptio and the baby developed his

complete brain damage at that period and that the seven hours after did not have

an impact on G[…]’s brain damage and Dr Wessels disagrees.

[29] M[…] P[…] M[…], (plaintiff) is 40 years old. In 2010 she was 32 years old. Her

highest standard of education is Grade 11. In 2010, she had an 8 year old daughter

and was pregnant with G[…]. During her pregnancy, she visited the clinic and she

also went once to a private doctor. She said on 7 October 2010, she was at the

clinic for a check-up and the midwife gave her a letter saying that she has blood

pressure and she should go to the MKH. At the hospital a doctor examined her and

she said she does not have blood pressure. She returned to the clinic on 12

October 2010 where the midwife gave her another letter and told her to go to the

MKH the next day. On 13 October, she went to MKH where she was admitted.

[30] On 15 October, they induced her every 2 hours from10:00 until 22:00. She said

before she drank the last induction at 22:00 she went to the toilet and when she

wiped herself with a toilet roll she felt that she was becoming wet. She went to the

nurses and showed them the toilet roll. She described it as “a gel, some dirtiness”.

The nurses told her to throw it in the dustbin and gave her the last induction at

22:00. She said after the last induction she went to the nurses and informed them

that she has pains. One sister Modikwe told her to go into the labour ward and

place a sheet on top of the bed. She was in pain as she walked back to find a sheet.

She walked and stopped because of the pain. She felt pain on her abdomen and

stomach going to her waist. She placed the sheet on top of the bed and waited for

the nurses. While on the bed, she cannot recall the time she felt like something like

water was coming out from her vagina. It was not water but blood. There was no

16

nurse with her. She screamed for the nurses but they did not come. She became

dizzy and everything was spinning and she couldn’t remember what happened

thereafter. She regained consciousness in the morning.

[31] She said in the morning she observed that both the night staff and morning staff

were present. She said the staff change at 7:00. The doctor was also present. The

nurses asked her questions about herself and she answered but not fully as she

was not breathing properly and she felt as if she was suffocating. The doctor used a

sonar to check the baby. The doctor told her that there is no heart beat and she told

the doctor that she felt movement. The doctor told her that her mind was telling her

that she was going to have a baby. She observed that the sheet that was full of

blood had been replaced with a clean sheet and they washed her.

[32] She said they called an ambulance and took her to the JSTH. At the JSTH she was

attended to by three doctors. One doctor suggested they do a caesarean section

and the other said no as she had lost a lot of blood. They did a sonar and told her

that they don’t hear the heartbeat. She told them that she can feel movement and

that the baby is alive. She told a midwife, Masego that she could feel movements.

The midwife became angry and told her not to give her a stroke. G[…] was

delivered at 11:20. The nurse only came in when they heard the baby cry.

[33] She was told to breastfeed G[…] and she tried but he was making choking/gasping

sounds. The following day she was discharged. G[…] was kept in the ward for

premature babies. He was kept in an incubator and fed with a drip and given

oxygen and after three days, G[…] was fed with a feeding tube and was sleeping.

He was discharged after three weeks on 4 November 2010. She was not told about

his condition. On discharge she was given epilepsy medication for G[….]. She could

not breastfeed him and fed him by putting milk into the lid of the bottle and placing it

on the mouth so he could drink. G[…] is now 8 years old and cannot walk, sit or

speak and has not developed like a normal child.

17

[34] Under cross examination, it was put to her that the times she gave in her affidavit

differ to the times she gave her attorneys. Her affidavit is signed in March 2017

while the attorney received information before November 2013. In the particulars of

claim it is alleged that she had contractions at 19:00. She said that before she took

the glass at 20:00 she had labour pains. It was put to her that she told Dr Wessels

that she was experiencing contractions at 18:00. She said she started to feel pains

after 18:00 and that Dr Wessels misunderstood her. She said after she took the

glass of liquid at 18:00 she felt pain and that is when she became aware of what

was on the tissue. She showed the nurses what was on the tissue after 18:00. She

denied the correctness of the letter of demand and the affidavit for condonation

which said that she went to the toilet at 22:00. She reiterated that it was after 18:00.

She said the time when she showed the nurse the tissue, she started to feel pain

but it was not painful. Hours passed and then she drank the liquid at 22:00 and the

pain was stronger and that is when she went to the nurses to report the pain and

was sent to the labour room to look for a sheet.

[35] She was asked to explain the discrepancy between Dr Wessels report where he

states that she was seen by a nurse at 23:00 while the letter of demand states that

a nurse checked on her at 24:00. She said at 23:00 the nurse did not examine her

but picked up a scissor and said “we forgot about you”. At 24:00 she was inside the

labour ward and was not seen by a nurse. She said her labour started on 15

October and not 16 October. It was put to her that at 3:30 sister Modikwe conducted

a PV (vaginal examination) which she could not have done if she was bleeding. She

disputed this. She did not recall being attended to at 4:00 or 4:30. She could only

recall when she awoke in the morning and saw both the night and day staff. She

was able to recognize the different nurses as she was admitted for 3 days prior to

that. She could recall that they called the doctor. She said when she ‘blacked out’,

they woke her by slapping her and asking her questions. They called the doctor

when they saw that she was bleeding. It is the same doctor that she saw when she

18

regained consciousness and who she told that she could feel the baby move. She

did not know why the letter of demand states that no sonar was done a JSTH when

it was done. She admitted that she did not have a clear recollection of the times.

[36] Defendant’s first witness was Dr Susile Parvataneni (Dr Parvataneni). She is a

medical doctor who qualified in 1976. She worked in Zambia at a University

teaching hospital for 3 years from 1978 to 1984. From 1984 to 1989 she worked at

the Zimbabwe Neuro Provincial hospital in the obstetrics and gynaecology

departments. She has worked in South Africa since 1990 in the maternity

department at the MKH. In 2010 she had 32 years of obstetrics and gynaecology

experience. She received training in conducting ultra sounds and performs

approximately 12 – 15 ultra sounds daily. She received special awards:

a) 2005 – best performing doctor;

b) 2008 – MEC Excelled awards – First place in the North West Province.

[37] On 15 October 2010 she was a Grade 3 medical officer at the MKH in the maternity

section. Her work included performing normal caesarean sections. She said in

complicated cases they refer it to a level 1 hospital. She saw plaintiff on 15 October

2010 when she was full term. Her blood pressure was 115/75 and she had

pregnancy induced hypertension. At that stage there was no concern. According to

the clinical notes on 15 October 2010, plaintiff was to receive 200mg of cytotec in

200ml water, 3 doses of 20mls and 3 does of 30ml and a last dose of 40ml. On 16

October 2010, she saw plaintiff at 4:00. Her blood pressure was 63/54 which is

indicative of very low pressure. Plaintiff had lost blood and was in shock. Plaintiff’s

abdomen was tender She did a sonar using an ultra sound machine and a foetal

heart rate was not heard. With the sonar, she observed a retro placental clot. She

diagnosed an abruptio placentae and requested a full blood count. She remained

with plaintiff from 4:00 to 4:30, because plaintiff’s blood pressure was low and she

lost 1litre of blood. She was able to say that plaintiff lost 1 litre of blood as she

19

measured the clots and from the bed linen that were soaked in blood. She

resuscitated plaintiff by giving her two drips which included 1 unit of blood which is

500ml. The resuscitation was successful as plaintiff’s blood pressure went up.

There was no active bleeding. She said, it is protocol to refer an abruptio placenta in

30 minutes. She contacted Doctor Sereke at Rustenburg hospital and agreed to

transfer her to the JSTH. She completed the transfer form at 4:30. The sister calls

the ambulance. The JSTH is approximately 45 minutes away. She did not see the

patient again after 4:30.

[38] She said she worked 32 years doing sonars. Her explanation for not detecting the

foetal heart is plaintiff’s weight. She said before she used the sonar she first used

the foetal scope and could not detect the heartbeat. Had she detected a heartbeat

she would have referred plaintiff to a level 2 hospital as she would need a specialist

anaesthetist also her blood pressure was low, she was in shock and the placental

bleeds a lot during the caesarean which is a risk to the mother’s life. Also a level 1

hospital does not have a blood bank. They only keep a few units for emergency

cases. She explained that they are a level 1 district hospital where they manage

mild to moderate hypertension in pregnancy where the systolic is 140-159 and the

dystolic is 90-109. If the blood pressure is more than 160/110 this is severe

hypertension and eclampsia and in terms of their protocol, the patient must be

transferred to a level 2 hospital.

[39] Dr Parvateneni admitted in cross examination that it is a possibility that the

induction of a woman with mild to moderate high blood pressure could lead to an

abruptio plancentae as well as because in the last two weeks of pregnancy, the

placenta is ‘not sufficient enough’ because of the hypertension in pregnancy. They

would therefore induce to prevent foetal death. She said they would not allow a lady

in the last two weeks of pregnancy to go into spontaneous labour. She admitted that

if they have a patient with high blood pressure who is obese and they induce, there

is an increased risk of an abruptio and they should be monitored every 4 hourly and

20

once they go into labour, there should be hourly observations of the mother and the

foetus, namely, the blood pressure, foetal heart and the contractions. She said by

inducing they are initiating the labour and once the labour starts, the patient is not

given the cytotec solution. She said the maximum dose is 7 every two hours if the

labour does not start. Plaintiff had 7 doses up to 22:00.

[40] She said she is relying mostly on the clinical notes for recollection of the events.

When she saw plaintiff at 4:00, there was only slight bleeding as she had already

bled and at 4:30 there was no active bleeding. She explained the method she used

in looking for the heartbeat, namely, from the bottom where the baby is present, the

head or the leg which is called breach and then the thorax where they test the heart

beat and then up to the placenta. She said “because of the abruptio I was looking

for placental clot”. She wrote in her note “retroplacentae clot after internal

examination was 2cm, the opening of the womb and the cervix is thick”. She

explained that this means that there was no effacement. Usually if the lady goes

into labour the cervix will become thin and will be soft. Plaintiff’s cervix was still thick

which mean that she was not really established in labour.

[41] Regarding the emergency transfer to Rustenburg, she said sometimes the

ambulance may be busy with other patients or it may not be working. Then it may

take one and a half to two hours. Dr Parvateneni did not dispute that plaintiff had

blanked out and when she came to she was told that her baby is dead and plaintiff

told her that she could feel movement. She said it is common that mothers do not

accept it immediately. She said at 4:30 there was no active bleeding but at 7:00

there was PV bleeding. There was slight bleeding as the bleeding does not stop

completely. There is no mention of how much bleeding. If it was excessive bleeding

a doctor would have been called. She said the information contained in the

‘Summary of labour’, namely the date and time of the first stage of labour, that is

when the labour starts until the patient is 4cm dilated, (11:00 on 15 October 2010) is

21

incorrect. The document was only signed by one Tlhalefang Dijale, a student and

should have been signed by all the nurses who attended plaintiff.

[42] Sister Modikwe is a professional nurse with qualifications in general nursing and in

midwifery, management and administration. She received her nursing training at the

George Shimankane Hospital and qualified in 2000 and midwifery at the Mmabatho

College of Nursing in 2006. In October 2010 she was a midwife in the maternity

ward at the MKH. She has been employed there since 2006.

[43] She was on night duty on 15 and 16 October 2010. She said the protocol in the ante

natal unit when a patient is in the early stage of labour is to monitor her four hourly.

On 15 October, she also signed four entries in respect of plaintiff in the antenatal

ward and two entries on the clinical notes when cytotec was administered. She also

completed the initial assessment form when labour was reported for the first time at

3:00 on 16 October. On this form she noted pregnancy induced hypertension (PIH).

She said she got this from the antenatal care history. Under general examination

plaintiff’s blood pressure (PB) was 114/69 and her temperature was 360 C. She

looked good. Plaintiff was 9 months and the examination showed that she was

close to labour. The head in correspondence with the abdomen was 4/5 which

means that the baby “was still high from the bones of the waist”, the pelvis. Her

contractions were less than 20 seconds. The foetal weight was estimated at 3.5kg.

The foetal heart (FH) was normal. From the vaginal examination, the membranes

were intact and there was no blood and the cervix was thick. At 3:00 when she did

the PV examination, plaintiff was not bleeding. The pelvic assessment was normal

which means that plaintiff will deliver normally. Under risk factors, PIH is noted. She

said PIH is high risk and they anticipate the foetal distress, that is when the baby is

having low heart rate or increased heart rate and they anticipate postpartum

haemorrhage, that is bleeding after delivery. Based on the assessment at 3:00,

there was no cause for concern.

22

[44] She noted that at 3:30, plaintiff reported labour and a PV was done which showed

that she was in labour and the contractions were mild. Her PB was 114/69 and the

FH was 148. This is normal. When asked whether there was a cause for concern at

this stage, she replied “yes, apparently there was a concern because this patient

was in labour at 3:00 and immediately after 30 minutes she came again crying with

the severe pain or what, I don’t remember, because it is a long time ago”. When

questioned how she recorded the FH, she replied “I used a foetal scope, I mean the

CTG to test the foetal heart rate because this patient apparently was obese and

then with the foetal scope, it fails to hear it, … I use the foetal scope I mean the

CTG here. Using the CTG I listened to the foetal heart rate, the rhythm and the

readings on the foetal, on the monitor and then that’s how I came to write 148 beats

per minute”. She said she was certain that she used a CTG and not a foetal scope

because plaintiff was obese and it is difficult to detect the foetal heart rate with the

foetal scope. She said the foetal heart rate reading correlated with the rhythm of the

foetal heart rate on the monitor. A normal foetal heart rate ranges from 160 to 180.

When asked to explain, she said it was normal between 140 and 180 beats per

minute.

[45] She called Dr Parvateneni at 4:00 because of the pain that plaintiff reported which

didn’t correlate with the cervical dilation. She said she didn’t recall plaintiff at all and

was relying on the notes. She said after Dr Parvateneni did the scan she said there

was no FH rate and she there is a placentae abruptio and diagnosed antepartum

haemorrhage. They estimated the blood loss from the blood they observed and

from the soaked linen. She said she called the ambulance 10 minutes after Dr

Parvateneni wrote her entry.

[46] In cross examination she admitted that she was supposed to write down that she

contacted the JST and the ambulance for transfer and because of nine deliveries

per night she probably didn’t note that she called the hospital. She denied that the

nurse on duty at 7:00 is the one who arranged the transport. She said the nurse got

23

the report from night staff and she only noted that ‘the transport was arranged’ and

not that she arranged the transport. She said they have a CTG print out when she

took the foetal heart rate at 3:30. She admitted that she did not record that this was

a CTG recording. She said the FH rate is recorded even if there is no tracing paper

and they correlate it with the beat that they hear and they will pick up if there is

foetal distress. She admitted that the CTG without the print out does not give you a

single number like 148. She was confident that a CTG was used as she said

plaintiff was obese and the FH rate is difficult to detect with the foetal scope.

Another reason for using the CTG was that and they could not use the foetal scope

because plaintiff was experiencing extreme pain and with a foetal scope you have

to go deeper and press the abdomen very hard. She said Dr Parvateneni used the

foetal scope as she has more skill.

[47] Bafedile Sinah Malope, trained as a nurse from 1979 to 1981 and worked at the

Moreteletsi hospital. In 1986 she studied midwifery for 2 years at the Kuruman

hospital and worked as a midwife at the Moreletsi Hospital until she was transferred

to George Shimankane Hospital in 2004. In 2005 she did a diploma in General

Nursing. From George Shimankane she was transferred to the MKH where she

worked in the maternity until 2014 when she went on pension. In 2010 she was a

midwife, a psychiatric nurse and a community science nurse.

[48] On 15 October 2010 she gave plaintiff cytotec at 18:00. Plaintiff’s BP was 120 and

the FH beat was 140 beats per minute. In the clinical notes, she recorded on 16

October 2010 at 7:00 that she “found plaintiff in the labour ward at 7:00 having PV

bleeding, PV not done. Transfer arranged due to PV bleeding which commenced at

4:00”. She said before the night staff leaves both the day and night staff go to the

ward where the patient is. The midwife gives her a report and examines the patient

and writes down, listening to the vitals and foetal heart and will show it to her and

she will also confirm same. She said plaintiff was a high risk patient who had been

examined by the doctor who found placenta abruptio. She corroborated Sister

24

Modikwe evidence that it was sister Modikwe, who arranged the transfer to the

JSTH. She is certain that arrangements were made for transfer because the doctor

who is transferring the patient writes on the clinical notes and fills in a transfer form

and Sister Modikwe informed her that plaintiff was supposed to be transferred to

JSTH. She said in the clinical notes, she wrote FH not heard after she took the

foetal scope to listen for the FH. She said she is good at using the foetal scope as

she was taught in 1987. She also said that at the time she took the report with sister

Modikwe, sister Modikwe had checked the FH using the CTG and did not find a

heartbeat and that is the reason why she used the foetal scope. She said she was

the third person to check the FH and did not find it. Plaintiff was obese and this

could be the reason why the FH was not heard. She could not recall plaintiff

specifically because it was four years ago and she relied on her notes.

[49] Under cross examination she said they take the patient’s vital signs when the

patient is given cytotec. She was directed to the entries made when cytotec was

administered and it was put to her that there were only three entries when plaintiff’s

vital signs were noted on 15 October 2010. She said when a patient is in labour

without bleeding and cytotec is administered they monitor the patient every four

hours and the foetal heart every 30 minutes. She said they work hand in hand with

the patient who must inform them when the pain start. When a patient is not having

labour pains and cytotec is administered, the patient will be monitored every six

hours. From the record it is noted on the 15 October 2010, that plaintiff’s BP and FH

was monitored at 6:00, 8:00,18:00 and 22:00

[50] Prof Adam is a professor of Gynaecology and Obstetrics. She is presently the

clinical head of Obstetrics and Gynaecology at the Chris Hani Baragwanath hospital

and in 2015 – 2016 she was the academic head and prior to that she was in private

practice. Professorship was conferred on her in 2015. As clinical head she is

responsible for everything that has a clinical outcome and she is also involved in

teaching midwives, medical students, nursing students, clinical associates and post

25

graduate students. She has completed several research studies in various topics

including causes of stillbirth, babies with hypoxia and obesity in pregnancy. She

also did research in emergency caesareans and how long it took from the time they

take a decision to do a caesarean section. A further study she conducted is, “The

effect of maternal weight on obstetric outcomes” in which study they looked at

whether different mothers’ BMI affected maternal outcomes and perinatal outcomes

such as stillbirth or easy neonatal deaths and low birth weight babies. She wrote

several journals and articles. In one of her presentations they considered whether

the induction of labour using misoprostal (cytotec) was associated with poorer

outcomes in both the mother and the foetus and whether there was poor outcomes

to those babies and if there were, whether it was related to the induction or

something else.

[51] In her report, she states that plaintiff’s BMI was 38.85 which falls under obesity

class 2. She said plaintiff was admitted to the MKH which is a level 1 district

hospital. There was a formalised referral process which she explained was a

pyramid, where at the bottom you have the least complications and at the tip there

are fewer patients but the resources and skills are greater than at the bottom. The

American College guidelines recommends 50 micrograms. She said the way

cytotec was administered to plaintiff was the protocol. She said the protocol is

normally 12 doses of misoprostol (cytotec). The JSTH went up to 7 doses. If after

12 doses the mother is still in labour, they rest her for 24 hours and start the

misoprostol the next day with up to 7 doses.

[52] In terms of the intrapartum guidelines for South Africa published in 2012, there are

patients, who are referred to district (level 1) hospitals for induction due to

hypertension or women who are post-date, that is more than 41 weeks. The

maternity case guidelines which was updated in 2015 refer patients upwards from a

level 1 hospital if their BMI is 40 and above. It depends on the hospital, for example

with the Albert Luthuli hospital in KZN, the criteria is BMI of 50. She said they would

26

induce mothers who are hypertensive at 38 weeks. With a ruptured placenta they

would deliver if it was a live baby but do a caesarean if the baby is not alive. She

said plaintiff is classified as high risk because she came in with hypertension. A

high risk woman in South Africa is classified as a woman who cannot deliver in a

midwife obstetrics unit.

[53] In her report she states that plaintiff was referred to the hospital on 7 October 2010.

She was 38 weeks pregnant and should have been admitted and probably induced

on that day. No one can say if she was induced on that day, the outcome would

have been different. In her report she states that “a rupture placenta is an accident

and whether there are risk factors associated with the condition, it cannot be

predicted and therefore not presented”. A ruptured uterus or a cord prolapse is a

sentinel event. She said an acute profound event occurs when there is a sentinel

event and you have a sudden reduction of oxygen to the baby’s head, then those

areas in the foetus which have a higher metabolic rate for example, the brain, are

very susceptible to the sudden loss of oxygen. A prolonged event occurs when

there is foetal distress with recurrent decelerations or with ongoing hypoxia and

every time there was a contraction you would get a prolonged effect. The prolonged

effect would give you other effects not just in the head, but also for example an

acute kidney injury.

[54] Professor Adam stated that at 3:00 on 16 October, Sister Modikwe did an initial

assessment and plaintiff’s cervix was dilated by 1cm and the contractions was less

than 20 seconds in duration. This means that plaintiff was in the early or latent

phase of labour. The early signs of labour are regular painful contractions with any

changes in the cervix or with a show which is a mucous plug coming out of the

cervix with rupture of membrane. You have to distinguish whether it is the latent

phase of labour. If there is a change to the cervix it is the early labour. The

appropriate monitoring for a patient in this phase is maternal monitoring every hour

and the FH rate every two hours in the latent phase. She explained that an

27

abruption placenta is a premature separation of the placenta from the uterus

(maternal circulation). When the placenta separates prematurely there can either be

a clot behind the placenta where you will not see the blood loss or you could have

the blood coming out which is a haemorrhage where the mother’s health is at risk.

In this condition, the mother is in shock and her heart rate goes up and her blood

pressure is reduced. With the clot formation there is also blood loss. The body takes

up the clotting factors and tries to stop the bleeding and then the bleeding becomes

worse. Where you don’t see the blood at all, that is a concealed abruptio. For the

baby the separation means a reduction in oxygen and other nutrients. The baby’s

heart rate goes down when the mother is challenged and where you get the FH rate

going down you call it a bradycardia, which by definition is a heart rate in a baby

that is under 100. It is sudden and has an acute effect on the baby.

[55] Plaintiff was in shock as her BP had dropped and she had lost “large amounts of

blood, a significant amount of blood”. It was recorded that she lost 1litre of blood.

She needed resuscitating to get her systolic BP above 90. The fact that the doctor

at the JSTH noted a small retro placenta clot means that most of the bleeding was

seen. She said the grading of the abruptio is the level of severity. The most severe

is where there is intrauterine death. Grade 2 is where there is some effect on the

foetus. She said they gave plaintiff 3 units of FFP (Fresh Frozen Plasma) and 4

units of blood. Based on this she said the rupture was severe, 4 units of blood in 24

hours is almost a replacement of the blood volume and 5 units is a replacement.

She said Dr Parvateneni’s response to resuscitate plaintiff was correct, a reading of

93/54, indicates that it is responsive. BP was then appropriate to do a caesarean

section. They had to resuscitate plaintiff before they could do a caesarean section.

[56] Standard protocol once you diagnose an abruptio is to do a caesarean within 30

minutes while resuscitating the mother. Plaintiff’s BP was responsive. The fact that

a caesarean was not done within 30 minutes would not have changed the outcome.

She said, what we know about abruptio is that even if the caesarean was performed

28

within 25 minutes, it may not have been adequate. Prof Adam disputed that the size

of the retro placental clot equates with the outcome. She agreed with Prof Cronje

that the abruptio could happen within minutes or over a period of time. If it is

concealed you would not see it which could mean that it is happening over some

time. It can happen as a sudden event and you can see the amount of bleeding. It

was put to her that Prof Cronje said that it is impossible that everything was normal

at 3:30 (normal heart beat). She said it is possible that you have a completely

normal tracing and then you have an abruption. “Those are accidental things which

you cannot see”.

[57] Prof Adam also states that “once a sentinel event occurs, the risk of perinatal

morbidity is high. In these times it is the severity of the sentinel event and not the

time to delivery which is the most important factor. When looking at the MRI and the

fact that plaintiff’s pressure dropped significantly one can conclude that the sentinel

event was a catastrophic event”. In her report, she states that the sentinel event

such as the placenta abruption caused the acute profound injury and is responsible

for the subsequent neurological damage. She explained that “It was a big bleed that

caused plaintiff’s blood pressure to drop. As it was significant to the mother it was

significant to the baby…in the light of the MRI without any further effects or an effect

of ongoing hypoxia and also the fact that there was no ongoing bleeding in the

mother and in the light of the paediatric report. I would say that this was the sentinel

event.” In response to Dr Wessels hypothesis or theory that there was a sentinel

event just prior to delivery, she said there was no recording of ongoing bleeding. If

there was another event, then one would say it was a concealed abruption and with

the delivery of the placenta you would see a clot. The blood in this case was a little

over a cup. When she looked at the summary of labour from the hospital, she said

the total blood loss is 300 ml which is the blood after delivery which is measured.

Hence there was no post-partum haemorrhage which is 500ml with a normal

delivery. “There was a small retro placental clot which was added to the blood loss

29

to come to 300ml. There certainly was not another abruptio that we could see

evidence of”.

[58] She explained that in obstetrics an emergency caesarean section must be done in

30 minutes. This is endorsed by the American College and the Royal College. But

subsequent thereto there have been other studies a 2010 meta-analysis where they

found that the outcome for babies may be worse in those babies that were born

before 30 minutes. In her report she states that “a caesarean section is indicated

when there is a placental abruption and a live baby and when the mother is not

imminently deliverable vaginally. This incorrect diagnosis is a major concern and

resulted in there being no fatal monitoring”. She said she referred to it as a major

concern because it changed the medical management going forward, because if

they found a foetal heart they would have done a caesarean section which might

not have changed the outcome but it changed the management. She said there had

been occasions in her hospital when the FH was not heard when the mother was

obese or when the staff were junior and inexperienced. An intern doctor in her

hospital cannot make a diagnosis but a conserve doctor (3years) can make a

diagnosis.

[59] She and Dr Cronje prepared a joint minute as there was a difference of opinion. She

disagreed with Dr Cronje that because plaintiff was high risk (obese, induction and

high blood), there should have been monitoring every 20 minutes. She said there is

no different monitoring for patients who are above in terms of time. The timing of

monitoring for induction is every 2 hours and every 4 hours. Every 2 hours is a FH

and every 4 hours is maternal monitoring and patients who are hypertensive have

their BP checked every 4 to 6 hours. She disagreed that the onset of labour was at

22:00 on 15 October 2010. There is also no evidence in the hospital records of

acute pain from 22:00. Pain is a sign of labour and not abruptio. The first change in

the cervix when plaintiff was in labour with mild contractions was at 3:30. Dr

Pavarteneni examination at 4:00 is consistent with sister Madikwe clinical notes at

30

3:00 that there was no effacement which is the thinning of the cervix. Prof Adam

said it is not possible to state that the abruptio started at 01:00.

[60] Under cross examination she said the reason for induction in a patient who is

hypertensive is not to prevent abruptio, it is to prevent the ongoing effects of the

hypertension in the mother. The effects of hypertension in the mother is that the

mother could become pre eclamptic and would be at risk for a stroke and for renal

disease. These are the main reasons for inducing at 38 weeks. She admitted that

gestational hypertension is an independent risk factor for placental abruptio but said

it is not the reason why they induce mother. Although today at her hospital they

induce patients who are hypertensive at 38 weeks. In the intrapartum guidelines for

2012, they induced at 40 weeks. She denied that if plaintiff was induced at 38

weeks, the chances of her getting an abruptio during the labour would be less. She

said nobody can say that because an abruptio is an accident.

[61] She said as plaintiff’s BMI was less than 40 she did not fit into the high risk

classification. She agreed that induction can lead to hypertonic contractions with

foetal decelerations which if it continues for too long, leads to possible hypoxia of

the foetus. She said the high risk factors such as hypertension, obesity and

induction do not affect each other separately and they follow the intrapartum

guidelines on which protocol to follow which is updated by research and doctors.

For obesity she would not be induced only for hypertension. They consider each

risk and put the benefits against it separately. The risks are not additive. They have

good evidence that they do not affect each other. She denied that because plaintiff

was obese and hypertensive that she should have been referred to a higher

hospital. She said abruptio occurs in 0, 5% of all women (1 out of 200). She said the

hospital is a district hospital and they should have the ability to do a caesarean

section. She however denied that they were negligent in inducing plaintiff when they

do not have the ability to perform caesarean sections because she said they have

guidelines and protocols which allow them to induce hypertensive patients.

31

[62] She said, plaintiff’s blood pressure and pulse should have been monitored every

two hours after induction. She agreed that according to the medical records there

was monitoring of the FH up until 22:00. The next monitoring was at 3:00 or 3:30.

Hence there was no monitoring for a period of 5 hours. She reiterated that failure to

see the FH with a sonar is unacceptable, but she does not know that the outcome

would have been different. In her report she states that “the fact that the baby did

not die is an indication that the abruptio was not complete even at the time of birth.

The baby was born with a good Apgar”. G[…] had an Apgar of 6 and 9. A 9 Apgar

means it has a normal heart rate. G[…]’s heart beat recovers completely.

[63] Prof Adam admitted that she is assuming that the acute profound damage to the

brain of the baby was at the time of the abruptio at 4:00 and that the baby recovered

which gave him a normal heart rate 7½ hours later. She agreed that the areas of the

brain that is damaged during an acute profound insult is the central core of the

brain, referred to as the Brainstem, thalamus and that the damage that you get with

partial prolonged damage is to the cortical matter of the brain, the outside of the

brain. She said a prolonged insult is a repeated insult and initially the baby can

compensate because you have various stages inter alia compensatory

mechanisms. Prof Adam was questioned on the article, “Review how long have we

got to get the baby out” by Janet Rennie and Lewis Rosenbloom1. This article

looked at profound or acute damage. She said a normal heart rate of a baby is

between 110 and 160 and bradycardia is a low heart rate that is usually below 110

beats per minutes, a severe bradycardia would be down to 80 or more severe down

to 60. In the article the authors state that the data supports the evidence provided

by the private studies regarding a worse outcome if an acute near – total insult is

superimposed on the previous episode of partial hypoxia.

1 Janet Rennie/Lewis Rosenbloom – How long have we got to get the baby out? A review of the effects of

acute and profound intrapartum hypoxia and ischaemia

32

[64] Prof Adam was questioned on an article written by Joseph Pasternak2 called “The

Syndrome of Acute Near – Total Intrauterine Asphyxia in the Term Infant”. In the

article, they describe the radiological features of acute neonatal intrauterine

asphyxia and they selected infants who experienced a prolonged persistent

bradycardia. The authors said the patients in the study experienced a prolonged

persistent bradycardia. The hypoxia ischemic insult occurred at the end of labour

and was acute and severe. Dr Adam said in this case the acute insult occurred at

4:00 and plaintiff had the effect, namely the big bleed and there are no indications of

late decelerations or even any decelerations before this happened. There is no

clinical evidence that there was an abruption before 4:00. She said the Pasternak’s

study was a retrospective study and they took patients who had the outcome and

they were looking back. It was put to her that in the second phase of labour the

mother is 10 centimetres dilated and the contractions usually increase during the

first phase until it gets to the second phase and the baby is expelled. She denied

that the contractions have the effect that while there is a contraction at the late

stage, the arteries are contracted and you have a normal deceleration of heart rate,

she said this is speculation. She admitted that during contractions the arteries

contract and for a short period of time, the baby gets less oxygen and the baby’s

heart beat may go down and it goes up when the contractions passes but said it

does not happen in all babies. She said not all normal babies have this pattern of

deceleration. There is a way for them to say which ones are normal and which ones

are pathological. She denied that during a contraction less oxygen goes to the brain

and said it will take oxygen from other organs. She said most foetuses would not

have decelerations in the second stage. She accepted that there will be less oxygen

going to the brain whether they show a deceleration or not. She said the

contractions are always 60 seconds in the second stage. She denied that because

the contractions increase in strength and intensity in the second stage that it may

result in the baby becoming hypoxic.

2 J.F Pasternak MD - The Syndrome of Acute Near-Total Intrauterine Asphyxia in the Term Infant

33

[65] In further cross examination, Prof Adam said the studies done on the animals are

not the same as the studies on the humans. Also that the bradycardia is not a total

shutdown of oxygen and that one does not know exactly how long the bradycardia

was that caused the damage. Prof Adam was referred to the article by Andrew

Macnab3. The Etiology and Evolution of Foetal Brain Injury, it reads: “in applying

this data to the human foetus it is recognised that what occurs most often is a near

total profound interruption of brain blood flow and oxygen delivery rather than an

event where hypoxia and ischemia are absolutely total in nature”…. “it is generally

agreed that approximately 15 minutes and possibly up to 20 minutes of sudden

profound asphyxia can be tolerated by the human foetus prior to brain damage….

then after this grace period damage to the brain begins to occur and over a further

period of 15 to 20 minutes the extent and severity of the injury becomes

progressively more profound over time and beyond this period a human foetus is

usually born dead”. Prof Adam said the article is not talking about severe hypoxia

but hypoxia generally. The degree of hypoxia is as important as the duration. She

was also referred to the article by Volpe4, the author or editor in chief of the

handbook that is used in the wards regarding neonatal neurology. His article is

called “Hypoxic – Ischemic Injury in the term infant. Pathophysiology.” She said the

picture from the MRI scan is that many cells in the deep core that govern life died.

Because the baby was born alive, the basal ganglia and the brainstem were not

totally destroyed. She said it is not an all or none phenomenon. You do not get the

total necrosis of the entire area. In response to Volpe that “the large majority of

insults occur in the late intra uterine inter partum period. This occurs generally from

10 to 46 minutes before delivery”. She said it is “large” and not “all”. Since Volpes

article there have been many differences and changes. Pasternak’s work is also

late 1990. She said textbooks look at generalities. She referred to Rennie’s article

supra where the conclusion for half of the patients was that if the baby is already

compromised then the effect of asphyxia would be greater, she said that in those

3 Andrew Macnab: The Etiology and Evolution of Foetal Brain Injury 4 Joseph J. Volpe – Hypoxic – Ischemic Injury in the term infant, Pathophysiology

34

patients that were compromised they had similar effects but you cannot take it that

all of the babies who have acute profound event had been compromised prior to

that. She said in that study half of them had CTG’s before the event and half did not

and Volpe says it’s a generality. She said when interpreting literature from 1985 to

1990 you must also consider the new literature.

[66] It was put to her that according to Volpe what is likely to occur after a brief repeated

hypoxia insult is that it first causes accumulative deleterious effect on the cardio

vascular function and that can result in severe blood insult and that is when the

damage is done. She replied that Rennie supra says differently, where half of the

babies had an acute insult and half of them had abnormal tracings, so half had

normal and the other half abnormal. It was in babies who had asphyxia and those

babies who did not. It was put to Prof Adam that the data in both Volpe and Rennie

supports the evidence in the studies regarding a worse outcome if an acute near

total insult is super imposed on previous episodes of partial asphyxia. She

reiterated that in the study not all of them had evidence of asphyxia so the near total

insult could cause a severe abnormality. With regard to Pasternak’s article, she

said retrospective studies are bias and there was also an inclusion criteria for the

study, namely seizures with bradycardia at the end of delivery. You can only

generalise this information to babies who had seizures and to babies who had

bradycardia at the end of their delivery.

[67] It was put to Prof Adam, that plaintiff’s loss of 1litre of blood is not a significant loss

of blood, especially since a pregnant woman has 2 litres more blood than a non-

pregnant woman. Prof Adam replied that if you look at the effect on plaintiff, it was a

considerable and significant bleed as it caused her to go into shock and it reduced

her systolic pressure by 50%. She said a pregnant woman’s blood pressure is

slightly lower in pregnancy but in the third semester it goes up. Plaintiff’s BP

dropped to half of what was before. This she said is considerable. Her pressure

dropped to 63 over 54. The diastolic was 54 which means she is in shock. It fits

35

clinically with a severe abruption namely, a big bleed, hard uterus and one cannot

detect the FH with the ultra sound. She said in her minutes when she wrote that “the

indications are that this is not a complete abruptio”, she was saying that because

the baby survived. If it was a complete abruptio, the baby would not have survived.

She admitted that in her minute she did not write that it was a severe abruption.

[68] It was put to her that having regard to the literature, it is unlikely that the abruption

would cause an acute profound or near total asphyxia effect on the foetus given that

the small clot was graded as one or two. Prof Adam said the incomplete abruption

was severe and there is no second abruption. All the medical staff that examined

plaintiff going forward said there was no bleeding and plaintiff’s blood pressure was

stable at the JSTH. She said the nurses’ recorded at 7:00 on 16 October 2010,

“bloody OSS dilated”. This means that there was a little bit of blood on examination.

In obstetrics if there is significant bleeding, the staff will write that there is bleeding

and they would call the doctor. She denied the fact that because the baby survived

that it does not mean that it was not acute. She said from the literature there are

babies that were born who had bradycardia and were delivered even after 45

minutes, those babies were resuscitated and they had good Apgar’s of 6 and 9. She

referred to the article by Benjamin Y Huang5 Hypoxic – Ischemic Brain Injury:

Imaging findings from birth to adulthood, where they evaluated 33 cases of

placental abruption which found that the babies had poor outcomes with abruption

placenta. It was put to Prof Adam that if you have hypoxia, the longer you stay in

the mother before you are born, the more likely you are going to have damage. She

said that is only if there is ongoing hypoxia and they do not have evidence on the

MRI that there are watershed areas of the brain that are affected. What appears on

the MRI is that the deep brain matter was affected.

[69] In her minutes she said “abruption placenta with brad needs to be delivered within

30 minutes to prevent hypoxia”. She said she took 30 minutes as a guideline but

5 Benjamin Y Huang Hypoxic – Ischemic Brain Injury: Imaging Findings from Birth to Adulthood

36

subsequently the SA guideline is to deliver within 75 minutes. She said abruptio

placenta with bradycardia needs to be delivered before abruptio placenta without

bradycardia which needs to be delivered in 60 minutes if you have a live baby. She

said they do not know whether the abruptio led to a bradycardia and admitted that

she is speculating that it was severe bradycardia which explains why they did not

see a foetal heart. She clarified her earlier testimony that all contractions last not for

60 seconds but between 20 and 60 seconds. It was put to her that during

contractions there was ongoing hypoxic insults. She said that is speculation as

there is no FH rate. There are labours with even 3% insufficient placenta or with

placental insufficiency where they induce and they do not have an effect so it is not

an all or nothing. So even if there is placental insufficiency, you could have a baby

that is fine.

[70] Prof Adam was questioned whether there is any literature and protocol that

suggests that the damage to the foetus brain happens only during the period of the

acute abruption. She referred to the article by Tolcher et al6, Decision to Incision

Time and Neonatal Outcomes where 33 cases of placental abruption were

evaluated and showed a statistically lower rate of poor neonatal outcomes with

shorter decision to delivery intervals. “That the findings in the METO analysis of

worsening foetal status within 30 minutes are confounded and that in the clinical

situations including …placenta abruption… which result in acute hypoxia because of

lack of foetus perfusions expeditions’ delivery is clearly advantageous”. The result is

that babies born after 30 minutes do better which is an indication of the severity.

She agreed that the quicker you can deliver a baby in the case of an abruptio the

better the chances are that they are going to prevent a bradycardia or the duration

of the bradycardia but you would not do that if you have an unstable mother as the

mother has to be resuscitated before you go to theatre.

6 M.C Tolcher, R.L Johnson, S.A EI – Nashar and C.P West Decision to Incision Time and Neonatal Outcomes

37

[71] Professor Allan Cooper is a paediatric neonatologist. A paediatric neonatologist is a

paediatrician who subspecialised in neonatology, that is new born medicine. He is

presently an emeritus professor at the School of Clinical Medicine Facility of Health

Sciences at the University of Witwatersrand. He was practicing as a neonatologist

prior to 1992. He is an International Paediatric Association representative on the

board of the Partnership for Maternal New-born and Child Health. He is also a

member of the National Perinatal Morbidity and Mortality Committee from 2008 to

2010, which committee looked at mothers who died with pregnancy related

complications and examined the date and makes recommendations. Prof Cooper

wrote several articles and journals which were published. In one article which he co-

authored it was a study dealing with Apgar scores and asphyxia results and

proposals for clinical grading. They considered whether there were factors in the

early neonatal period that might predict whether the baby showed signs of neonatal

encephalopathy and subsequent brain damage. He was Head of the neonatal

division at Chris Hani Baragwanath hospital for eight years and also continued to

practice as a neonatologist. He has extensive experience of asphyxiated babies.

[72] Prof Cooper did not examine G[…] and relied on hospital records and medical

reports. He said plaintiff’s BMI was 38.5 which is classified as ‘grossly obese’. He

said a normal heart rate for the foetus is between 110 and 160 and at 3:30 on 16

October 2010, the foetal heart rate was 148 per minute. A bradycardia is less than

110 per minute. Plaintiff’s blood pressure of 63/54 at 4:00 was extremely low which

could compromise the foetus severely and therefore the management as far as the

foetus is concerned is to resuscitate the mother. He said “there was a lot of blood at

4:00 and there was obviously some bleeding into the amniotic cavity as well as in

addition to the retro placental clot, it added up to a large amount of bleeding”.

[73] G[…] was delivered at 11:20. His Apgar were 6 and 10 at one and five minutes. The

score of 6 is an intermediate score which does not reflect or suggest severe

preceding hypoxia and the fact that the Apgar score was 10 at five minutes is a

38

perfect score which indicates that G[…] responded to oxygen and suction extremely

well. This is telling that G[…]’s condition at that stage was not reflective of a severe

hypoxic ischemic even within the preceding hour. He referred to the article by

Pasternak supra which has a table listing 11 babies with amongst others, uterine

rupture. In the first minute, the Apgar scores for 5 babies were two 1 and three 0,

which is technically stillbirths. These babies would have required extensive

resuscitation. If the heart rate is less than 60, they would commence with

ventilation, cardiac massage. Most of the babies required extensive ventilatory

support. This is evidenced by the ten minutes Apgar score where the highest score

is 7. The majority are 4 and 5. Most still required assisted ventilation. He said that is

what one would expect in a preceding severe acute hypoxic ischemic episode. He

said when looking at the notes, if correct, there was no obvious sign of neurological

abnormality but subsequently there were and this is in keeping with an insult that

occurred several hours earlier rather than an hour to delivery. The neurological

symptoms are a baby that is not active, with poor tone. They test certain reflexes,

primitive reflex for example a grasp reflex, a more reflex and the sucking reflex.

Sucking is very important because it requires a certain integrity of the nervous

system and the development of convulsions is very common.

[74] He said G[…]’s weight was 3.6 grams which is above the average weight of 3.25 –

3.33 grams. In in his report, he stated that “abnormalities noted on the First

Examinations Tick List were that his colour was blue, the respiratory rate was slow,

less than 40/ minutes and he had a hoarse cry. It was stated that he responded well

after resuscitation”. He said less than 30 is a slow respiratory rate and he wasn’t

sure why they noted it as slow. He said the admission diagnosis was Respiratory

Distress Syndrome (RDS). He said this was also surprising because the main

symptom with RDS is a rapid respiratory rate above 60 and recession of the chest

wall and central cyanosis and a grunting noise on expiration. There are two possible

causes for RDS, namely either transient tachypnoea or congenital pneumonia.

39

There was a recording that G[…] had seizures when he was 9 days old. After an

asphyxia insult one would need to know when the seizures started.

[75] Prof Cooper said an acute profound hypoxic ischemic event is where there is near

total asphyxia that comes on very rapidly or usually without much in the way of prior

warning or precipitated by central event. He said an acute profound event may also

follow prolonged partial asphyxia. With the prolonged partial event, the basal

ganglia which is the deep grey matter is preserved and the watershed areas which

is the cortical area, the white matter is affected. When there is an acute profound

event, the brain is unable to preserve blood flow to the deep grey matter or the

basal ganglia and those are the ones that gets preferentially affected and can be

differentiated on the MRI scan even years later