Johannesburg - A high court ruling that found that there was no causal link between the Tembisa Hospital’s neglect of a mother in labour and her newborn’s brain damage is being challenged in the Constitutional Court.
Counsel for Vivian Modianang, whose son Victor was born brain damaged in 2009, have said in court papers that the high court ruling had the potential to deny compensation to children harmed at hospitals during birth.
Modianang dragged the Gauteng Health Department to the South Gauteng High Court, Johannesburg, in 2017 on grounds that staff at the hospital had caused her son to be born brain damaged.
The negligence in this matter, which the department conceded, was that the nurses and midwives had failed to monitor the foetus while Modianang was admitted for labour.
Expert evidence that Modianang deposed in the high court secured her victory in the first round. This evidence, from doctors, proved that the child developed brain complications between 3.15am and 4.45am, during which time Modianang was not monitored.
Monitoring the foetal heart rate would have resulted in a timely decision to conduct a Caesarean section and save the boy from brain damage, Modianang’s lawyers submitted.
The department then appealed the case before a full Bench of the same court.
It found that while it was proven that the Tembisa Hospital staff had neglected Modianang, it could not be concluded that the negligence caused her baby’s brain damage.
The full Bench ruled that: “It is undisputed that the defendant was negligent. It is also accepted that an acute profound hypoxic event took place between 3.15am and 4.45am.
“When a determination was made at 4.45 to perform a Caesarean section, on the evidence, there was insufficient time to carry it out.
“By parity of reasoning, the plaintiff in our view has failed to show that the negligent conduct, which has been isolated as lack of sufficient monitoring, had a causal effect on the neurological sequelae.”
Steven Budlender SC and Emma Webber, Modianang’s counsel, submitted in the heads of argument filed in the apex court that the high court ruling set an untenable precedent.
“If the restrictive, binding rule imposed by the full Bench is adopted, a number of mothers and children will be denied compensation for the harm that they have suffered as a result of receiving substandard care before and during birth,” they said.
Budlender and Webber maintained that the full Bench erred in finding that factual causation was not established.
“The merits of the matter clearly favour Ms Modianang. The unchallenged expert evidence before the trial court states that, had proper monitoring been conducted, the medical staff would probably have detected that the foetus was in distress, instituted emergency measures to ‘buy time’ for the foetus and conducted an emergency Caesarean section earlier in the night.
“Had they done so, the harm to Victor would probably have been avoided or mitigated. As such, factual causation was established.”
The department stood its ground that there was no causal link between the negligence and the boy’s brain damage.
“Even if the foetal heart rate (FHR) was monitored at 3.45am and 4.15am, could hospital staff have taken measures that would have prevented or minimised the brain injury?” its counsel, Timothy Bruinders SC and A Mofokeng, asked in their heads of argument.
“The failure – to monitor the FHR at 3.45am and 4.15am on the morning of April 4 2009 – was not the cause of the acute profound insult.
“The plaintiff’s neonatologist said that the cause of the insult was a sudden, unpredictable, unidentified sentinel event,” they submitted.
The matter will be heard on August 17.
The Star