THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 502/2021

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH, LIMPOPO PROVINCIAL GOVERNMENT
APPELLANT

and

L W MOKGOTHO obo D MOKGOTHO
RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH, EASTERN CAPE
AMICUS CURIAE

Neutral Citation:
MEC for Health, Limpopo v L W M obo D M (502/2021)
[2022] ZASCA 146 (27 October 2022)
Coram:
VAN DER MERWE, MOLEMELA and GORVEN JJA, and
DAFFUE and SALIE-HLOPHE AJJA
Heard:

18 August 2022
Delivered:
27 October 2022
Summary: Delict – Medical negligence – failure to monitor the appellant and
foetus during labour – whether hospital staff was negligent – whether
negligence causally connected to the child’s brain damage – negligence and
causation established – appeal dismissed.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Swanepoel AJ,
sitting as court of first instance):

The appeal is dismissed with costs, including the costs occasioned by the
employment of two counsel.

______________________________________________________________

JUDGMENT
______________________________________________________________

Molemela JA (van der Merwe and Gorven JJA and Daffue and Salie-
Hlophe AJJA concurring):

Introduction
[1] This appeal concerns a medical negligence claim in terms of which a
mother (the respondent), acting on behalf of her minor child (D M), claimed
damages in the Gauteng Division of the High Court, Pretoria (the high court)
arising from the brain injury which D M suffered during the birth process at
Dilokong Hospital (the hospital) in Limpopo Province. The claim was lodged
against the Member of the Executive Council for Health, Limpopo Province (the
appellant), who would be vicariously liable for damages caused by the negligent
conduct of the hospital staff.

Background facts
[2] The facts of the case are substantially undisputed and are fully set out
in the judgment of the high court. Briefly, they are as follows. The respondent
was admitted at the hospital in the early hours of 17 July 2010. She was in the
early stages of labour. On examination in the labour ward at 03h50, she was
assessed as being nine months pregnant by date and 38 weeks by palpitation.

Everything appeared to be normal. There are two phases of labour: the latent
phase progressing to the active phase. The active phase has two stages, with
the first stage beginning when the cervix of the woman in labour reaches a
dilation of 4cm and the second phase starting when the cervical dilation is
10cm. An examination at 14h00 revealed that she was still in the latent phase
of labour with no risk factors having been noted. Her vital signs were noted as
normal, as were those of the foetus. The examination that was done at 18h00
revealed that the dilation of her cervix was 4cm; thus, she had entered the
active first stage of labour. Labour progressed normally.

[3] Some concerns relating to the slow progression of labour were noted in
the partogram at 00h00. The partogram is a form that must be completed by
midwives to record foetal and maternal information and to graphically reflect the
progress of labour. The National Guidelines for Maternity Care published in
20071 (maternity guidelines) list ‘poor progress in the active phase of labour
(crossing partogram action line)’ and ‘thick meconium staining of the liquor’
among the list of labour-related problems. The entry made in the partogram at
01h20 on 18 July 2010 showed that the respondent’s progress had slowed
down. The graphic presentation in the partogram showed that the action line
had been crossed. The plan was to notify the doctor about the respondent’s
condition. The notes reflect that the doctor was summoned at 01h30 and he
undertook to attend to the respondent. I pause here to mention that in terms of
the maternity guidelines, if the cervix of the woman in labour has reached 10cm
dilation, then the delivery must be expedited by using forceps. However, where
the cervical dilation has not yet reached 10cm, then preparations for a
caesarean section must be made.

[4] The respondent’s examination at 01h50 revealed that the amniotic sac
membranes had ruptured, and meconium-stained liquor, grade 2, was
observed. She was fully dilated and was thus in the second stage of active
labour. At 02h00, the attending midwife again summoned the doctor who was
on call. The clinical notes recorded that the doctor promised to attend. It further

1 Department of Health RSA Guidelines for Maternity Care in South Africa 3 ed (2007).

recorded that the plan was to monitor the foetal and maternal condition. The
note made at 02h00 was the last entry made in the clinical notes. There is no
indication of any monitoring whatsoever having taken place between 02h00 and
the delivery of the baby at 03h35. Despite it being common cause that D M was
born at 03h35, the partogram inexplicably reflects an entry purporting to show
the position of the foetal head (in utero) at 04h00.

[5] The clinical notes pertaining to D M’s birth recorded that her 1-minute
Apgar score was 5/10.2 Her score for the heart rate was 2, while she scored 0
for respiration and muscle tone. Her score for response to stimulation was 1
and she scored 2 for colour. A second Apgar assessment was done 5 minutes
after D M’s birth; she scored 7/10, again the score for heart rate was 2. At that
stage, her breathing had improved somewhat, and she had a better muscle
tone. The neonate assessment form shows that D M had a slow respiration
rate, a weak Moro reflex,3 and an absent grasp reflex and ‘cry’. She had to be
resuscitated. Her blood glucose was high.

[6] Later observations noted that D M had suffered seizures. Her ‘cry’ was
still not audible, and at 13h10 on 20 July 2010 a doctor noted the presence of
hypertonia4 and the absence of Moro reflex; in addition, D M’s muscle tone was
described as ‘floppy’. A diagnosis of hypoxic-ischaemic encephalopathy (HIE)
was recorded. Ischaemia is defined as a ‘deficiency of blood in a body part due
to functional construction or actual obstruction of a blood vessel’. Hypoxia
results from a sustained reduction in the supply of oxygen to the brain. It is

2 APGAR stands for Appearance, Pulse, Grimace, Activity and Respiration. In the Apgar test,
five factors are used to check a newborn baby’s health. Each is scored on a scale of 0 to 2,
with 2 being the best score. For Appearance the skin colour is checked; for Pulse, heart rate;
for Grimace, reflexes; for Activity, muscle tone; and for Respiration, breathing rate and effort.
The individual scores for the five factors are added up to obtain a score out of ten. The highest
score to be achieved is 10 and scores of 7, 8 or 9 out of 10 are normal or good scores. Source:
kidshealth.org.
3 The Moro reflex is an infantile reflex that, inter alia, entails the infant’s spreading of the arms
in response to a sudden loss of support. In W B Saunders Co’s Dorland’s Illustrated Medical
Dictionary 25 ed (1974), Moro reflex is described as follows: ‘[O]n placing an infant on a table
and then forcibly striking the table on either side of the child, the arms are suddenly thrown out
in an embrace attitude; called also startle r[eflex]’.
4 W B Saunders Co’s Dorland’s Illustrated Medical Dictionary 25 ed (1974) defines ‘hypertonia’
as ‘increased resistance of muscle to passive stretching’.

common cause that D M developed severe asymmetrical mixed-type cerebral
palsy,5 predominantly dystonic.

[7] It was on that basis that the respondent claimed damages from the
appellant. In her particulars of claim, the respondent asserted, inter alia, that
the appellant had failed to ensure that a suitably qualified medical practitioner
attended to the respondent at all material times of her labour; failed to take
required steps to ensure proper, timeous and professional assessment,
monitoring and management of patients; and failed to take steps to prevent the
occurrence of complications when this could have been done by exercising
reasonable care and diligence. Furthermore, it was averred, inter alia, that the
hospital staff had failed to perform accurate and proper cardiotocographic6
(CTG) tracings of the foetal heart rate; failed to record an accurate partogram;
failed to monitor the foetal heart rate with sufficient frequency; and failed to
detect that D M was in foetal distress.

[8] The appellant’s plea amounted to a bare denial, as the appellant had
denied every aspect of negligence which the respondent had alleged in the
particulars of claim, without stating material facts upon which she was relying.
The pre-trial minutes identified the issues for determination as negligence and
causation and indicated that the parties agreed to separate the issues of liability
and quantum. The trial commenced in February 2021.

[9] The only evidence adduced before the high court was that of experts.
The expert witnesses who testified formulated their opinions based on the
respondent’s medical records, her antenatal card, the partogram, the neonatal
records, as well as the magnetic resonance imaging (MRI) scan performed on
4 February 2015. The MRI features were considered as diagnostic of an acute
profound (central) hypoxic ischaemic injury. The diagnosis was later changed

5 The American College of Obstetrics and Gynaecology (ACOG) defines neonatal
encephalopathy as a clinically defined syndrome of disturbed neurological function in the
earliest days of life of an infant born after 35 weeks of gestation manifested by a subnormal
level of consciousness or seizures and often accompanied by difficulty with initiating and
maintaining respiration and depression of tone and reflexes.
6 A cardiotocograph monitors the foetal heartbeat and the contractions of the uterus.

to central perirolandic, basal ganglia and thalamic hypoxic ischaemic injury
(PBGT).

[10] The respondent adduced the evidence of two experts, namely Dr
Murray, an obstetrician and gynaecologist, and Prof Smith, a neonatologist. The
appellant adduced the evidence of only one expert, namely Prof Cooper, a
neonatologist. The appellant’s gynaecologist and obstetrician, Prof Lombaard,
signed a joint minute of experts with Dr Murray, but did not testify during the
trial.

[11] In its judgment, the high court outlined the issues for determination as
follows:
‘[8]
It is not in dispute that [the appellant] had a duty of care to ensure that [the
respondent] received proper medical care and that [the appellant] is vicariously liable
for the acts or omissions of the hospital staff. It is also not in dispute that [the
respondent] received substandard care. There is no evidence that she was monitored
at all from 02h00 onwards, at a time when the protocols require constant monitoring of
the mother and foetus. [The appellant] accepts that the nursing staff were negligent.
[9] The sole question for determination is whether negligent omission resulted in
the hypoxic ischaemic injury and whether, with proper care, the injury could have been
prevented.’

[12] Having analysed the evidence of all the witnesses, the high court found
that the omission of the hospital staff to properly monitor the respondent’s
labour, their failure to recognise foetal distress and the consequent failure to
take urgent steps to deliver D M caused the brain injury that led to D M’s
cerebral palsy. It was common cause that D M’s brain injury affected the basal
ganglia-thalamic (BGT) structures of her brain. This pattern of injury is ordinarily
associated with an acute profound insult. However, in determining causation,
the high court accepted Prof Smith’s evidence that subacute or subthreshold
intermittent hypoxic events that built up over an extended period could cause
and had caused an acute-profound type injury to the BGT structures of the
brain, that is, in the absence of a sentinel event. The high court therefore

concluded that the appellant was liable to the respondent for delictual damages.
This appeal is with the leave of the high court.

[13] It bears mentioning that some months prior to the appeal hearing, the
MEC for Health, Eastern Cape applied to the President of the Supreme Court
of Appeal for leave to be admitted as an amicus curiae (amicus) in the appeal
proceedings. On 7 March 2022, the Deputy President of the Supreme Court of
Appeal granted an order admitting the MEC for Health, Eastern Cape as amicus
and simultaneously issued directions pertaining to the filing of the heads of
argument and related matters.

[14] Following the granting of that order, the amicus brought an application
for leave to adduce further evidence on appeal. The respondent opposed the
application. The application to adduce new evidence was heard prior to the
commencement of the appeal hearing. Having heard the oral submissions of
counsel, the application was dismissed with costs, including the costs
occasioned by the employment of two counsel. The court indicated that reasons
for that order would be furnished in due course. It would be prudent to furnish
those reasons at the end of this judgment, as the considerations which informed
our decision to dismiss the application were informed by the analysis of expert
evidence and the authorities discussed in the succeeding parts of this
judgment. Suffice it to mention that the amicus was granted leave to make oral
submissions for a maximum of 30 minutes, limited strictly to new submissions
not dealt with by the appellant’s counsel.

[15] The element of wrongfulness was admitted in the parties’ pre-trial
minutes. The only elements of delictual liability that remained as issues to be
determined at the commencement of the trial were negligence and causation.
It is to these two elements of delict that I now focus my attention.

Evaluation of expert evidence
[16] Since reliance was placed exclusively on expert evidence, it is necessary
to preface my discussion on the delictual elements of negligence and causation

with an outline of the legal principles applicable to the evaluation of expert
evidence.

[17] The functions of an expert witness were explained by this Court as
follows in McGregor and another v MEC Health, Western Cape:7
‘. . . The functions of an expert witness are threefold. First, where they have themselves
observed relevant facts that evidence will be evidence of fact and [be] admissible as
such. Second, they provide the court with abstract or general knowledge concerning
their discipline that is necessary to enable the court to understand the issues arising
in the litigation. This includes evidence of the current state of knowledge and generally
accepted practice in the field in question. Although such evidence can only be given
by an expert qualified in the relevant field, it remains, at the end of the day, essentially
evidence of fact on which the court will have to make factual findings. It is necessary
to enable the court to assess the validity of opinions that they express. Third, they give
evidence concerning their own inferences and opinions on the issues in the case and
the grounds for drawing those inferences and expressing those conclusions.’

[18] Endorsing the approach followed by the House of Lords in Bolitho v City
and Hackney Health Authority,8 this Court in Michael and Another v Linksfield
Park Clinic (Pty) Ltd and Another9 (Linksfield) cautioned that a court is not
bound to absolve a defendant from liability for negligent medical treatment or
diagnosis simply because expert opinion evidence is that the treatment or
diagnosis was in accordance with sound medical practice. It laid down that what
is required in that evaluation is to determine whether the opinions advanced by
the experts are founded on logical reasoning.10

Negligence
[19] As is apparent from para 11 above, the appellant conceded in the high
court that the hospital staff had been negligent and concentrated on the issue

7 A M and another v MEC for Health, Western Cape [2020] ZASCA 89; 2021 (3) SA 337 (SCA)
para 17.
8 Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 46; [1997] 4 All ER
771; [1997] 3 WLR 1151 at 241-242. Also see Daubert et al v Merrell Dow Pharmaceuticals
Inc [1993] USSC 99; 509 US 579 (1993).
9 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another [2001] ZASCA 12; 2001
(3) SA 1188 (SCA); [2002] 1 All SA 384 (SCA) para 36.
10 Linksfield para 37.

of factual causation. The appellant took the same stance in this Court. For the
reasons briefly set out below, the concession that negligence on the part of the
hospital staff had been proved was fully justified. The test for establishing
negligence is trite;11 it rests on two bases, namely, reasonable foreseeability
and the
reasonable
preventability
of damage
and failure
to
act
accordingly. What is or is not reasonably foreseeable in a particular case is a
fact-bound enquiry.12

[20] The standards that were applicable in clinics, community health centres
and district hospitals in South Africa at the time of D M’s birth were those
specified in the maternity guidelines, which emphasise the necessity to monitor
a woman in labour. They set out the monitoring that is considered appropriate.
It is clear from the maternity guidelines that certain steps need to be taken when
labour is prolonged. These steps include frequent monitoring, especially to
enable the hospital staff to identify foetal distress.

[21] Dr Murray opined that the second stage of labour is the most critical time
for a foetus, as it is during this time that contractions occur most frequently and
are strongest. Although the maternity guidelines stipulate that progress which
has crossed the action line and the presence of thick meconium are indications
for CTG monitoring, there is no evidence of CTG monitoring having been done
during the respondent’s labour despite the presence of grade 2 meconium-
stained liquor and slow progress of labour. Dr Murray testified that the foetal
condition was ‘severely inadequately monitored’ during the last 95 minutes of
the respondent’s labour. In the joint minute, Prof Lombaard agreed with this
statement.

[22] Inexplicably, the partogram completed by the nurse bore a mark
purporting to show the foetal head position in utero at 04h00 despite D M having
been delivered at 03h35. Remarking on that glaring error, the appellant’s own
counsel stated that the 04h00 entry made in the partogram places a question

11 Kruger v Coetzee 1966 (2) SA 428 (A); [1966] 2 All SA 490 (A).
12 Pitzer v Eskom [2012] ZASCA 44 (SCA) para 24.

mark on the truthfulness of its contents. Surprisingly, the nurse who attended
to the appellant was not called to testify despite counsel having undertaken to
do so. There remains no explanation for the wrong entry in the partogram and
the failure to make clinical notes at a critical time when the only intervention to
avoid harm was, in terms of the maternity guidelines, to deliver the baby as
soon as possible.

[23] All things considered, there can be no doubt that reasonable nurses and
doctors in the position of the attending hospital staff would have monitored the
respondent and the foetus more closely. Notably, it was not the appellant’s case
that the hospital experienced a shortage of staff on the night in question or that
it did not have the necessary equipment to expedite D M’s delivery. The
concessions regarding negligence, made by counsel during cross-
examination,13 in the heads of argument and during oral argument, were
therefore rightly made.

Causation
[24] It is well-established that causation has two elements, namely: (i) factual
causation, determined by applying the ‘but for’ test; and (ii) legal causation,
which answers the question of whether the wrongful act is linked sufficiently
closely to the harm suffered; if the harm is too remote, then there is no liability.14
In Za v Smith and Another,15 Brand JA described the applicable test as follows:
‘The criterion applied by the court a quo for determining factual causation was the well-
known but-for test as formulated, eg by Corbett CJ in International Shipping Co (Pty)
Ltd v Bentley 1990 (1) SA 680 (A) at 700E-H. What it essentially lays down is the

13 While cross-examining Dr Murray, counsel for the appellant prefaced one of the questions
as follows: ‘The infrequent monitoring during this time must also be accepted, especially
bearing in mind that there was a meconium staining thicker and slow progress. Meaning more
foetal surveillance was required by way of CTG because of the increased risk of foetal distress’.
Counsel went on to say the following: ‘Then [Prof Lombaard] said, secondly the foetal heart
rate should be monitored every second contraction and that further foetal heart rate was only
monitored every 30 minutes. Well, we know according to the guidelines that it is not an
appropriate monitoring that deviates from the standard. . . . I do not think that we have difficulty
to say, well that . . . in itself is method to conduct, not necessarily [causally] connected to the
outcome of the baby but that in itself was negligent’.
14 International Shipping Company (Pty) Ltd v Bentley [1990] 1 All SA 498 (A); 1990 (1) SA 680
(A) at 700E-I.
15 Za v Smith and Another [2015] ZASCA 75; 2015 (4) SA 574 (SCA); [2015] 3 All SA 288 (SCA)
para 30.

enquiry – in the case of an omission – as to whether, but for the defendant’s wrongful
and negligent failure to take reasonable steps, the plaintiff’s loss would not have
ensued. In this regard this court has said on more than one occasion that the
application of the “but-for test” is not based on mathematics, pure science or
philosophy. It is a matter of common sense, based on the practical way in which the
minds of ordinary people work, against the background of everyday-life experiences.
In applying this common sense, practical test, a plaintiff therefore has to establish that
it is more likely than not that, but for the defendant’s wrongful and negligent conduct,
his or her harm would not have ensued. The plaintiff is not required to establish this
causal link with certainty (see eg Minister of Safety & Security v Van
Duivenboden 2002 (6) SA 431 (SCA) para 25; Minister of Finance v Gore NO [2006]
ZASCA 98; 2007 (1) SA 111 (SCA) para 33. See also Lee v Minister of Correctional
Services [2012] ZASCA 30; 2013 (2) SA 144 (CC) para 41.).’ (Own emphasis.)

[25] Applying the test set out above to the facts of this case, the crisp question
is: is it more likely than not that, but for the wrongful and negligent conduct of
the appellant’s employees, D M would not have suffered a brain injury during
the birth process, as a result of hypoxic ischemia?16 The high court found in the
affirmative. The high court relied on the evidence of Prof Smith and an article
that he co-authored, which was based on a case-study.17 The study was in
respect of 10 cerebral palsy survivors who sustained intrapartum hypoxic
ischaemic basal ganglia-thalamic (BGT) pattern injury in the absence of an
obstetric sentinel event. In respect of all 10 patients there was evidence of foetal
distress consisting of pathological or suspicious CTG prior to delivery, and the
median time interval between the first pathological CTG and delivery of the
infant was 179 minutes. Prof Smith’s article concluded that in the absence of a
perinatal sentinel event, subacute or subthreshold prolonged or intermittent
intrapartum hypoxic ischaemia may cause a BGT pattern brain injury but that
warning signs in the form of non-reassuring foetal status, would be detectable

16 Ischaemia is a restriction in blood supply. Blood supplies oxygen to the brain. A continued
restriction in blood supply leads to a lack of oxygen supply. Where this takes place, bradycardia
occurs. This is a slowing of the foetal heart rate. Hypoxia results from a sustained reduction in
the supply of oxygen to the brain. The resulting injury to the newborn baby is described as
hypoxic-ischaemic encephalopathy. This is a form of neurological dysfunction that leads to the
development of cerebral palsy.
17 J Smith et al ‘Intrapartum Basal Ganglia-Thalamic Pattern Injury and Radiologically Termed
“Acute Profound Hypoxic-Ischemic Brain Injury” Are Not Synonymous’ (2020) American Journal
of Perinatology.

by means of cardiotocograph or auscultation monitoring up to a few hours
before delivery.

[26] The primary thrust of the appellant’s attack on the judgment of the high
court was its acceptance of Prof Smith’s evidence pertaining to the mechanism
of the brain injury suffered by D M. The appellant contended that the high court
erroneously accepted the validity of Prof Smith’s theory, published in a 2020
medical journal even though his theory was in its developmental stage and thus
unsupported, was not compelling and ran contrary to the ‘traditional view’ that
a BGT pattern (grey matter injury) is associated with an acute profound hypoxic
ischaemic event. The theory posited in that article had already been rejected
by this Court in A N (obo E N) v MEC for Health, Eastern Cape18 (A N v MEC),
so it was argued. The appellant laid great emphasis on the fact that the
generally accepted view supported by literature was that acute profound insults
happen because of sentinel events and occur suddenly and without warning,
and therefore could not be averted.

[27] The appellant contended that the respondent’s experts had applied
reverse reasoning and had ventured beyond the proven facts in order to apply
the theory propounded by Prof Smith. Furthermore, it was contended that even
if Prof Smith’s article were to be regarded as authoritative, there was no
evidence showing that the foetus was in a compromised state for a prolonged
time prior to delivery, which is a fact that is necessary for the application of Prof
Smith’s theory.

[28] The central question in this appeal is whether on the facts set out in the
preceding paragraphs, Prof Smith’s opinion was founded on logical reasoning.
This includes an assessment of whether the reasoning or methodology
underlying his testimony is scientifically valid and whether that reasoning or
methodology can be applied to the facts in issue.19 It is about the cogency of
the underlying reasoning which lead the experts to their conflicting opinions.20

18 A N (obo E N) v MEC for Health, Eastern Cape [2019] ZASCA 102; [2019] 4 All SA 1 (SCA).
19 Daubert et al v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993) at 592.
20 S v Rohde [2021] ZASCA 134; 2021 (2) SACR 565 (SCA) para 70.

If the expert’s opinion is logical and can reasonably be held on those facts and
his chain of reasoning, then the threshold will be satisfied even though his is
not the only opinion that can be expressed on those facts.21

[29] The appellant levelled considerable criticism at Prof Smith’s testimony
and contended that his evidence and the article that he relied on ought to be
rejected. I disagree. There is nothing illogical about Prof Smith’s opinion. It was
not and could not be disputed that Prof Smith and his colleagues had identified
10 cases of patients with BGT pattern injuries (with no sentinel events and no
fixed terminal bradycardia22), where proper monitoring demonstrated that the
babies had commenced displaying foetal distress at a median of about three
hours before delivery. Thus, it was uncontroverted that such cases are possible
and the only real remaining question on the merits is whether this probably was
such a case. I nevertheless deal with the criticisms levelled against the article
and Prof Smith’s evidence in respect thereof.

[30] The appellant described Prof Smith’s opinion as ‘shaky’ and ‘unreliable’.
Notably, the appellant did not call an expert to challenge the reliability of Prof
Smith’s opinion during the trial. In his testimony, Prof Smith expressed the same
opinion he expressed in the article he co-authored, which was peer-reviewed
prior to its publication. Prof Cooper did not challenge the validity of Prof Smith’s
hypothesis based on animal studies and merely opined in the joint minute that
it had been published online and not in print. According to him, it is only when
the article was in print that peer review would take place. In his testimony, Prof
Smith denied that his article had not been peer-reviewed and explained that
Prof Cooper had confused post-publication with peer review. Thereafter, no
further cross-examination was pursued on this aspect.

21 Imperial Marine Company v Motor Vessel Pasquale della Gatta and Another; Imperial Marine
Company v Motor Vessel Filippo Lembo and Another [2011] ZASCA 131; 2012 (1) SA
58 (SCA); [2012] 1 All SA 491 (SCA) para 26.
22 The normal foetal heart rate ranges between 120 and 160 beats per minute. In her medico-
legal report, Dr Murray said: ‘For infants, bradycardia is defined as a heart rate of less than 110
beats per minute’.

[31] It bears noting that it was not disputed that the online journal in which
the article was published is reputable. The article was based on information
from textbooks and articles, as well as the personal experiences of, and
investigations conducted by Prof Smith and of the other experts who
co-authored the article. It was also based on experiments on animal models
and data obtained from a case-study relating to human foetuses by others, or
information from textbooks. As correctly pointed out by the high court, Prof
Cooper is one of Prof Smith’s peers. If he had any qualms about the study, its
methodology, the data, or its interpretation, he should have raised those
concerns. He failed to engage with the validity of Prof Smith’s methodology. In
my view, the opinion propounded by Prof Smith is founded on logical reasoning,
survives scrutiny and is foursquare in accordance with the Linksfield principle.

[32] Although the appellant criticised Prof Smith’s expert opinion regarding
the mechanism of the insult and his reliance on the case-study involving 10
cases, the appellant could not point to any contrary literature. None of the
articles submitted by the appellant ruled out the theory that intermittent
episodes of hypoxia can culminate in an injury of an acute profound type as
propounded by Prof Smith.

[33] In an attempt to discredit Prof Smith’s case-study and its findings, the
respondent relied, inter alia, on a study conducted by Okumura et al,23 which
determined that, in some cases, the origin of the foetal bradycardia could not
be determined despite the labour being monitored. But this article obviously did
not contradict that the research of Prof Smith et al had uncovered the aforesaid
10 cases. And it bears emphasising that the Rennie and Rosenbloom article24
relied upon by the appellant was based on brain injuries consequent on the
occurrence of sentinel events; in this matter, the joint minute of experts
acknowledged that there was no evidence that a sentinel event had occurred.

23 A Okumura, F Hayakawa, T Kato, K Kuno & K Watanabe ‘Bilateral basal ganglia-thalamic
lesions subsequent to prolonged fetal bradycardia’ (2000) 58 Early Human Development 111.
24 J Rennie & L Rosenbloom ‘How long have we got to get the baby out? A review of the effects
of acute and profound intrapartum hypoxia and ischaemia’ (2011) The Obstetrician &
Gynaecologist 13(03): 169-174.

[34] Insofar as the size of Prof Smith’s case-study was criticised as too small
on account of having analysed 10 cases, this criticism is unjustifiable. It is worth
noting that the Pasternak study25 relied upon by the appellant was based on 11
patients. To my mind, Prof Smith’s explanation for relying on only 10 cases is
plausible. He pointed out that the antepartum and maternal and neonatal
characteristics of the 10 cases were retrospectively analysed. The 10 cases
were not hand-picked, as alleged by the appellant; rather, the study was based
on actual cases where the injury sustained was of the acute profound type,
where there was no sentinel event and where the foetal heart rate had been
properly monitored.

[35] The fact of the matter is that the appellant did not submit scientific data
or evidence ruling out the reliability of Prof Smith’s expert opinion. Moreover,
the trial court was not provided with any article which served to refute the
observations made in his case-study. The insurmountable difficulty for the
appellant is that it failed to call an expert who could engage with and challenge
the reliability of Prof Smith’s theory.26 That being the case, counsel’s
submission that Prof Smith’s approach was not the medical norm does not
serve to refute Prof Smith’s uncontested evidence, at the level of factual
probability.27

[36] Furthermore, a lack of general acceptance of his theory cannot, without
more, warrant a rejection of his theory,28 as it is backed up by a case-study.
Clearly, there is no basis in law for rejecting Prof Smith’s theory. The 10 cases
on
their
own
demonstrate
that
a
series
of
partial
intermittent,
subacute/subthreshold hypoxic insults can cause an injury to the BGT deep
nuclear structures including the perirolandic area with a pattern like that
revealed by D M’s MRI scan. Moreover, Prof Smith’s conclusions were not
based exclusively on animal experiments. It was also based on his experience

25 J F Pasternak & M T Gorey ‘The Syndrome of Acute Near-Total Intrauterine Asphyxia in the
Term Infant’ (1998) Pediatric Neurology 18(05): 391-398.
26 Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape [2015]
ZACC 33; 2016 (1) SA 325 (CC); 2015 (12) BCLR 1471 (CC) paras 39-40.
27 Ibid.
28 Linksfield para 37.

and that of his co-authors over many years, involving human cases. His views
find material support in Volpe’s textbook,29 where the following is stated in
relation to the injuries arising from an insult to the deep nuclear-brain stem, in
which the insult is severe and abrupt:
‘In the more prolonged and less severe insults, the diversion of blood to deep nuclear
structures occurs at least to a degree, and thus the cerebral regions are more likely to
be affected. Studies in the near-term fetal lamb indicate that the severe terminal insult
that results in injury to deep nuclear structures especially may be likely to occur after
brief, repeated hypoxic-ischaemic insults first cause a cumulative deleterious effect on
cardiovascular function that presumably then can result in a severe late insult.’

[37] The appellant must accept her counsel’s choices regarding the expert
evidence that was adduced on her behalf and the failure to call an expert that
could challenge Prof Smith’s theory. In this regard, I align myself with the
following remarks made by the high court in its judgment:
‘[67]
There is no substantive evidence from [the appellant] to refute Prof. Smith’s
version. I would have expected [the appellant] to put up some evidence as to the cause
of the injury. I say so in the full understanding that [the appellant] does not bear an
onus of proof. However, when [the respondent] presents a well-reasoned opinion, one
would expect [the appellant] to put up some version of its own. [The appellant] did not
even put up a version during cross-examination. I therefore accept Prof. Smith’s
evidence, that a series of partial intermittent, subacute/subthreshold hypoxic insults
may result in this type of injury to the BGT deep nuclear structures including the
perirolandic area.’
From my point of view, this finding of the high court is unassailable.

[38] Having considered the conspectus of the evidence, I am satisfied that
the high court’s acceptance of Prof Smith’s evidence, that a series of partial
intermittent, subacute/subthreshold hypoxic insults can result in this type of
injury to the BGT deep nuclear structures including the perirolandic area was
justified.

29 J J Volpe ‘Hypoxic-Ischemic Injury in the Term Infant: Pathophysiology’ Chapter 9 in J J
Volpe Neurology of the Newborn 6 ed (2018) at 502.

[39] It follows that in determining the causation element in this matter, the
starting point is that the BGT brain injury pattern revealed by the MRI, ie the
injury to the central or deep grey matter of the brain, (the basal ganglia and/or
thalami and/or sensorimotor cortex), could in principle have been caused by
either by an acute profound total or near-total hypoxic ischaemic insult or
intermittent or prolonged episodes of subacute and subthreshold interruption of
the supply of blood to the brain. As I have said, the crucial question is which of
these probably occurred in this case. Of cardinal importance in this regard is
that in their joint minute Dr Murray and Prof Lombaard agreed that there was
no evidence of a sentinel event, whereas the A N v MEC judgment recorded
that the experts were agreed that there had been a sentinel event. This is one
crucial aspect that distinguishes the case A N v MEC on the facts. It is
somewhat odd that even though the appellant is content with the order granted
in A N v MEC and supports the evaluation of the evidence in that matter, the
appellant’s counsel argued that this Court’s assertion (in paragraph 17) of that
judgment that the experts were agreed that there was a sentinel event is wrong.

[40] It bears emphasising that the present appeal is not a debate about
whether A N v MEC was correctly decided or not. Besides, it is a trite principle
of our law that every case must be decided on its own facts and on the evidence
adduced in that specific matter. Factual findings made in one case cannot be
transferred to produce the same factual findings in another case with similar
facts. A N v MEC was a judgment reached on the basis of expert evidence
presented in that case and its conclusion was based on the facts of that case.
In the face of this important distinguishing fact, the appellant’s expectation that
the outcome of this case ought to be the same as that of A N v MEC is
misplaced. The appellant’s apparent anxiety that this Court’s confirmation of
the decision of the high court would open the floodgates of medical negligence
claims against the government is an irrelevant consideration. After all, nothing
bars a party from adducing all the evidence that it considers necessary to
persuade a court to reach an outcome favourable to it. Advocacy tools such as
cross-examination, presentation of contrary evidence will always be available
for counsel to use in similar cases in the future.

[41] Reverting to the facts of this case, it is of significance that Dr Murray
noted an entry in the respondent’s medical records categorising her pregnancy
as ‘low risk’. It was also noted that she had an adequate pelvis. In the joint
minutes of Dr Murray and Prof Lombaard, there was consensus that there was
no recorded sentinel or catastrophic event (uterine rupture, uterine tear,
placenta praevia, abruption placenta, umbilical cord prolapses, foeto-maternal
haemorrhage) which occurred during labour which could theoretically explain
the outcome of D M developing an encephalopathy which developed into
cerebral palsy. The expert evidence demonstrated that these are all rare,
traumatic and easily diagnosable events. Importantly, whilst both Dr Murray and
Prof Smith conceded that a cord compression (not to be confused with a cord
prolapse) would not leave a ‘footprint’, they convincingly explained that it was
improbable that a cord compression would cause an abrupt total hypoxic-
ischaemic event, ‘usually it comes and goes’.

[42] The paediatric experts, Prof Smith and Prof Cooper, agreed that there
was no clear evidence suggesting that infection, genetic or anatomical
abnormalities of the brain played a causative role. The joint minute of the
paediatric neurologists, too, expressed consensus on this aspect. Crucially,
Prof Smith asserted that in the event of a cord compression having the same
effect as a sentinel event, that would have meant that there was a cord
compression which occurred in the 20 minutes before delivery, resulting in a
bradycardia (the heart rate falling to 60 to 80 beats per minute). He opined that
if that were so, the bradycardia could not have resolved itself so quickly that at
1 minute of life (when D M’s first Apgar test was performed) the heart rate was
normal (the Apgar score for the heart rate was 2). It bears noting that this
evidence was not disputed.

[43] On this aspect, Dr Murray, the only obstetrician and gynaecologist who
testified, stated that typically a cord compression that is equal to a sentinel
event occurs when a cord prolapses. According to her, such an event would not
go unnoticed when there is proper monitoring, as it can be detected by
decelerations of the foetal heart rate. Based on these two experts’ uncontested
evidence on this aspect, it is improbable that there could have been a cord

compression that had the same effect as a sentinel event. In the absence of a
sentinel event, the aetiology of D M’s brain injury as one arising from
intermittent hypoxia, as described by Prof Smith, is the more probable
explanation.

[44] Regarding the late placental insufficiency that was observed when the
respondent’s placenta was examined following D M’s birth, Prof Smith opined
that it, too, would have caused foetal compromise, which would have impacted
on the foetus’s ability to tolerate a normal labour. If this aspect had been noted
during labour, it would have required intervention to avert the eventuation of
harm. However, this was an aspect that was obviously missed due to
inadequate monitoring.

[45] In an attempt to refute the occurrence of foetal distress, the appellant
referred to the relatively high Apgar score allocated to D M at birth, which, it
was submitted, was incompatible with foetal distress. However, this stance fails
to take into consideration that the paediatricians accepted the accuracy of the
following information, which was recorded by a reviewing doctor following D M’s
birth: ‘Prolonged 2nd stage; [Meconium-stained liquor] MSL II; baby
resuscitated, no meconium plug or laryngoscopy . . . glucose 11.2’. In respect
of the Apgar score, the following was recorded: ‘pink . . . regular breathing;
floppy; the baby was admitted and supplemental oxygen via head box was
administered’. Both paediatricians agreed that the Apgar scores recorded in D
M’s medical records were probably assisted by resuscitation. What was more
significant in this regard, however, was the evidence of Prof Smith that a
sentinel event would necessarily have resulted in a fixed terminal bradycardia,
which on the probabilities was incompatible with the baby’s Apgar scores of 2
for heart rate at 1 minute and 5 minutes after delivery.

[46] Dr Murray’s uncontested evidence was that the hypoxic ischaemic
episode would have manifested itself in decelerations of the foetal heart rate,
which would have been noted, had there been adequate monitoring. Her
uncontested evidence was that in the face of foetal distress, the desired
preventive action indicated in the maternity guidelines would have been to

expedite D M’s delivery. Her uncontested opinion was that there would have
been sufficient time to expedite D M’s delivery within twenty to twenty-five
minutes using forceps, which would have prevented the onset of D M’s brain
injury. Prof Lombaard did not dispute the estimated delivery time.

[47] Both obstetric experts agreed that the exact time at which foetal distress
occurred was impossible to determine due to the absence of clinical notes
detailing the last 95 minutes of the respondent’s labour. Despite it having been
the hospital staff’s obligation to monitor the foetal heart rate and to make the
necessary clinical notes, which it failed to do, the appellant tried to capitalise on
the fact that the exact times at which the foetal heart rate was indicative of foetal
distress could not be established. In my opinion, it is fallacious to posit that
where a woman in labour has not been monitored by hospital personnel at all
during the most critical stage of her labour, the MEC responsible for the relevant
hospital should escape liability arising from the negligence of its employees
purely on the basis that the exact timing of the hypoxic injury of an acute
profound nature cannot be ascertained. To do so would be to ignore
uncontested evidence that, on probabilities, shows a link between the
negligence and the harm that ensued.

Amicus application to adduce further evidence on appeal
[48] Against the background of the facts of this case and applicable
authorities, it is now convenient to give reasons for this Court’s dismissal of the
amicus application to adduce further evidence in the appeal. As mentioned
before, the application to admit further evidence was premised on the
contention that the medical and scientific articles sought to be introduced as
further evidence would reveal the unreliability of Prof Smith’s theory. It is well-
established that new evidence introduced on appeal is only admitted in
exceptional circumstances. The following passages of the seminal judgment of
the Constitutional Court in Rail Commuters Action Group and Others v Transnet
Ltd t/a Metrorail and Others30 are apposite:

30 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others [2004]
ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) at paras 41-43.

‘The SCA has similarly held that new evidence should be admitted on appeal under
this section only in exceptional circumstances. This is because on appeal, a court is
ordinarily determining the correctness or otherwise of an order made by another court,
and the record from the lower court should determine the answer to that question. It is
accepted however that exceptional circumstances may warrant the variation of the
rule. Important criteria relevant to determining whether evidence on appeal should be
admitted were identified in Colman v Dunbar. Relevant criteria include the need for
finality, the undesirability of permitting a litigant who has been remiss in bringing forth
evidence to produce it late in the day, and the need to avoid prejudice. One of the most
important criteria was the following:
“The evidence tendered must be weighty and material and presumably to be believed,
and must be such that if adduced it would be practically conclusive, for if not, it would
still leave the issue in doubt and the matter would still lack finality.”.’

[49] The argument presented in support of this application strayed far from
the criteria mentioned above. The thrust of the amicus’s argument was that
allowing the introduction of the articles would ensure that the erroneous findings
of the high court regarding the brain injury and how it is caused would have
precedential value, as this would expose the Department of Health to billions of
rands in damages claims. It was argued that whereas what could be distilled
from previous judgments of this Court was that acute profound insults happen
as a result of sentinel events which occur suddenly and without warning, the
high court had departed from that conventional view because of its erroneous
acceptance of a controversial theory propounded by Prof Smith. In fortification
of his argument, counsel for the amicus referred us to the discrepancies in
factual findings in A N v MEC for Health and MEC for Health and Social
Development, Gauteng v M M (obo O M)31 despite the pattern of the infants’
brain injuries being the same. In my view, the different conclusions arrived at
by various courts on this aspect perfectly illustrate the long-established principle
that every case will be decided on its own merits.

31 MEC for Health and Social Development, Gauteng v M M (obo O M) [2021] ZASCA 128
(SCA).

[50] The amicus, being the MEC for Health for the Eastern Cape Province,
confirmed having been a litigant in several medical negligence cases of a
similar nature to the one under consideration. It is worth mentioning that in A N
v MEC, this Court bemoaned the prevalence of medical negligence cases
arising from hospitals falling under the amicus.32 Of significance is that the
appellant, being part of government, has the means to engage counsel with the
requisite proficiency to ensure that evidence is presented on her behalf in the
best way possible. As properly observed in MEC for Health, Eastern Cape and
Another v Kirland Investments (Pty) Ltd,33 ‘[g]overnment is not an indigent or
bewildered litigant, adrift on a sea of litigious uncertainty’. The amicus must
accept that the appellant presented the case to the best of her ability. None of
these matters were relevant to the question that had to be answered. There
was no legal basis for allowing the amicus to attempt to supplement the
appellant’s case on appeal.

[51] The amicus’s contentions about the erroneous precedential value arising
from reliance on Prof Smith’s evidence have no merit. It is trite that each case
is decided on its own merits. Each case’s factual findings are based on the
evidence adduced in that specific case. The amicus’s contentions also fail to
take into account that scientific conclusions are subject to revision.34 The
periodic revision of ACOG recommendations attests to this. Trial courts should
not fall into the trap of demanding an unduly high measure of proof from a
litigant.35 As mentioned in Linksfield, the scientific measure of proof is the
ascertainment of scientific certainty, whereas the judicial measure of proof is
the assessment of probability.36 The following remarks by Holmes JA in Ocean
Accident and Guarantee Corporation Ltd v Koch37 are apposite:
‘The fact that, scientifically speaking, the aetiology of the disease is uncertain, does
not hamper the Court in deciding, on the facts and on the expert evidence adduced in
a given case, whether a likely cause was proved in such case. Judicial decisions reflect

32 A N v MEC para 28.
33 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6;
2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) para 82.
34 Daubert et al v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993) at 597.
35 Maqubela v S [2017] ZASCA 137; 2017 (2) SACR 690 (SCA) para 5.
36 Linksfield para 40.
37 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A).

the particular facts and testimony of each case, and are not intended and cannot be
regarded as scientific treatises. Accordingly, the possibility of future scientific disproof
of the opinion of one or other of the expert medical witnesses is, judicially, a matter of
no moment - the Court must do the best it can on the material presently before it in
each case.’
Decades later, similar sentiments were expressed as follows by the United
States Supreme Court in Daubert et al v Merrell Dow Pharmaceuticals Inc:38
‘It is true that open debate is an essential part of both legal and scientific analyses. Yet
there are important differences between the quest for truth in the courtroom and the
quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision.
Law, on the other hand, must resolve disputes finally and quickly. The scientific project
is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for
those that are incorrect will eventually be shown to be so, and that in itself is an
advance.’
I express unqualified agreement with these remarks.

[52] It is common cause that the new evidence sought to be introduced
comprised published articles which were already available at the time of the
trial. It was therefore open to the appellant to have used the articles in the trial
as part of her evidence, had she deemed it necessary to do so. A party’s
election to present its case in a particular manner is one of the factors that a
court will consider within its discretion to allow an amicus to adduce evidence.
As a general rule, therefore, an amicus should not be permitted to introduce
evidence, on appeal, that had been available to the parties at the time of the
trial but which they elected not to place before the court. Moreover, it was even
open to the appellant to apply to introduce the evidence on appeal. The
appellant, being a litigant in the matter, did not consider it necessary to do so.
The amicus was unable to proffer a valid explanation as to why the articles in
question should nevertheless be received as evidence on appeal.

[53] A scientific or medical publication that is merely handed up during the
proceedings without comment by a witness has no evidential value; such an

38 Daubert et al v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993) at 596-
597.

article has to be properly made part of the evidence by mutual admission or
confirmation in evidence. In my view, it was not open to the amicus to merely
hand up the articles it sought to have admitted as new evidence on appeal (with
the aim of discrediting Prof Smith’s evidence), when Prof Smith did not express
any views on the articles during the trial. Moreover, the contents of the articles
were not put to him for comment during cross-examination. The articles in
question could therefore not serve to discredit Prof Smith’s evidence.39

[54] As the amicus did not meet the requirements for the admission of new
evidence on appeal, the application was doomed to fail. Those are the reasons
why the amicus was not allowed to adduce new evidence on appeal. I must
also add that the amicus’s written and oral submissions were not helpful, as
they did not add anything new to the debate.

Conclusion
[55] To sum up in respect of the respondent’s delictual claim, it is clear from
the conspectus of all the medical evidence that there was a lack of adequate
monitoring at the most critical stage of the respondent’s labour. This conduct
fell far short of the very guidelines intended for public hospitals and clinics in
South Africa. In the face of slow progress in labour and the presence of thick
meconium, there was no intervention on the part of the hospital staff to expedite
the delivery of D M to avoid the eventuation of harm. However, it must be borne
in mind that the doctor was summoned for the first time at 01h30. Based on the
evidence, it is more probable than not that had the doctor who had been
summoned arrived, he would, upon noting the unfavourable maternal and foetal
conditions and the fact that the respondent was fully dilated, have delivered D
M by forceps within 20-25 minutes of that doctor’s arrival.40 This means that D
M would probably have been delivered by 02h15. It follows that D M’s brain
injury would not have eventuated if her delivery had been expedited, which is

39 President of the Republic of South Africa v South African Rugby Football Union and Others
[1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) paras 61-65.
40 Life Healthcare Group (Pty) Ltd v Suliman [2018] ZASCA 118; 2019 (2) SA 185 (SCA) para
16.

the intervention spelt out in the maternity guidelines and confirmed by Dr
Murray.

[56] For all the reasons set out above, it is clear that but for the appellant’s
failure to monitor and to take appropriate steps, D M would have been delivered
much earlier and the harm would probably not have eventuated. The appellant’s
argument that there is no evidence that the foetus was compromised for a
prolonged time, amounts to refusing to admit the undisputed fact that a period
of more than two hours lapsed between the noting of the poor progress of labour
at 01h20 and D M’s delivery at 03h35. This contention is plainly misconceived
and has no merit.

[57] In my view, the findings of Prof Smith’s article find a clear correlation
between the poor management of D M’s labour and the brain injury suffered by
D M. It is noteworthy that both Dr Murray and Prof Lombaard agreed that
insufficient monitoring of labour could have resulted in foetal distress being
missed. It is uncontested that no steps were taken to exclude foetal distress
despite poor progress of labour having been noted. Prof Smith’s opinion that,
in the absence of a sentinel event, it is more probable than not that this
substandard intrapartum obstetric management was the cause underlying the
sequence of events that culminated in D M being subjected to a hypoxic
ischaemic insult that led to her brain injury, is persuasive. Expressed differently,
the most probable cause of D M being asphyxiated during labour and
consequently suffering cerebral palsy was the failure of the hospital staff to
monitor the maternal condition during the most critical time of labour, the failure
to monitor the foetal heart rate and the consequent failure to intervene by
expediting D M’s delivery. The high court’s reliance on Prof Smith’s evidence
cannot be faulted.

[58] Further and in any event, the conspectus of the evidence has shown on
a balance of probabilities that the harm suffered by D M is closely connected to
the omissions of the hospital staff in relation to their inadequate monitoring of
the respondent’s critical stage of labour. Consequently, the causal link between

the negligence and the harm that ensued is undeniable. It follows that the
appeal must fail.

Costs
[59] As regards costs, I can see no reason why this Court should deviate from
the general rule that costs should follow the result. The appellant engaged a
senior and junior counsel to represent her in the appeal. Furthermore, during
the exchange with the bench, counsel for the appellant indicated that he
accepted that in the event of the appeal being dismissed, the costs order would
include the payment of costs occasioned by the employment of two counsel.
Given all the circumstances of this case, it was prudent for the respondent to
employ more than one counsel to represent her in the appeal.

Order
[60] In the result, the following order is made:
The appeal is dismissed with costs, including the costs occasioned by the
employment of two counsel.

____________________
M B Molemela
Judge of Appeal

Appearances

For appellant:
A B Rossouw SC (with L A Pretorius)
Instructed by:
State Attorney, Pretoria

State Attorney, Bloemfontein

For respondent:
J F Mullins SC (with M Coetzer)
Instructed by:
Wim Krynauw Attorneys, Krugersdorp

Martins Attorneys, Bloemfontein

For amicus curiae:
P J de Bruyn SC (with M Rili and T Rossi)

State Attorney, East London
State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
27 October 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
MEC for Health, Limpopo v L W M obo D M (502/2021) ZASCA 146 (27 October 2022)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal brought by the Member of
the Executive Council for Health, Limpopo Province (the appellant) against the decision of the
Gauteng Division of the High Court, Pretoria (the high court). The appeal was dismissed with
costs, including the costs occasioned by the employment of two counsel.

The appeal concerned a medical negligence claim in terms of which a mother (the
respondent), acting on behalf of her minor child (D M), claimed damages in the high court
arising from the brain injury which D M suffered during the birth process at Dilokong Hospital
(the hospital) in Limpopo Province. The claim was lodged against the appellant, who would
have been vicariously liable for damages caused by the negligent conduct of the hospital staff.

The facts of the matter were as follows. The respondent was admitted at the hospital in the
early hours of 17 July 2010. She was in the early stages of labour. An examination at 14h00
revealed that she was still in the latent phase of labour with no risk factors having been noted.
Her vital signs were noted as normal, as were those of the foetus. Labour progressed normally.
Some concerns relating to the slow progression of labour were noted in the entry made in the
partogram at 01h20 on 18 July 2010. The notes reflected that the doctor was summoned at
01h30 and he undertook to attend to the respondent. The respondent’s examination at 01h50
revealed that the amniotic sac membranes had ruptured, and meconium-stained liquor, grade
2, was observed. She was fully dilated and was thus in the second stage of active labour. At
02h00, the attending midwife again summoned the doctor who was on call. The clinical notes
recorded that the doctor promised to make an attendance. It further recorded that the plan
was to monitor the foetal and maternal condition. The note made at 02h00 was the last entry
made in the clinical notes. There was no indication of any monitoring whatsoever having taken
place between 02h00 and the delivery of the baby at 03h35. The clinical notes pertaining to D
M’s birth recorded, inter alia, a diagnosis of hypoxic-ischaemic encephalopathy (HIE). It was
common cause that D M developed severe asymmetrical mixed-type cerebral palsy,
predominantly dystonic.

The crisp question that the SCA had to determine was whether it was more likely than not that,
but for the wrongful and negligent conduct of the appellant’s employees, D M would not have
suffered a brain injury during the birth process, as a result of hypoxic ischemia. The appellant
had conceded that the hospital staff had been negligent.

The SCA found in respect of the respondent’s delictual claim that it was clear from the
conspectus of all the medical evidence that there was a lack of adequate monitoring at the
most critical stage of the respondent’s labour. This conduct fell far short of the very guidelines
intended for public hospitals and clinics in South Africa. In the face of slow progress in labour
and the presence of thick meconium, there was no intervention on the part of the hospital staff
to expedite the delivery of D M to avoid the eventuation of harm. Based on the evidence, the
SCA found that it was more probable than not that had the doctor who had been summoned
for the first time at 01h30 arrived, he would, upon noting the unfavourable maternal and foetal
conditions and the fact that the respondent was fully dilated, have delivered D M by forceps
within 20-25 minutes of that doctor’s arrival. The SCA found that this meant that D M would
probably have been delivered by 02h15. It followed that D M’s brain injury would not have
eventuated if her delivery had been expedited, which was the intervention spelt out in the
maternity guidelines and confirmed by Dr Murray.

The SCA found in respect of the expert evidence that the findings of Prof Smith’s article found
a clear correlation between the poor management of D M’s labour and the brain injury suffered
by D M. The SCA found further that it was noteworthy that both Dr Murray and Prof Lombaard
agreed that insufficient monitoring of labour could have resulted in foetal distress being
missed. It was uncontested that no steps were taken to exclude foetal distress despite poor
progress of labour having been noted. The SCA found that Prof Smith’s opinion that, in the
absence of a sentinel event, it was more probable than not that this substandard intrapartum
obstetric management was the cause underlying the sequence of events that culminated in D
M being subjected to a hypoxic ischaemic insult that led to her brain injury, was therefore
persuasive. Expressed differently, the SCA found that the most probable cause of D M being
asphyxiated during labour and consequently suffering cerebral palsy was the failure of the
hospital staff to monitor the maternal condition during the most critical time of labour, the failure
to monitor the foetal heart rate and the consequent failure to intervene by expediting D M’s
delivery. The SCA thus held that the high court’s reliance on Prof Smith’s evidence could not
be faulted.

The SCA found further that the conspectus of the evidence had shown on a balance of
probabilities that the harm suffered by D M was closely connected to the omissions of the
hospital staff in relation to their inadequate monitoring of the respondent’s critical stage of
labour. Consequently, the causal link between the negligence and the harm that ensued was
undeniable.

~~~~ends~~~~