Department wins cerebral palsy case

THE Eastern Cape Department of Health has won an appeal against a mother who had previously successfully sued it for her baby developing cerebral palsy, allegedly during the birth process.

Relying on the expert opinion of two doctors in that province, the high court in Bhisho found that negligence and causation were proven on a balance of probabilities. But the Supreme Court of Appeal (SCA) has since overturned this.

On October 20, 2011, the highly expectant mother was picked up from her home by an ambulance and arrived at Midlands Hospital, Graaff-Reinet, at 1.45am.

In terms of negligence, the issue in dispute was whether a cardiotocography (CTG) reading taken from 2.01am to 2.18am was suspicious.

Whether the non-monitoring of the mother between 2am and 6am, coupled with the failure to deliver the baby within one hour of the decision to perform a Caesarean section, constituted negligence, which caused cerebral palsy, was also argued.

The mother argued that if the monitoring of her labour had taken place according to the National Maternal Guidelines 2007, a change in the foetal condition would have been timeously observed and the delivery would then have been expedited, thereby preventing the brain injury that eventuated as a result of hypoxic ischemia.

The health department denied this. In the appeal outcome, SCA Judge Mahube Betty Molemela said: “The only evidence before the trial court was expert testimony. Both oral and documentary evidence was adduced. The respondent did not testify.

“Two experts, Dr Murray, an obstetrician and Dr Alheit, a paediatric neurological radiologist, testified on behalf of the respondent.

“The high court accepted Dr Alheit’s thesis despite the fact that he had conceded that he had no facts specifically relating to this case, on which he based his opinion. It is of significance that notwithstanding his earlier evidence, Dr Alheit admitted, under cross-examination, that if there were no signs that the foetus was stressed, then the hypoxic ischemic injury would have been an unpredictable event.

“Despite the fact that the monitoring of the foetal heart was not in strict accordance with the 2007 guidelines, the facts of this case, cumulatively considered, do not suggest that the nurse who attended to the respondent could, based on the two o’clock monitoring, reasonably have foreseen that harm would ensue.

“Neither do they suggest that a reasonable health professional in the position of that nurse would have foreseen any reasonable possibility of harm ensuing and taken steps to prevent it.”

The health department did not respond to requests for comment by deadline.