M., R.R. v. Member of the Executive Council for Health

The plaintiff in this case alleged negligence in her legal capacity of a guardian of her child (B) who suffers from cerebral palsy. She alleged that it was the hospital’s negligence during labour and childbirth, which cause a permanent brain damage in her daughter. In her plaint, she stated that the hospital did not keep proper medical records, which compromised the well-being of the foetus, they further failed to monitor her labour properly, they allowed the foetus to be severally distressed and failed to act upon it, they delayed the delivery and finally the laceration of the placenta led to the asphyxiation of B.

The plaintiff alleged that all the abovementioned acts led to the hypoxic ischemic encephalopathy (brain injury caused by oxygen deprivation) causing cerebral palsy.

The Court held the defendant liable for negligence. It stated that the bad record keeping was evident from the attending nurse’s testimony. The independent expert evidence pointed towards the negligence of the hospital staff. One of the experts testified that an hour’s delay in conducting the Caesarean operation was negligent. Further he stated that the procedure adopted by the doctors was not the appropriate measure for the case at hand.

The Court stated that in such a complex case- a junior doctor should not have been allowed to perform an emergency C-section. The court further stated that as the baby foetus was suffering from tachycardia, time was of essence and the lack of urgency caused the foetus to suffer more. The court finally stated that 60% loss of blood in the baby points to the fact that the operation took too long.

The Court ordered the defendant to compensate the plaintiff to an agreed amount and the costs of litigation.

“The Guidelines provide that it must be ensured that a caesarean section can be performed within one hour of the decision to operate. It was conceded that the operation only started 1 hour after the decision was taken, not performed. This is so because if the decision was taken at 12:45, the plaintiff arrived in the theatre at 13:50, then it took at least 10 minutes for the spinal anaesthetic to take effect and then only was the operation started. So the operation started more than an hour after the decision was taken let alone performed within the hour. This is negligent because the foetus was experiencing tachycardia and for this reason the decision was taken to perform an emergency C-section; time was of the essence. This lack of urgency caused further damage to the foetus. The defendant forwarded no reasons why this C-section could not be performed earlier.” (Para 108)

“The defendant is negligent in not ensuring that emergency C-sections are dealt with by senior doctors. There is no doubt that Dr Sondiyaza was not equipped to deal with this C-section; she did not know what to do when confronted with a poorly formed lower segment and varicosities. It simply does not matter if she had performed 10 or 30 caesareans; she was not equipped to deal with an emergency C-section. She had only done caesareans on her own for three weeks before this operation. There was no system in place at the defendant that the most senior doctor takes over; the most senior doctor on duty did not take over, he arrived after the extraction. The result of Dr Sondiyaza’s incapability to perform the operation resulted in the operation coming to a halt. With an emergency caesarean not been speedily attended to because a junior doctor could not perform the operation is not the standard of practice required from the defendant. The process had to be halted for another surgeon to arrive; time is of the essence with a compromised baby. This is simply so because a compromised baby can withstand asphyxia only half the time that of a normal foetus.” (Para 109)