Magqeya v Member of the Executive Council for Health, Eastern Cape

Ms Apiwe Magqeya, a 17-year-old first-time mother, was admitted to All Saints hospital (a level one state hospital) on 4 May 2010 at 12h40 when she was 40 weeks pregnant with labour pains. Upon admission, vital observations were normal and foetal heart rate (FHR) was 138/min (normal range 110-160). However, there were extraordinarily long periods of no monitoring: from 12h40 until 23h45 on 4 May and from 23h45 until 08h20 on 5 May. The next entry was at 08h20 on 5 May when active labour commenced. At 10h00 on 5 May, she delivered her baby by face to pubis delivery (a risky manner). The baby, Kwanga, suffered an acute profound hypoxic ischaemic event during labour resulting in spastic dystonic quadriplegic cerebral palsy. Hospital records were extensively altered and falsified, including changes to blood pressure readings, Agpar scores, and the Partogram (which tracks labour progress). Ms Magqeya sustained a severe third-degree perineal tear. Ms Magqeya sued the MEC for Health for delictual damages on behalf of her minor child.

• Whether the hospital staff were negligent in their monitoring and treatment of Ms Magqeya during labour
• Whether the alleged negligence caused the hypoxic ischaemic injury and resultant cerebral palsy
• Whether falsified medical records could be admitted as evidence and what weight should be given to them
• Whether factual causation was established on the probabilities
• The application of Lee v Minister of Correctional Services principles regarding factual causation where the specific incident or timing cannot be identified

The appeal was dismissed with costs by majority decision (3-2).

Per the majority: Even assuming negligent failure to monitor the patient adequately, factual causation on a balance of probabilities was not established. Where an acute profound hypoxic ischaemic injury occurs immediately before delivery (within the last hour), earlier failures in monitoring could have had no causal effect. For factual causation to be established in medical negligence, the plaintiff must prove on a balance of probabilities that the negligent conduct caused the harm. In cases of acute profound brain injury (as opposed to partial prolonged type injury), the relevant timeframe for potential intervention is the period immediately before the catastrophic event. Per the minority (obiter, as it did not prevail): In medical negligence cases, where inadequate monitoring creates a risk and that risk materializes, factual causation can be established even where the specific timing and source of injury cannot be precisely identified, applying the principles in Lee v Minister of Correctional Services. Professional persons (including nurses) must adhere to the level of skill and diligence exercised by members of their profession, and failure to do so constitutes negligence.

The minority judgment strongly deprecated the falsification of medical records as "abhorrent conduct unbecoming to persons employed to serve all citizens." Both judgments noted that medical records were extensively altered, which the minority found rendered them too unreliable for admission where disputed. The minority stated that even where records are agreed to be admitted "without formal proof", parties retain the right to dispute their correctness, and section 3 of the Law of Evidence Amendment Act 45 of 1988 requires consideration of multiple factors including prejudice before admitting disputed hearsay evidence. The majority noted that the alteration of records, however suspicious, does not constitute proof positive of negligence. The minority discussed the flexible approach to factual causation in Lee v Minister of Correctional Services, stating it would be enough to satisfy factual causation where evidence establishes the plaintiff was in a situation where proper systemic measures would have reduced the risk. The majority criticized the trial as having become "an unnecessarily protracted one" conducted "as if the parties were engaged in an abstract, theoretical exercise" due to the appellant's failure to testify.

This case illustrates the challenges in medical negligence cases involving birth injuries, particularly regarding: (1) The evidential difficulties where medical records have been falsified; (2) The distinction between acute profound hypoxic events and partial prolonged events in determining when intervention could have made a difference; (3) The application of factual causation principles in medical negligence cases; (4) The split demonstrates differing judicial approaches to factual causation in medical negligence - the stricter 'but for' test versus the more flexible Lee approach; (5) It emphasizes the importance of proper record-keeping in medical settings and strongly deprecates falsification of medical records; (6) It demonstrates the professional standard expected of nursing staff in monitoring patients during labour. The case also illustrates procedural issues about the plaintiff's failure to testify and the resulting evidential gaps.