AN on behalf of EN v Member of the Executive Council for Health, Eastern Cape

The appellant's baby was born at All Saints Hospital, Engcobo on 2 October 2013 with brain damage caused during labour. The baby was delivered at 06h45 after 45 minutes of the second stage of labour, during which no monitoring of the foetal heart rate took place (the last recorded measurement was at 06h00). The baby suffered a hypoxic ischaemic insult resulting in cerebral palsy. An MRI scan showed damage only to the deep grey matter of the brain, indicating an acute profound hypoxic ischaemic event - meaning a sudden, total, persistent interruption to blood supply. The mother testified that she received inadequate care, was left unattended, and experienced severe pain during labour. The hospital staff failed to monitor the foetal heart rate in accordance with accepted guidelines. Expert evidence established that the damage was caused by a sentinel event (sudden total cord compression) that occurred during the final stage of labour. The respondent is the MEC for Health, Eastern Cape, vicariously liable for the conduct of hospital staff.

• Whether the negligent failure of hospital staff to properly monitor the mother and foetus during delivery caused the baby's brain damage (factual causation)
• Whether factual causation can be established where a sudden sentinel event occurs without prior warning signs
• The appropriate test for factual causation in medical negligence cases involving omissions
• Whether the Lee v Minister for Correctional Services flexible approach to causation applies or whether the traditional 'but-for' test suffices
• The standard of care required of hospital staff in monitoring labour and delivery

The appeal was dismissed. No order as to costs was made, reflecting the court's displeasure with the pervasive negligence in hospitals under the respondent's authority, even though the respondent succeeded on the causation issue.

In a medical negligence claim based on failure to monitor during labour: (1) The plaintiff must prove not only wrongfulness (breach of the duty to monitor) but also factual causation - that the breach caused the harm suffered. (2) Factual causation is established by proving on a balance of probabilities that the harm would not have occurred 'but for' the negligent omission, or that reasonable conduct would have prevented the harm. (3) Where harm results from a sudden, acute sentinel event (such as total cord compression), the plaintiff must prove either: (a) that there would have been warning signs which monitoring would have detected, allowing intervention before the sentinel event; or (b) that if the sentinel event was detected through monitoring, there was sufficient time to intervene and prevent the harm. (4) The traditional 'but-for' test for factual causation applies where the source of harm is known (unlike Lee which dealt with unknown sources of infection). The flexible approach in Lee is not necessary where the traditional test is adequate. (5) Speculation about what might have occurred is insufficient to discharge the onus of proving causation on a balance of probabilities.

The court expressed serious concern about the prevalence of serious and serial negligence in hospitals under the respondent's authority. Gorven AJA stated: "Far too often this court is confronted with serious and serial negligence in hospitals falling under the respondent. Whether or not the negligence can be said to have caused harm in the delictual sense, it is clear that studied neglect of standards has become pervasive in many such hospitals." The court noted that despite this being brought to authorities' attention, the conduct has not abated. The court directed that the judgment be forwarded to the respondent and the National Minister of Health "in the hope that this situation will be urgently addressed." On the Lee test for causation, the majority noted there has been debate whether Lee changed the law on factual causation, but stated it was unnecessary to resolve that debate in this case. The court noted that to the extent Lee might be thought to have changed the test, this was disavowed in Mashongwa. The minority judgment (Molemela JA) expressed the view that the majority erred in its evaluation of expert evidence, particularly in rejecting Prof van Toorn's evidence about intermittent hypoxic episodes and foetal reserves, and in accepting Prof Buchmann's evidence on matters outside his expertise. The minority also criticized the proposition that intervention becomes irrelevant once an acute profound insult is identified, noting this would exempt hospital staff from liability whenever obstetric emergencies occur.

This case clarifies the application of factual causation principles in medical negligence cases, particularly where harm results from an omission to monitor. It confirms that after Mashongwa v PRASA, the traditional 'but-for' test remains the primary approach to factual causation, with the flexible Lee approach reserved for cases where the specific source of harm cannot be identified. The case demonstrates the difficulty plaintiffs face in proving causation where sudden, unpredictable sentinel events occur during childbirth, even when there is clear negligence in monitoring. It establishes that wrongfulness (breach of duty) alone is insufficient for liability - factual causation must still be proved on a balance of probabilities. The case also highlights the courts' concern about systemic negligence in public hospitals and the need for urgent remedial action, with the judgment being forwarded to health authorities. The case shows the importance of expert evidence being logically based and supported by peer-reviewed literature, and demonstrates judicial scrutiny of competing expert opinions in medical negligence cases.