The Member of the Executive Council for Health, Eastern Cape v DL obo AL

On 20 October 2011, the respondent, who was at full term pregnancy, was admitted to Midlands Hospital, Graaf-Reinet at 01h45. Upon admission at the labour ward at 01h50, a vaginal examination revealed cervical dilation of 2cm, placing her in the first phase of the first stage of labour. CTG monitoring was conducted from 02h01 to 02h18, showing a baseline foetal heart rate of just below 160 beats per minute (recorded as 160 bpm), with variability of 5-10 minutes, no accelerations or decelerations, and 5-6 contractions in 10 minutes. No further monitoring occurred until 06h00. A second CTG monitoring from 06h11 to 06h23 showed a baseline foetal heart rate of 175-180 bpm with normal variability and no accelerations or decelerations. At 06h30, Dr Mpependuku was notified and arrived at 07h00, deferring to Dr Othman who examined the respondent at 07h15 and ordered a caesarean section. The baby, AL, was delivered by caesarean section at 08h40 (85 minutes after the decision to operate). AL subsequently developed cerebral palsy due to an acute profound hypoxic ischaemic event during labour. The respondent sued the MEC for Health on behalf of AL, alleging medical negligence by the hospital staff.

• Whether the hospital staff were negligent in their treatment of the respondent during labour
• Whether the CTG reading of 160 beats per minute at 02h00 was suspicious and required further intervention
• Whether the failure to monitor the respondent between 02h18 and 06h00 constituted negligence
• Whether the failure to perform the caesarean section within one hour of the decision to operate constituted negligence
• Whether any alleged negligence caused AL's hypoxic ischaemic injury and resultant cerebral palsy (factual causation)
• Whether the findings of the high court were tainted by bias

The appeal was upheld. The order of the high court was set aside and replaced with an order dismissing the plaintiff's claim. No costs order was made as the appellant did not seek costs.

In medical negligence claims, the plaintiff must prove both negligence and factual causation on a balance of probabilities. Negligence in the medical context requires proof that the health professional failed to foresee the possibility of harm occurring in circumstances where similarly qualified professionals would have reasonably foreseen this possibility and taken steps to prevent it. Factual causation requires proof that the negligent act or omission caused or materially contributed to the harm suffered. In the context of acute profound hypoxic ischaemic injuries constituting obstetric emergencies, where expert evidence establishes that the injury occurred suddenly and unpredictably, and where the plaintiff's own experts concede they cannot establish when the injury occurred or that earlier intervention would have prevented it, causation has not been established. A court may not disregard expert evidence admitted by agreement and prefer contrary expert opinion that is not supported by specific facts of the case. The failure to monitor a patient strictly in accordance with clinical guidelines does not, without more, establish negligence where the clinical observations made did not indicate foetal distress and where similarly qualified professionals would not have foreseen harm based on those observations.

The Court made observations about the application of the National Maternal Guidelines 2007 versus the 2015 guidelines and the NICE guidelines, noting that while the 2007 guidelines applied to this case (the incident occurring in 2011), the NICE guidelines were also being applied in South African hospitals at the relevant time and provided that a baseline foetal heart rate of 110-160 bpm was normal. The Court observed that in public hospitals, it is sometimes not possible to perform a caesarean section within one hour of the decision to operate, as acknowledged by Dr Murray. The Court noted that actions taken between the decision to operate and the actual operation may fall within the scope of ascertaining whether the indications for performing the caesarean section are still extant, as contemplated in the guidelines. Regarding bias, the Court reiterated that a mistake on facts will only give rise to a reasonable apprehension of bias if it is so unreasonable on the record that it is inexplicable except on the basis of bias, following Bernert v ABSA Bank Ltd. The Court emphasized that an expert's bald statement of opinion without reasoning or factual foundation is not of real assistance to the court.

This case is significant in South African medical negligence law as it reinforces the fundamental principle that proof of both negligence and causation are essential elements of a delictual claim. The case demonstrates that even where there may be departures from clinical guidelines or protocols, liability will not arise unless the plaintiff proves on a balance of probabilities that such departures caused the harm suffered. The judgment emphasizes the proper approach to evaluating expert evidence, particularly the binding nature of agreed expert evidence and the requirement that expert opinions be based on established facts rather than speculation. The case also clarifies the application of the "but for" test in medical negligence cases involving acute profound hypoxic events, where the precise timing of injury is uncertain. It illustrates that courts must carefully scrutinize expert concessions made during cross-examination and not rely solely on evidence-in-chief. The judgment reinforces the principles from AN obo EN v Member of the Executive Council for Health, Eastern Cape that wrongful conduct alone, without proof of causation, does not establish delictual liability.