HAL obo MML v MEC for Health, Free State

On 1 May 2005, Ms HAL was admitted to Thebe Hospital in Harrismith, Free State, while pregnant. She gave birth to MML on 2 May 2005 via normal vaginal delivery. Some time later, MML showed signs of neurological regression and was diagnosed with cerebral palsy. An MRI scan taken in August 2014 (over 9 years after birth) revealed he had suffered hypoxic ischemic encephalopathy (HIE), a brain injury caused by lack of oxygen and blood flow, of the partial prolonged type. The appellant instituted action on 2 September 2014, claiming MML's injury occurred during labour and birth (intrapartum period) due to inadequate monitoring and failure to detect foetal distress by hospital staff. The respondent denied liability. The hospital records relating to the labour and delivery were missing, though limited records (Maternity Register, Delivery Register, Ward and Discharge Summary, Road to Health Chart) were available. The trial took place 13 years after the birth. Expert witnesses for both sides gave evidence. The high court dismissed the claim with costs, finding the appellant was not a reliable witness and her version did not establish negligence on a balance of probabilities. The appellant was granted leave to appeal.

• Whether MML's brain injury occurred during the intrapartum period
• Whether the hospital staff were negligent in monitoring the appellant and the foetus during labour
• Whether negligence (if proven) caused MML's brain injury
• The effect of missing hospital records on the burden of proof
• The reliability and credibility of the appellant as a witness
• The proper approach to expert evidence in medical negligence cases
• Whether the doctrine of res ipsa loquitur applies
• The status and effect of joint minutes signed by expert witnesses
• The proper sequence of witnesses at trial and admissibility of expert evidence based on unproven facts

The appeal was dismissed with costs of two counsel.

The binding legal principles are: (1) In medical negligence cases, the plaintiff bears the onus of proving negligence and causation on a balance of probabilities; speculation is insufficient. (2) Expert opinion evidence must be based on proven or admitted facts; opinions based on unproven hearsay are inadmissible or of no value. (3) Missing hospital records are a neutral factor in the absence of evidence about why they are missing; adverse inferences cannot be drawn merely from their absence. (4) The credibility (honesty) and reliability (accuracy) of witnesses are distinct concepts; a witness may be honest but unreliable due to passage of time and lack of corroboration. (5) The doctrine of res ipsa loquitur rarely applies in medical negligence cases and only where there is evidence of what went wrong and it is of a type that should not occur without negligence. (6) Where expert witnesses sign joint minutes, factual agreements are binding on parties (absent good reason to depart), but agreements on opinions are merely evidence to be assessed by the court alongside all other evidence. (7) Expert witnesses must be permitted to explain their reasoning and may disagree with opinions in joint minutes, provided this does not result in trial by ambush. (8) The proper sequence at trial requires factual evidence to be led before expert opinion evidence that depends on those facts. (9) Time limitations for bringing medical negligence claims must be viewed in context, particularly where the claimant is a minor, but delay may affect the reliability of evidence and the court's ability to adjudicate satisfactorily.

Wallis JA made significant obiter observations about the conduct of medical negligence litigation: (1) Active touting by attorneys (going to schools for disabled children to select cases) may constitute professional misconduct warranting investigation by the Legal Practice Council. (2) Particulars of claim consisting of vague generalities and speculative allegations are unacceptable and could be set aside as irregular; pleadings must identify specific acts or omissions constituting negligence and the persons responsible. (3) Where pleadings and pre-trial procedures fail to define issues clearly, trial judges should require parties to file statements of issues under Rule 37A(9)(a) or by invoking inherent powers. (4) Joint minutes of experts should be prepared by the experts themselves without lawyer involvement. (5) Expert minutes are not contractual in nature and should not be described using contract language. Wallis JA also expressed disquiet about circumstances in which indigent, ill-informed litigants come to be represented by Johannesburg attorneys following what appeared to be touting. Molemela JA's dissent contained extensive obiter about: (1) The need for a "charitable approach" where hospital records are missing through the state's fault, suggesting the healthcare facility should bear the evidentiary burden of showing care met proper standards. (2) The systemic problem of missing hospital records in South Africa and the prejudice this causes plaintiffs. (3) The importance of calling all relevant witnesses who made entries in medical records. (4) The limitations of Apgar scores as diagnostic tools. (5) Recognition that many medical negligence claims by impoverished, ill-informed mothers are delayed for understandable reasons. The majority disagreed with these propositions, holding they would improperly shift the onus of proof.

This case is significant for establishing important principles in South African medical negligence litigation: (1) It confirms the restrictive approach to applying res ipsa loquitur in medical negligence cases, particularly where the cause and timing of injury are unclear. (2) It clarifies that missing hospital records, while regrettable, do not automatically favour the plaintiff or justify drawing adverse inferences unless there is evidence of deliberate destruction. (3) It emphasizes that the onus remains on the plaintiff to prove negligence and causation on a balance of probabilities, and this cannot be satisfied by speculation or unreliable evidence. (4) It distinguishes between credibility (honesty) and reliability (accuracy) of witnesses, particularly where significant time has elapsed. (5) Wallis JA's concurring judgment provides important guidance on proper trial procedure in medical negligence cases: experts should not testify before the factual foundation is established; pleadings must clearly define the issues; joint expert minutes bind parties on factual agreements but do not prevent experts from explaining or disagreeing with opinions; and courts should require clear statements of issues where pleadings are defective. (6) The case demonstrates the importance of proper record-keeping by hospitals under the National Health Act, though the court was divided on the consequences of non-compliance. (7) It illustrates the difficulties plaintiffs face in medical negligence cases where litigation is delayed and records are missing, while maintaining that this does not shift the onus of proof. The dissenting judgment reflects an ongoing tension in South African law between strict application of evidentiary rules and considerations of fairness where vulnerable litigants face prejudice through no fault of their own.