Sibisi NO v Maitin

Mrs Nondumiso Sindiswe Sibisi, a teacher, was pregnant with her third child and under the care of Dr D P Maitin, an obstetrician and gynaecologist. On 9 July 2006, eight days past the expected delivery date, Dr Maitin estimated the baby's weight at 4kg and admitted Mrs Sibisi to St Augustine's Hospital to induce labour. During delivery on 10 July 2006, shoulder dystocia occurred and Dr Maitin performed a McRoberts' manoeuvre to release the baby's stuck shoulder. The baby, Yandiswa, weighed 4.68kg at birth (680g more than estimated) and suffered injury to her brachial plexus, resulting in Erb's palsy causing permanent paralysis of her right shoulder and arm. Mrs Sibisi sued Dr Maitin as curator for her daughter, alleging negligence in misestimating the baby's weight, failing to perform a Caesarean section, mismanaging labour, failing to warn of the risks of vaginal delivery of a macrosomic baby (particularly shoulder dystocia), and using excessive force in the McRoberts' manoeuvre. Mrs Sibisi was not warned of the remote risk of shoulder dystocia or given the option to elect a C-section.

• Whether Dr Maitin was negligent in estimating the baby's weight before inducing labour
• Whether Dr Maitin was negligent in managing Mrs Sibisi's labour and delivery
• Whether Dr Maitin should have foreseen the possibility of shoulder dystocia and performed a Caesarean section instead of vaginal delivery
• Whether Dr Maitin performed the McRoberts' manoeuvre negligently or with excessive force
• Whether the common law test for informed consent should be developed to adopt a 'reasonable patient' test rather than a 'reasonable doctor' test
• Whether the plaintiff discharged the onus of proving negligence on the part of the doctor

The appeal was dismissed with costs.

The binding principle is that in an Aquilian action for medical negligence, the plaintiff must prove negligence as a separate element before the issue of informed consent (which goes to wrongfulness) arises. Negligence is assessed objectively by the Van Wyk v Lewis standard: whether a reasonable medical practitioner with the skill and diligence of that branch of the profession would have foreseen the possibility of harm and taken steps to prevent it. In obstetric cases: (1) weight estimation errors within recognized margins for macrosomic babies do not constitute negligence; (2) shoulder dystocia is not reasonably foreseeable based on foetal size alone absent other risk factors; (3) prophylactic Caesarean section is not required for suspected macrosomia without diabetes or other contraindications to vaginal delivery; (4) emergency procedures performed to save life are assessed in their emergency context; and (5) common signs during labour (mild decelerations, blood in liquor/urine, slow initial descent) do not per se require emergency intervention. The informed consent doctrine in Castell v De Greef applies to wrongfulness but does not eliminate the requirement to prove negligence first.

Lewis JA made several important obiter observations: (1) The Court expressed sympathy for the difficult position doctors face - if they disclose all risks they may frighten patients from beneficial procedures, but failure to disclose may render them liable. (2) The Court noted approvingly the proposition from Castell v De Greef that South African law is moving toward recognizing fundamental rights of individual autonomy and self-determination, and away from paternalism, suggesting receptiveness to developing the 'reasonable patient' test for informed consent in an appropriate case. (3) The Court observed that performing 2,000-2,345 C-sections to prevent one case of permanent injury from shoulder dystocia (as suggested by medical literature and expert evidence) would be unreasonable and expose mothers to the inherent risks of surgical delivery. (4) The Court commented that 'giving birth is an inherently risky process' but that anticipated rewards usually outweigh risks - acknowledging the balance patients and doctors must strike. (5) Lewis JA noted that even if the common law were developed to adopt the 'reasonable patient' test, Mrs Sibisi would have failed on the facts because she placed complete trust in Dr Maitin to make the decision and no evidence was led about what a reasonable patient would have chosen when weighing a <1% risk of shoulder dystocia against the higher risks of C-section.

This case is significant in South African medical negligence law for several reasons: (1) It clarifies that the plaintiff bears the onus of proving negligence according to the Van Wyk v Lewis test - whether a medical practitioner with reasonable skill and diligence would have foreseen the harm and taken steps to prevent it. (2) It confirms that foetal weight estimation is an inherently inexact science and reasonable margins of error (500-680g with large babies) do not constitute negligence. (3) It establishes that shoulder dystocia is not reasonably foreseeable even with macrosomic babies, and prophylactic C-sections are not the standard of care absent specific risk factors like maternal diabetes or history of shoulder dystocia. (4) It recognizes that emergency manoeuvres like McRoberts' are performed to save life and must be assessed in that context. (5) While acknowledging the Castell v De Greef 'reasonable patient' test for informed consent, it clarifies the relationship between negligence and informed consent: informed consent goes to wrongfulness, but negligence must still be established first. Without proof of negligent conduct, the question of whether consent was properly informed does not arise. (6) The case demonstrates judicial deference to medical judgment where plaintiff's expert evidence is contradicted by defendant's experts and medical literature, particularly regarding standards of care and risk assessment.