SN obo ON v Member of the Executive Council for Health: Eastern Cape

SN, a 34-year-old pregnant woman, was admitted to Madzikane KaZulu Memorial Hospital in the Eastern Cape on 14 February 2013 at approximately 07h30 experiencing labour pains. Her pregnancy was estimated at 36 out of 40 weeks. She was initially in the latent phase of labour and examined at 10h00 when active labour began (cervix 4cm dilated). The foetal heart rate (FHR) was normal at 138 bpm. Pethidine was administered. A subsequent assessment around 11h30-12h00 showed FHR of 136 bpm, broken liquor with a tinge of meconium, and 2 caput. SN was fully dilated at 11h15 and began bearing down at 11h30. A male child (ON) was born at 12h00. The umbilical cord was wrapped thrice around the baby's neck. ON was born alive but with an Apgar score of 7/10 at 1 minute and 8/10 at 5 minutes. He was described as a 'floppy baby' with weak Moro reflex and absent cry, requiring resuscitation. ON was diagnosed with hypoxic-ischaemic encephalopathy (HIE) and subsequently developed cerebral palsy. The Maternity Case Record showed inadequate FHR monitoring between 10h00 and birth, failing to comply with the Guidelines for Maternity Care in South Africa 2007 which require half-hourly FHR checks during active labour.

• Whether the hospital nursing staff was negligent in monitoring the appellant and foetus during labour
• Whether the negligence of the hospital staff was causally connected to the child's brain damage
• Whether substandard foetal heart rate monitoring constituted a breach of the duty of care
• Whether the brain injury suffered by ON was reasonably foreseeable and preventable

1. The appeal is upheld with costs. 2. The order of the high court is set aside and replaced with the following: 'The defendant is ordered to pay the plaintiff's agreed or proven damages with costs'.

Healthcare professionals owe a duty to monitor patients in labour according to the standards specified in applicable clinical guidelines. In South Africa, the Guidelines for Maternity Care in South Africa 2007 require that foetal heart rate (FHR) be checked at half-hourly intervals during the active phase of labour (when cervix is 4cm dilated) - before, during and after every contraction. Failure to conduct such monitoring constitutes negligence where: (1) the failure represents a departure from the standard of care expected of a reasonable healthcare professional in the circumstances; (2) foetal distress was reasonably foreseeable (even in low-risk pregnancies); and (3) proper monitoring would have detected FHR abnormalities (such as decelerations) indicating foetal distress, allowing timeous intervention that would have prevented the hypoxic-ischaemic brain injury. Where an umbilical cord is wrapped around a foetus's neck and causes hypoxic-ischaemic injury resulting in cerebral palsy, and such distress would have manifested in detectable FHR decelerations had proper monitoring been conducted, the failure to monitor is both the factual and legal cause of the injury. Formal admissions in joint expert minutes regarding substandard care are freestanding admissions that remove the admitted issues from dispute.

The Court made several non-binding observations: (1) Nuchal cords (cords wrapped around the neck of foetuses) occur frequently but do not all result in cerebral palsy births because they are generally identified early enough through proper monitoring which picks up foetal distress shown by decelerations, allowing for timeous interventions. (2) The Court described the physiological mechanism of hypoxic-ischaemic injury: when oxygen levels of a foetus drop below 50% of norm, it affects the cardiovascular response causing bradycardia (slowed heart rate) as a defense mechanism to reduce oxygen consumption. This bradycardia will last for the duration of oxygen deprivation. If oxygen deprivation is prolonged, eventual oxygen supply to the brain is compromised causing acute brain damage. (3) The Court noted with concern that Sister Bonga recorded the cord around the neck as a complication yet failed to indicate whether it was tight or loose, and failed to indicate whether the meconium (indicative of foetal stress) was thin or thick. (4) The Court expressed that Sister Bonga's selective memory - having no recollection except for what was recorded, yet claiming to recall getting her finger under the cord (something never recorded) - remained 'a mystery'. (5) Courts should be slow to conclude that views genuinely held by competent experts are unreasonable, but are not bound to absolve defendants just because expert evidence supports the treatment provided.

This case is significant in South African medical negligence jurisprudence as it reinforces several important principles: (1) It clarifies the evidentiary value of formal admissions made in joint expert minutes - such admissions are freestanding and remove issues from dispute. (2) It emphasizes the binding nature of clinical guidelines (specifically the Guidelines for Maternity Care in South Africa 2007) in establishing the standard of care expected of healthcare professionals. (3) It illustrates the application of the Aquilian action requirements (wrongful act causing damage) in medical negligence cases. (4) It demonstrates the proper approach to evaluating expert evidence in medical negligence cases, following the principles in AM v MEC Health, Western Cape and Michael v Linksfield Park Clinic. (5) It confirms that courts are not bound to absolve defendants merely because expert evidence supports their conduct. (6) The case underscores the critical importance of proper maternal and foetal monitoring during labour and the legal consequences of failing to adhere to established clinical protocols. (7) It provides guidance on assessing witness credibility, particularly where a witness has no actual recollection and relies solely on records and usual practice.