The Member of the Executive Council, Department of Health, North West Province v NAM obo TN

On 17 December 2003, the plaintiff (NAM) arrived at Makgobistad clinic in Kuruman, North West Province, at approximately 07h50 in full-term labour. The clinic was closed at the time, with approximately twenty people waiting outside. She gave birth unmonitored in a panel van at 08h15, before nursing staff arrived. Her baby (TN) was still, did not cry, and was not breathing for approximately 10 minutes after birth. At 08h25, the assistant nurse took the baby inside the clinic. TN was resuscitated and appeared normal - breathing, pink in colour, and able to breastfeed. The plaintiff and TN were discharged around 12h00-14h00 the same day. At six months, TN was diagnosed with cerebral palsy. Medical records, including antenatal records, clinic records, maternity case records, and Apgar scores were all lost by the clinic. Only an incomplete Road to Health Chart was available. The plaintiff sued the MEC for Health, North West Province, claiming vicarious liability for the nursing staff's alleged negligence in failing to attend to her timeously, failing to administer oxygen to TN, and failing to refer TN to a hospital or specialist.

• Whether the clinic nursing staff were negligent in their treatment of the plaintiff and TN
• Whether any negligence by the nursing staff caused TN's hypoxic ischemic injury and resultant cerebral palsy
• Whether the standard of care expected of nursing staff at a basic obstetric clinic was met
• Whether the plaintiff discharged the onus of proving negligence and causation

1. Condonation for the late filing of the appeal record is granted. 2. The appeal is upheld. 3. Each party is to pay its own costs. 4. The order of the Full Court is set aside and substituted with an order dismissing the appeal.

In medical negligence cases, the plaintiff bears the onus of proving both negligence and causation on a balance of probabilities. The standard of care applicable to nursing staff at a basic obstetric clinic is that of reasonable nursing staff in similar positions, not that of specialist doctors. Where a baby appears normal after basic resuscitation (breathing, crying, pink in colour, able to breastfeed) and no abnormalities are observed at discharge or in the immediate period thereafter, nursing staff at a primary healthcare facility cannot be found negligent for failing to follow specialist treatment protocols (such as oxygenation and 12-24 hour monitoring) unless evidence establishes that reasonable nursing staff in their position would have known such protocols were indicated. The fact that brain injury manifests only months later, without apparent symptoms at birth or discharge, suggests ongoing damage after birth and does not, without more, establish negligence at the point of care.

The Court strongly deprecated the loss of medical records by the clinic and its staff, noting that hospitals and clinics are legally obliged to keep records of minors until they reach majority. The Court observed that such failures reflect badly on the clinic, its staff, the MEC, and the department. While this did not affect the outcome on liability, it justified departing from the normal rule that costs follow the event, with the Court ordering each party to bear its own costs. The Court also noted that in the context of condonation applications for late filing of appeal records, the COVID-19 national lockdown and its effect on court operations and movement of legal practitioners constituted a valid explanation for delay during that period.

This case establishes important principles regarding medical negligence claims in the context of basic obstetric care at primary healthcare facilities in South Africa. It clarifies that the standard of care applicable to nursing staff must be assessed according to what reasonable nursing staff in similar positions and facilities would be expected to know and do, not according to specialist medical standards. The judgment emphasizes that proof of injury alone is insufficient - the plaintiff must prove both negligence and causation. The case also addresses the serious issue of lost medical records in public healthcare facilities and their impact on costs orders, establishing that where crucial records are lost by the healthcare facility, costs may not follow the event even where the claim fails, as a form of sanction against the department for failing to preserve essential evidence and comply with record-keeping obligations.