Vuyiseka Ntlekwa obo Mhlengi Ntlekwa v Member of the Executive Council for Health, Eastern Cape Province

The plaintiff's son, M, was born on 3 July 2012 at Isilimela Hospital, Port St Johns, after a prolonged labour. The plaintiff, aged 25 at the time, had previously delivered a child. Medical staff administered oxytocin for uterine stimulation but failed to perform continuous electronic foetal monitoring (EFM) or cardiotocographic (CTG) monitoring to detect tachysystole. The plaintiff was 6 cm dilated at 19h00, fully dilated by 20h00, and delivered M at 20h30. M presented with low Apgar scores, required resuscitation, and developed hypoxic ischaemic encephalopathy (HIE). MRI scans revealed a peripartum hypoxic ischaemic injury (HII) to the brain. M subsequently developed spastic quadriplegic cerebral palsy with developmental delays, inability to speak properly, walk normally, or care for himself independently. The defendant conceded negligence but contested causation.

• Whether the negligent conduct of the medical staff was the factual cause (conditio sine qua non) of M's brain injury and resulting cerebral palsy
• Whether the 'but-for' test for causation was satisfied on a balance of probabilities
• Whether M's clinical presentation (cerebral palsy versus autistic spectrum disorder) affected the causal link between the negligent conduct and the brain injury
• The proper approach to conflicting expert medical evidence
• The binding effect of joint expert minutes on parties

The defendant was held liable for damages in the plaintiff's representative capacity arising from negligent management of labour and delivery on 3 July 2012. Quantum was postponed for later determination. The defendant was ordered to pay the plaintiff's taxed party-and-party costs on Scale C, including qualifying fees of expert witnesses Dr Kara, Dr Wright, and Dr MacDonald, with 14 days to pay after taxation, thereafter with interest at the prevailing legal rate.

In medical negligence cases, factual causation is determined by the 'but-for' test: whether, on a balance of probabilities (not absolute certainty), the plaintiff's harm would not have occurred but for the defendant's negligent conduct. Where experts prepare joint minutes recording agreed facts and opinions, parties are bound by these agreements unless clearly and timeously repudiated; the court is entitled to rely on such agreements as establishing the factual matrix. When assessing conflicting expert opinions, courts must examine whether the opinions are founded on logical reasoning and how they stand in relation to each other viewed in light of the probabilities, rather than making simple preference choices. An expert opinion that contradicts unrepudiated joint expert findings, and where the expert ultimately concedes key points supporting the opposing view, will not prevail over an opinion consistent with the cumulative body of expert evidence. In birth injury cases, causation can be established where expert evidence demonstrates, on probabilities, that sub-standard obstetric care (including inadequate monitoring, failure to perform caesarean section when indicated, and injudicious use of oxytocin) caused a peripartum hypoxic ischaemic injury resulting in brain damage.

The court noted its preference for the approach in NK v MEC for Health, Eastern Cape Province regarding claims in personal capacity, stating that where no factual matrix has been developed to support a plaintiff's personal claim (as distinct from the representative capacity claim), such claim cannot succeed. The court also observed that the diagnosis debate (cerebral palsy versus ASD) risked obscuring the primary causation issue, noting that at best for the defendant, the child's cerebral palsy might also display features of ASD, but this does not detract from the finding on causation. The court commented that it would be rare for a court to reject genuinely held expert opinions as unreasonable, and this should only occur where the opinion cannot be logically supported at all.

This case demonstrates the application of the 'but-for' test for causation in medical negligence cases involving birth injuries. It affirms that causation need only be proved on a balance of probabilities, not with absolute scientific certainty. The judgment emphasizes the binding effect of joint expert minutes on parties, following Bee v Road Accident Fund, and confirms that such agreements can only be departed from if clearly and timeously repudiated. The case illustrates how courts assess conflicting expert medical evidence, following the approach in Michael v Linksfield Park Clinic, by examining logical reasoning rather than making simple preference choices. It demonstrates that concessions made by expert witnesses under cross-examination can be determinative. The judgment also clarifies that where a plaintiff sues in both representative and personal capacities, separate factual matrices must be developed for each claim. The case is significant for medical negligence practitioners in showing how cumulative expert evidence can establish causation even where one expert expresses doubts about the clinical presentation matching the established mechanism of injury.