Mashele v The Member of the Executive Council for Health of the Gauteng Provincial Department [2022] ZAGPJHC 444 (27 June 2022)

This case involves Merry Jane Mashele (the plaintiff) acting in her capacity as the mother and natural guardian of her minor daughter, against the Member of the Executive Council for Health of the Gauteng Provincial Department (the defendant). The core of the dispute centers around the severe and permanent brain damage sustained by the plaintiff's daughter following her birth at Tembisa Hospital on November 28, 2012. The brain damage resulted in profound global developmental delay, microcephaly, and mixed cerebral palsy.

The plaintiff's daughter was born following a period of labour during which the plaintiff was admitted to Tembisa Hospital in the late afternoon of November 27, 2012. The birth was vaginal, and it is undisputed that the child suffered brain damage due to an acute profound hypoxic-ischemic injury (HII), which refers to brain damage arising from reduced oxygen supply. The contention lies in the timing of the injury; the plaintiff argues that the injuries occurred both before and after birth due to negligence on the part of the hospital's medical and/or nursing staff, while the defendant maintains that the only HII occurred several hours post-birth in the neonatal intensive care unit (NICU) and thus cannot be held liable.

The court had to determine the issue of liability, including negligence and causation, separately from the quantum of damages, which was postponed. The plaintiff needed to prove wrongfulness, fault (negligence), causation, and harm to succeed in her claim. The parties agreed on the plaintiff's standing to pursue the claim, the defendant's potential liability for damages if proven, and the duty of care owed by the medical personnel towards the plaintiff and her minor child.

The plaintiff's evidence detailed her health during pregnancy, the onset of labour, her admission to the hospital, the events leading up to the birth of her daughter, and the immediate aftermath, including the baby's condition and treatment in the NICU. The plaintiff's case also involved expert testimony from various medical professionals, including neonatologists, obstetricians/gynecologists, pediatricians/geneticists, radiologists, and nursing specialists, to support her claim of negligence both before and after the birth.

The defendant's case, supported by expert testimony from a neonatologist and an obstetrician/gynecologist, contested the plaintiff's version of events and the assertion of negligence. The defendant argued that the brain damage was caused by congenital pneumonia, not by the alleged negligence of the medical staff.

The judgment found the defendant liable for the damages arising from the hypoxic-ischemic injury that occurred postpartum in the NICU, attributing negligence to the failure of the hospital's medical personnel to prevent or adequately respond to the condition that led to the child's brain damage. The court did not find sufficient evidence to support the claim of an acute-profound HII occurring intrapartum (before birth) sufficient to result in the condition. The plaintiff was awarded costs related to the determination of liability, including the costs of obtaining and employing expert witnesses, but costs related to experts who testified regarding alleged intrapartum negligence were disallowed.

The ratio decidendi of this judgment is that a healthcare provider (in this case, the Gauteng Provincial Department's health services, represented by the Member of the Executive Council for Health) can be held legally liable for damages arising from medical negligence that results in harm to a patient, specifically when such negligence occurs in the postnatal care of a newborn leading to severe brain damage. The core legal principle underlying the decision is that for a plaintiff to succeed in a claim of medical negligence, they must establish on a balance of probabilities that the defendant's wrongful conduct (negligence) was both a factual and legal cause of the harm suffered.

In this case, the court found that the defendant's medical personnel failed to take reasonable steps to prevent a hypoxic-ischemic injury (HII) in the neonatal intensive care unit (NICU), which was foreseeable and preventable. This failure constituted negligence that was directly causative of the profound global developmental delay, microcephaly, and mixed cerebral palsy suffered by the plaintiff's daughter. The judgment underlines the importance of healthcare providers adhering to a standard of care that prevents foreseeable harm, especially in the sensitive context of neonatal care, and underscores the legal accountability of healthcare providers when their failure to meet this standard results in injury.

In its reasoning process, the court referred to several key cases to elucidate the principles of negligence, causation, and the standard of care expected from healthcare providers. Notably, the judgment referenced:

1. Oppelt v Department of Health, Western Cape [2016] ZACC 6: This case is significant for its discussion on the elements of negligence, particularly in the context of medical negligence. It clarifies the standards against which a healthcare provider's actions are to be measured, underlines that the test for negligence must be adapted for medical professionals, where the question is whether a reasonable medical professional would have foreseen the harm and taken steps to prevent it.

2. International Shipping Co (Pty) Ltd v Bentley [1990] ZASCA 95: This case is cited for its exposition on the 'but-for' test for factual causation, explaining that the test is designed to determine whether the defendant's conduct was a necessary condition for the occurrence of the harm.

3. Minister of Safety and Security v Van Duivenboden [2002] ZASCA 108: This case is referenced for its discussion on the principles of factual causation, particularly the notion that a plaintiff need only establish that the defendant's wrongful conduct was probably a cause of the loss.

4. Minister of Finance and Others v Gore NO [2006] ZASCA 98: This case is cited for its elaboration on the application of the 'but-for' test, stressing that the inquiry into causation is not a strictly scientific or philosophical one but rather a matter of common sense based on the practical way in which the ordinary person's mind works.

5. Robinson v Randfontein Estates Gold Mine Co Ltd [1925] AD 173: This case is significant for its statement on the purpose of pleadings in litigation, highlighting that the object of pleadings is to define the issues, and the court has discretion to keep parties strictly to their pleas where deviation would cause prejudice or prevent full inquiry.

6. EC Chenia and Sons CC v Lamé and Van Blerk [2006] ZASCA 72: This case is referenced for its discussion on the admissibility of evidence that goes beyond the pleadings, particularly the principle that a party cannot be allowed to benefit from its failure to object to such evidence during the trial.

These cases collectively provide the legal framework within which the court assessed the claims of medical negligence, causation, and the appropriate standard of care, ultimately guiding the court's decision-making process in finding the defendant liable for the harm suffered by the plaintiff's daughter due to postnatal medical negligence.