The supreme court this week heard the heart-wrenching case of a mother suing her gynaecologist for allowing her extremely ill baby to be born. Pat Sidley and Annicia Reddiar report
‘THEY placed Alexandra on my tummy after the birth. Then a sister grabbed her and quickly took her to the furthest side of the room. She said: ‘Your baby has to go to ICU.’ “
A while later the new parents were told: the baby has spina bifida, a congenital disorder which leaves the child severely disabled.
She screamed at the gynaecologist: “How can you do this to Dennis?” Dennis, the father of the child, had a previous child who was so retarded that she had died at seven months.
Later she was told she had a choice. She could let the child die by not treating the condition, or she could have the child operated on and had been told there was a good chance of helping the child.
“At that point I asked to see Alexandra … Once I held her in my arms … she was very beautiful. She pushed her lips out in determination. There wasn’t really a
This was Michelle Friedman’s tale to the Rand Supreme Court as she explained to the judge what had happened that led her to sue her gynaecologist Dr David Glicksman for negligence.
He had been charged with the duty, according to Friedman, of seeing to it that she gave a “perfect baby” as her “gift” to the man she loved, Dr Dennis Rubel.
The case has been dubbed a “wrongful birth” case, in that Friedman is saying in essence that had she known the child would have been severely disabled, she would have had an abortion.
A blood test taken from her when she was about 15 weeks pregnant, had been processed by the laboratory and indicated a five-fold increase in the risk for spina bifida. This interpretation is being contested.
She is claiming from her gynaecologist all the expenses already laid out on Alexandra’s care (the child is now four years old) and all her future expenses.
Friedman also alleges that Glicksman should have been able to tell there was a significantly increased risk, after a blood test had raised the alarm, of her giving birth to a child with the condition, which would ensure that she was severely disabled for life. He should, according to her, have offered further blood tests to determine whether or not there was a risk, and if there was any further uncertainty, he should have done an amniocentesis test to determine whether there was, in fact, damage to the baby’s spine.
Glicksman who is contesting all her allegations, also says that as Friedman decided that the child should be treated (and not left to die), she had waived any claim she may have had against him.
In a chilling bit of evidence, Friedman explained to the court that she had asked how such children are left to die, if she should have to make the choice. She had had it explained to her that they may be left alone in a room and allowed to catch an infection (almost inevitable in an untreated case of spina bifida) and would then be allowed to die.
A paediatric surgeon, Peter Beale, who had operated on Alexandra, explained how choices of treatment are made. In the United States, he said, doctors are obliged by law to treat all cases. “In this country, there is a choice in deciding on the treatment. I advised that I thought we should treat the child.”
Much of the case is technical. Evidence has been led on the intricacies and fine balance in how calculations of risk are made in a blood sample taken, to see if there is an indication of a problem like spina bifida. This condition occurs when the spinal column is not properly sealed off in the foetus.
In this particular case, much will depend on what the actual age of the foetus was when the test was done, and whether there was indeed an increased risk of spina bifida in the foetus.
Much will also depend on how expert Glicksman was with his ultra-sound scanning equipment and whether he should have been able to see the problem in one of many ultra-sound scanning examinations conducted on the pregnant Friedman.
Evidence this week given by Dr Edward Coetsee of the University of Cape Town was intended to show that some expertise and skill in Glicksman was lacking, despite having said he did not want to be drawn into a battle on Glicksman’s competence.
Little information from the scanning examinations was recorded in Glicksman’s
“If someone doesn’t record his measurements, how does he look at his next scan, how do you then reflect on your next scan, how did he know that the baby had grown?,” Coetsee said.
Asked by Friedman’s advocate, David Soggot, whether a second scan without recording measurements was adequate for diagnosing problems in the foetus, Coetsee said it was “unusual and certainly not what I teach in my department”.
Glicksman’s impressive record of studying and experience was read out. Coetsee said this was, in the South African context, the qualification of a basic scanner.
He had earlier given evidence on several levels of scanning proficiency and noted that there was a problem about doctors and their continuing education.
All this was countered in the cross-examination process by suggesting Coetsee himself did not have the expertise.
A great deal revolves around what was, and what wasn’t in Glicksman’s notes made during the consultations. Aside from the ultrasound notes, a dispute revolves around whether Glicksman offered further test procedures to Friedman or not. This area of his notes had been written in a different pen, a fact which caused the judge to remark on it.
The case continues.