A Muslim couple is suing the department of health in the Western Cape for R5-million after their baby daughter became infected with HIV under mysterious circumstances at one of two leading paediatric hospitals.
The unprecedented action has major ramifications for hospital health regimes, as well as for other parents in the same predicament.
The parents, who are both HIV-negative, say in papers in the Cape High Court that their three-year-old daughter contracted the virus either at Mowbray Maternity hospital, where she was born, or at the Red Cross Children’s hospital, to which she was transferred for surgery.
”Baby A” — as the papers refer to her — is one of 14 children, all with HIV-negative parents, documented by the March 2004 South African Medical Journal as having contracted unexplained HIV infections in hospitals.
The journal rules out infection by parents, breastfeeding, blood transfusions or sexual intercourse as causes of infection. It concludes that ”there is
an urgent need to re-evaluate and improve infection practices in health care settings”.
According to Baby A’s lawyers, Wits University’s Aids Law Project, the journal’s study highlights the risk of HIV transmission in hospitals, which needs to be recognised and managed.
Last week the Mail & Guardian visited Baby A at her Cape Town home.
Dressed in a navy-blue jersey and jeans, the plump toddler looked quite normal — belying the fact that she has been on anti-retroviral drugs for most of her short life. Her ”viral load” is currently undetectable.
Her mother was only 19 when she gave birth and the strain of raising an HIV-positive child has taken its toll. Living in a conservative Muslim community, the family is careful to keep the child’s health status under wraps.
The parents say they are taking court action to ensure the baby’s quality of life and to alert other couples. ”We want to create awareness so that this does not happen to others,” said the 22-year-old father.
The exact time and circumstances of Baby A’s HIV infection are unknown, but court papers argue that it either occurred at her birth on March 25 2001 in Mowbray Maternity hospital, or days later when she underwent surgery at the Red Cross Children’s hospital.
On July 3 2001 she became ill and was readmitted to the latter hospital. Told that she had pneumonia and would not survive the night, the parents were advised to bring a priest to pray for her. The next day Baby A miraculously pulled through.
But a fortnight later she was tested for HIV, and the result was positive.
”I was shocked,” said the father, who said he had heard about HIV/Aids but had never thought it would affect his family. Both parents have tested negative for the virus.
As Baby A’s father is jobless, the couple were worried that they could not afford anti-retroviral drugs for the child. The Red Cross Children’s hospital agreed to supply free anti-retroviral drugs, but has not agreed to the costs of CD4 tests, conducted every six months to monitor the child’s immune system.
The parents claim the department and Western Cape minister of health Pierre Uys were negligent in failing to take reasonable steps to reduce or avert the risk of infecting Baby A with HIV. They claim the health department failed to implement policies regulating the conditions of HIV-positive hospital workers and surgeons performing exposure-prone procedures.
The parents also allege the department and the minister failed to educate health workers on how to manage their HIV-positive status; to take steps to avoid needle-stick injuries of patients by health workers; to ensure that all instruments used in medical procedures were sterilised; and to give post-exposure prophylaxis to Baby A.
Lawyers for the baby argue that HIV transmission did not take place through sexual intercourse, transfusion of blood, breastfeeding, or from her mother. In addition to potential needle-stick and contaminated medical instruments, they raise the possibility that the baby was infected by a patient at one of the two hospitals.
Baby A did have a blood transfusion during surgery, but the donors were traced and tested HIV-negative.
Said Liesl Gerntholtz, an Aids Law Project advocate: ”We believe other routes of transmission have been conclusively excluded. The only way the child could have been infected was through the hospitals’ failure to have adequate policies in place and to ensure staff are educated about the risks.”
Responding, the government’s court papers say this application is ”vague and embarrassing” and that there is no allegation of a ”causal nexus” between an alleged failure to implement policy and the transmission of HIV to Baby A. ”It is not clearly alleged that Baby A contracted HIV at either Mowbray or Red Cross.”
Gerntholtz said the case is an important one. ”We are not suggesting there is a serious risk and that parents should be concerned their child may be infected during every hospital admission. But we cannot ignore that a baby appears to have been infected while in hospital — and that this will have a very serious impact on her future.”
The R5-million damages are designed to compensate Baby A for emotional and physical trauma; the likely reduction of her life expectancy; the fact that she will require lifelong medical treatment and testing; the likely future deterioration of her health; the adverse impact on her sex life; and the fact that she will not able to bear children without medical intervention.
Despite their pain, the couple insisted they still had faith in the hospitals, and had found the nurses and doctors supportive. Nevertheless, the father said he did not want another child, as this would be unfair to Baby A. He added: ”Eventually I’m going to have to tell my daughter what happened to her. I’m dreading the day.”
The state attorney representing the department of health and provincial minister of the Western Cape could not comment on the case at this stage.