/ 18 August 2021

Constitutional Court to rule on leave to appeal in Tembisa Hospital cerebral palsy case

South Africa still has a way to go to achieve the UN's fourth Millennium Development Goal of reducing child mortality by two-thirds by 2015.

The Constitutional Court this week reserved judgment on an application for leave to appeal a finding that negligent omission by medical staff at Tembisa Hospital did not cause a baby to be born with cerebral palsy in 2009. The matter is on appeal from the Johannesburg high court.

According to a summary of the case sent to the media by the Constitutional Court ahead of Tuesday’s hearing, the applicant, Vivian Modianeng, was admitted to the hospital on 3 April 2009 to give birth, and transferred to the maternal labour ward so that nurses could monitor her. 

The next morning at 1.10am, medical records show that the woman was in active labour and the foetal heartbeat was monitored at 1.15am, 2.15am and 3.15am. After the check at 3.15am there were no further checks to monitor the foetal heart rate. 

“The applicant contends that the failure to monitor the foetus from 3.15 was negligent and that the omission was the cause of the applicant’s baby being born with cerebral palsy,” the case summary says.

“During the late stage of labour, at 4.45am, the applicant was examined by a doctor. She was diagnosed with cephalic-pelvic disproportion, meaning that the baby’s head was too big for the applicant’s pelvis. The applicant was booked in for a caesarean section, but gave birth naturally at 5.10am. The applicant’s baby suffered a hypoxic injury during the labour process, which caused him to be born with cerebral palsy.”

Modianang took both Tembisa Hospital and the Gauteng head of health to the Johannesburg high court and sought compensation, saying that hospital staff had caused her son to be born with cerebral palsy.

The court concluded that she had established the necessary causation to found her claim for damages against the respondents, and that the health department was liable to pay damages. The respondents then successfully appealed to the full court in the high court against the trial court ruling.

Before the Constitutional Court, Modianang is arguing that the full court erred in its ruling.

In her affidavit, Modianang said the staff failed to provide her with proper care during her labour 

“In particular, towards the late stages of my labour, the nurse and midwives failed to monitor the foetus for 1.5 hours. As a result of the medical staff’s negligent omission, Victor was born with cerebral palsy.”

Modianang said the hospital admitted its failure to monitor the foetus was negligence, but the dispute concerned whether the negligent omission resulted in her son’s cerebral palsy.

During Tuesday’s virtual hearing before Constitutional Court judges led by acting Chief Justice Raymond Zondo, counsel for Tembisa Hospital, Timothy Bruinders SC, submitted that there was nothing the institution’s staff could have done to prevent the baby’s brain damage.

“They didn’t need to perform the C-section, because they delivered before it could be performed. The event is estimated between 3.15am and 4.45am — it is not known when it happened. You could not do something in time to prevent brain damage. That’s the problem with an acute profound hypoxic event: the cause of the injury is the unidentifiable event. What contributed to the injury can’t be easily determined,” said Bruinders.

He said even if the foetal heart rate had been monitored well in those 30 minutes, the hospital staff could not have taken enough measures to prevent the brain damage suffered by the newborn.