Illustration. Dorothy ML
According to the expert, the child had suffered permanent brain damage due to asphyxia. The birth asphyxia in this case was attributed to obstructed labour.
This was a condition that could have been avoided had the labour been properly monitored, the expert concluded.
On May 27, 2007 a woman checked into a prestigious hospital for induction of labour. She had regularly been attending antenatal services in that hospital since February that year. Upon admission she was induced into labour but without any positive results.
The patient was later to allege that during the induction she was left without any proper attention at all; that the health workers did not monitor her labour with due care and attention and left her all alone in the delivery room, which she considered grossly negligent.
Two days after her admission, on May 29, her pains intensified without the labour progressing whereupon she demanded to see the doctor on call, but no doctor came to attend to her.
Later that afternoon a doctor came to see her and ordered that she should be rushed to theatre for an emergency caesarean section that resulted in a baby boy being delivered. The baby was, however, found to have suffered severe birth asphyxia.
The child, in critical condition, was transferred to another hospital with better facilities and was initially admitted in the High Dependency Unit and then moved to the Intensive Care Unit after two days when his condition worsened, where he remained for 10 days.
He was to spend a total of 24 days in the hospital he was transferred to. After being discharged, the child was referred to a specialist who diagnosed him with a condition known as cerebral palsy.
Cerebral palsy is a condition of permanent brain damage that results in abnormal movements of the patient, and these appear in early childhood. The condition is caused by abnormal development or damage to the parts of the brain that control movement, balance and posture.
More often the problem occurs during pregnancy but may also occur during childbirth, especially during a difficult delivery or head trauma during the first few years of life. Signs and symptoms of the disease include poor coordination, muscle weakness and babies with the disorder do not sit, crawl or walk as other children. Other symptoms may include cognitive impairment, which may manifest as defects in thinking and reasoning.
On April 3, 2009, before the expiry of the mandatory three years for filing such civil cases, the mother of the baby instituted legal proceedings against the hospital. She filed the suit on her own behalf and on behalf of the baby.
It was the mother’s case that the hospital was guilty of medical negligence when the health workers employed by the hospital failed or neglected to use reasonable care, skill and diligence when she went into labour. She also made a claim for pain and suffering that she and her baby underwent and continued to suffer.
Two medical experts gave their opinions about the case. One professor told court that had the labour been monitored as normally expected the caesarean section should have been done much, much earlier and the baby would probably have been born healthy.
The attending obstetrician erroneously indicated that the patient had an adequate pelvis to deliver the baby where else not. The medical staff did not monitor or observe the patient every 30 minutes as mandated and, therefore, failed to alert the doctors that the labour was not progressing as expected.
To the expert the child had suffered permanent brain damage due to asphyxia. The birth asphyxia in this case was attributed to obstructed labour. This was a condition that could have been avoided had the labour been properly monitored, the expert concluded. The second expert gave an independent opinion after examining the child and the records of the birth. His opinion was that the child had suffered a major cerebral palsy, likely from asphyxia and would remain dependent for life.
The hospital initially denied all of the allegations labelled against it and resisted any claim for damages as pleaded by the complainant. However, when the case came up for hearing the hospital and the complainant entered a consent judgment save for the damages. That hospitals owe their patients a duty of care is now settled in law. When negligence is identified, the facilities are liable for the negligence of the persons they employ.
Court ruled that when one surrenders himself or herself into hands, they believe to have the relevant facilities, expertise, knowledge and experience to undertake the expected services, their legitimate expectations should be met.
Nothing short of this should be expected of any facility that opens its doors to offer such services, especially at a fee. In this instant case, the expectations of the complainant were not met. Negligence was therefore established against the hospital.
The court considered the evidence of an expert and that of the mother to award costs in this case. The doctor’s report indicated that the child required medication to alleviate pain due to brain damage. The doctor also told court that the child was not mobile and that he needed physiotherapy and that he was wheelchair-bound for life. The wheelchair would need to be changed as he grew older.
He was no ordinary learner; he needed a special school which was expensive. He needed to be driven to school every morning by car and he needed to be accompanied by a caregiver. The purpose of the school was to assist him have a social life and to improve the quality of his life.
The testimony in court of the mother of the child was heart rendering. To her it had been nine years of suffering and expenditure. The condition of the child resulted into the father of the child walking out of the home and abandoning them. She was left to look after the child single-handedly. There were always going to be expenditures related to the child’s condition as long as the child lived. The child was dependent for life but more painfully unable to enjoy meaningful life. The medical expenses had been very expensive; more so he would need a care-giver and therapists for the rest of his life.
Court observed that there was no likelihood of stopping these needs as long as the child lived. Court awarded the mother the following:
• Cost of speech, occupation and therapy
• Cost of schooling
• Cost of personal hygiene
• Costs of medical consultation and medications
• Costs of adaptive equipment
• Costs of hiring a caregiver
In addition, court also awarded the mother and child general and special damages.
