In SN obo ON v MEC for Health, Eastern Cape, the Supreme Court of Appeal (SCA) considered whether the hospital staff were negligent in failing to adequately manage and monitor a patient and her foetus during labour, and if so, whether this negligence caused the child’s brain damage.

The appellant, acting on behalf of the minor child, ON, brought a claim against the Member of the Executive Council for Health, Eastern Cape Province (MEC) for Health, Eastern Cape (the respondent), alleging that the hospital staff failed to properly monitor both the mother and the foetus during labour. This failure allegedly led to ON being born with hypoxic ischemic encephalopathy (HIE)—a condition resulting from sustained oxygen deprivation to the brain during labour.

The appellant argued before the High Court that the hospital staff failed to: perform accurate and appropriate monitoring of the foetal heart rate, maintain an accurate portogram, monitor the foetal heart rate with sufficient frequency, and detect signs of foetal distress.

ON's heart rate was monitored at 07h30 (142 bpm), 10h00 (138 bpm), and 12h00 (136 bpm), with no monitoring between 10h00 and 12h00. A labour summary indicated that the umbilical cord was wrapped around ON's neck at birth.

The High Court accepted the nursing staff's testimony that ON's heart rate was normal and that the cord around ON's neck was not tightly wrapped. On this basis, the High Court ruled that monitoring had been adequate and that the cord was not the cause of the injury.

On appeal, the SCA disagreed with the High Court. It accepted the expert evidence that the cord was likely the cause of the HIE and that foetal distress would have likely been detected with proper monitoring between 10h00 and 12h00.

In its reasoning, the SCA referenced MEC for Health, Eastern Cape v DL obo AL, where the court emphasised that circumstantial evidence and expert opinions are critical when assessing alleged negligence. In determining liability and causation, the courts must ask: "Whether the brain damage sustained by the [child] would have been averted if the hospital staff had properly monitored the mother and foetus and had acted appropriately on the results?" This is a fact-specific enquiry that requires consideration of all the circumstances of the case.

The SCA considered the medical records, nursing staff's testimony as well as expert testimony and held that it was clear on the probabilities that the injury was caused by the cord around the neck of ON. Such injury, according to expert testimony, could have been prevented by proper monitoring by the nursing staff to determine whether there were foetal heart rate decelerations. The SCA found the nursing staff's testimony unreliable, especially as the clinical notes lacked critical information.

The SCA held that hospital staff were negligent in failing to monitor the foetal heart rate during this critical period. This failure led to missed opportunity for timely intervention, which could have prevented the injury. Accordingly, the SCA found the MEC to be vicariously liable for damages caused by the negligent conduct of the hospital staff.

This judgment underscores that courts will closely scrutinise medical records and expert testimony in medical negligence claims. It further highlights the vital importance of accurate clinical note-keeping, which may be replied upon to establish whether there was adequate care of a patient (and the foetus).

Written by Victoria Campos, Partner & Roberto Brown, Candidate Attorney from Webber Wentzel