The Constitutional Court reserved judgment last week 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 Gauteng High Court (Johannesburg), reports Mail & Guardian.
The applicant, Vivian Modianeng, was admitted to the hospital in 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 she 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.
“The applicant contends that the failure to monitor the foetus from 3.15am was negligent and that the omission was the cause of the applicant’s baby being born with cerebral palsy,” the case summary says.
Modianang took both Tembisa Hospital and the Gauteng MEC of Health to the High Court, which 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.
Before the Constitutional Court, Modianang is arguing that the full court erred in its ruling. 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 last week’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. “What contributed to the injury can’t be easily determined,” he said.
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