The Eastern Cape Department of Health has won an appeal against a mother who had previously successfully sued it for her baby developing cerebral palsy, allegedly during the birth process.

Relying on the expert opinion of two doctors in that province, the Eastern Cape High Court (Bhisho) earlier found that negligence and causation were proven on a balance of probabilities.

But a Cape Times report says the SCA has now overturned this.

The mother argued that if the monitoring of her labour had taken place according to the National Maternal Guidelines 2007, a change in the foetal condition would have been timeously observed and the delivery would then have been expedited, thereby preventing the brain injury that eventuated as a result of hypoxic ischemia.

The Health Department denied this.

In the appeal outcome, SCA Judge Mahube Betty Molemela noted the only evidence before the trial court was expert testimony by an obstetrician and a paediatric neurological radiologist.

‘Despite the fact that the monitoring of the foetal heart was not in strict accordance with the 2007 guidelines, the facts of this case, cumulatively considered, do not suggest that the nurse who attended to the respondent could, based on the monitoring, reasonably have foreseen that harm would ensue. Neither do they suggest that a reasonable health professional in the position of that nurse would have foreseen any reasonable possibility of harm ensuing and taken steps to prevent it.’

Full Cape Times report

Judgment