Mom seeks justice over brain-damaged baby

A MOTHER whose Caesarean section was delayed at the Charlotte Maxeke Johannesburg Academic Hospital, allegedly resulting in her child being born brain damaged, is set to take the matter to the Constitutional Court.

Identified in court papers as TM, the mother is seeking to have the Gauteng Health MEC held accountable for negligence on the grounds that the hospital excessively delayed performing the C-section. Her child was born at the hospital in August 2010. Legal proceedings commenced in 2014.

The South Gauteng High Court in Joburg ruled in her favour in 2018, finding that staff at the Charlotte Maxeke were negligent in delaying the C-section.

“This poor management led directly to the delay in attending to the plaintiff, with the resultant injury to baby M,” the court ruled.

The department took the matter on review to the Supreme Court of Appeal and won in August last year.

Appeal Judge Owen Rogers found that TM’s evidence did not prove that the baby’s brain was damaged because of the delay in performing a C-section.

“My ultimate conclusion, therefore, is that despite the tragedy that befell Ms TM and MM, they were not entitled to compensation from the appellant,” he said.

In papers filed at the apex court, TM’s attorney, Johannes Coetzer, submitted that enough evidence was deposed to prove negligence and liability.

Coetzer stated that TM was admitted to the labour ward shortly after 1pm on August 28, 2010.

A Cardiotocography machine, used to monitor foetal heart rate and uterine contractions, picked up at about 3.45pm that there was foetal distress.

“All of the experts in this matter agreed that, at this point, an emergency C-section would be necessary,” said Coetzer.

“The decision to perform a C-section was taken at 4pm. The C-section was only performed approximately 2½ hours (155 minutes) later.

“The experts agreed that this delay meant that the baby was in distress for significantly longer than was regarded as acceptable. The maximum time within which the C-section ought to have been performed was 60 minutes. It should have been performed sooner, if possible.

“As soon as the need for a C-section arose, the case should have been treated as an emergency and the surgery performed without delay,” Coetzer added.

He said TM’s C-section was delayed because the theatre was being used for other patients, a situation he blamed on a backlog that “resulted from mismanagement of hospital resources earlier in the day”.

“It is no answer for the hospital to say it had limited resources,” he said.

“Even accepting that this is the case, the point is that if the hospital staff had managed the resources of the hospital efficiently, the position would have been different.”

In papers detailing grounds of opposing, State attorney Cambridge Morodi submitted that the SCA was correct in finding that TM failed to prove that the C-section delay caused her child’s cerebral palsy.

He said TM could not prove that the brain injury did not happen over a long period of time and speeding up labour could have prevented the cerebral palsy.

“I further submit that it is not in the interest of justice for leave to be granted in this case, in particular (because) it does not raise an important issue, nor is there a public interest in having it determined,” said Morodi.

The Constitutional Court will hear the matter on February 15.