Johannesburg – The Constitutional Court will this month hear a case involving a child who suffered brain damage at the notorious Tembisa Hospital, east of Gauteng.
Mpho Mofokeng*, who works as a general worker at a plastic-manufacturing company, gave birth at the facility in April 2009.
She claims in her court papers that staff at the hospital failed to provide her with sufficient care.
Her main argument is: “The hospital staff failed to provide her with proper care. In particular, towards the late stages of her labour, the nurses and midwives failed to monitor the foetus for 1.5 hours [from 3h15 to 4h45].
“I sued the respondents in my personal capacity and on behalf of Tshepo*. The respondents rightly conceded that the failure to monitor the foetus from 3h15 was negligent. The only dispute was whether that negligent omission caused Tshepo’s cerebral palsy,” the affidavit reads.
Cerebral palsy is due to abnormal brain development, often before birth.
Symptoms include exaggerated reflexes, floppy or rigid limbs and involuntary motions At dispute is whether the delay in monitoring the foetus caused Tshepo’s brain injury.
The matter was first ventilated at the Joburg High Court in 2017, where the presiding judge found in favour of Mofokeng and ordered damages be paid to her.
The trial court held that staff’s negligent failure to monitor the foetal heart rate during active labour caused, or materially contributed to the harm suffered by Tshepo.
The hospital and the Gauteng department of health then approached the court for leave of appeal, which was denied. However, the hospital and the department then petitioned the Supreme Court of Appeals (SCA), which allowed the parties to appeal the decision.
The matter then came before the full bench.
The full bench overturned the decision of the trial court and found that while it was undisputed that the hospital was negligent, Mofokeng had not shown that the negligence caused the child’s condition.
Mofokeng petitioned the SCA to appeal in March 2020, but the request was denied, forcing her to approach the apex court in the land.
Tembisa Hospital and the department in their answering affidavit before the Constitutional Court maintained they could not be held liable for Tshepo’s injuries. “Even if the insult occurred before 4.40, brain damage would have set in after 10-30 minutes of its occurrence.
The obstetricians agreed.
“Here, a C-section could not be performed in time to prevent brain damage,” the affidavit reads. This is not the first time Tembisa Hospital has been found wanting. Health Ombudsman Prof Malegapuru Makgoba early this year found that Shonisani Lethole did not eat for 100 hours and 54 minutes while at the facility. He was probing the allegations of gross negligence against hospital staff, which led to the death of 34-year-old Lethole in June 2020.
* Not their real names.
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