Authored by Deniro Pillay.
In August 2026, the Supreme Court of Appeal confirmed the dismissal of a claim against a provincial MEC for Health arising from brain injury sustained by a baby, which was detected after birth. The court found that the brain injury, which was diagnosed as cerebral palsy, was caused by a hypoxic-ischaemic injury sustained before the commencement of labour resulting from placental foetal vascular malperfusion (FVM). This condition arose from severe acute chorioamnionitis, accompanied by chronic vasculitis and funisitis, and had been asymptomatic in nature.
On 3 March 2019, the claimant, who was pregnant, suffered cramps and was taken to a provincial hospital. She was admitted and underwent a routine assessment by a nurse and then a doctor. The doctor advised that she was far from giving birth. The claimant was administered prescribed medication to induce labour.
From 4 to 6 March 2019, she underwent further assessments. The medical advice remained that she was still far from delivery and she received more medication to induce labour. The claimant complained of severe cramps and pain over these days.
On the morning of 7 March 2019, the doctor advised the claimant that he was surprised that she was still not in labour. The doctor examined her and artificially ruptured the membranes. The doctor advised the claimant that if she did not deliver the baby that day a caesarean section would need to be performed. During that night, she was assessed by a nurse who reported that she was still far from delivery. However, she was transferred to the labour ward, where a cardiotocograph (CTG) examination was done. No abnormalities were detected other than she had not delivered the baby. At some point that evening in the labour ward, the claimant was placed in the delivery position and instructed to ‘push’. She was not assisted by the nursing staff until one of the nurses attempted to deliver the baby with a vacuum extraction. The claimant was in pain and requested to be taken to theatre for a caesarean section. A doctor attended to her and delivered the baby, who did not immediately cry when he was born. The doctor advised her that the baby’s brain was damaged due to the prolonged labour. She was then taken to theatre to remove the placenta for testing. The baby was admitted to the high care unit where he had seizures. After more than 3 weeks, the baby was transferred to a private hospital where the brain damage was confirmed.
The claimant’s medical records were lost by the provincial hospital, except for her histology report, the blood gas analysis, a Magnetic Resonance Imaging scan and the CTG trace.
The claimant instituted a court action against the MEC, in her personal capacity and representative capacity on behalf of the baby, for damages of R28.2 million based on the allegation that the hospital staff were negligent in the care and treatment of her during her labour and the baby’s delivery, which caused the baby to suffer severe brain injury resulting in cerebral palsy.
The MEC limited the defence of the claim on the disputed issue of causation with the support of the expert medical evidence of a paediatric neurologist and an obstetrician. The MEC argued the baby’s brain injury was not preventable as severe acute chorioamnionitis typically progresses without symptoms. The histology and blood gas analysis indicated the presence of vasculitis and funisitis in the placenta, which confirmed the severity of the acute chorioamnionitis, and that the brain injury occurred prior to the onset of labour, but after 36 weeks of gestation. In the circumstances, the probable cause of the baby’s brain injury was not a prolonged second stage of labour, induced labour nor substandard monitoring of the labour, but rather acute chorioamniontis with vasculitis and funisitis, which predated labour and was asymptomatic. It was therefore undetectable by the hospital staff and not preventable.
The court decided that whilst the claimant established that the monitoring of the labour and treatment during the labour provided by the hospital staff was substandard, she did not prove that the staff’s negligence was the probable cause of the baby’s brain injury. The court found that the objective medical evidence, particularly the placental histology report and the umbilical-cord blood-gas analysis, supported the conclusion that the baby’s brain injury occurred before the onset of labour. The histology report confirmed severe acute chorioamniontis with maternal and foetal inflammatory responses, vasculitis and funisitis. The placental inflammation predated labour, impaired oxygenated blood flow to the foetus and caused the hypoxic-ischaemic injury.
This judgment illustrates that establishing substandard medical care on its own does not prove a claim against a defendant. A claimant must prove that the neglect of the defendant caused the harm suffered by the claimant, being the alleged injuries and consequent damages.
N K obo U K v MEC for Health Eastern Cape (805/2024) [2026] ZASCA 105 (4 August 2026)