High court dismisses negligence claim due to missing medical records

Mahikeng high court dismisses appeal by mother of boy born with cerebral palsy as she could not provide facts to support her claim due to missing records

A mother’s attempt to claim for medical negligence as her child was born with cerebral palsy was dismissed by the high court as medical records to prove her case had disappeared.

The mother, referred to as KCM, had appealed to the Mahikeng high court as judge Andre Pietersen had previously dismissed her claim before the same court, ruling that negligence could not be found due to the missing medical records.

In her appeal application, KCM argued that the staff at two health facilities, Moshana Clinic and Lehurutshe Hospital, were negligent when delivering her baby, referred to as Baby R, in 2008.

KCM fell pregnant with her first child in December 2017 and made visits to Moshana Clinic in Witkleigat in North West for prenatal care, which confirmed the baby was in a healthy condition.

In September 2008, she was admitted to the clinic when she went into labour, and was examined every two hours by nurses who inserted unknown medical instruments into her genitalia. The same medical treatment was repeated at 1pm that day. Three hours later, KCM’s mother requested that she be transferred to a hospital after contacting KCM’s aunt, who was a nurse at a hospital.

KCM, however, remained in the clinic's delivery ward waiting to be transferred, which happened at 7pm when she was taken to Lehurutshe Hospital in Zeerust 60km away by ambulance.

When she arrived at the hospital, her file was handed over to medical staff. This was the last time the mother saw her file, she argued.

After waiting for 20 minutes, KCM was taken to the delivery room and when Baby R was delivered, the infant made no sound and did not cry. The baby was placed on oxygen and it was found that some meconium liquid was present and the baby’s Apgar score was 5/10.

KCM said she was not given any information on the condition of her baby and the two were discharged from Lehurutshe Hospital a week later.

After Baby R’s birth, KCM was told by the hospital that her file could not be found, the court heard.

In the meantime, she took her baby to the clinic three times over the first six months for routine check-ups but noticed that the baby would shake while sleeping at night. She took her son to the hospital to report the shaking and was informed that Baby R had cerebral palsy.

Due to this, KCM issued a summons to the North West health MEC to claim compensation for Baby R's injury, stating it was caused by the health department staff's negligence.

According to her plea, the nursing staff at Moshana Clinic failed to monitor the progress of her labour and to timeously refer her to the hospital. She argued that the medical staff and doctors at Lehurutshe Hospital failed to adequately monitor, assess and manage the labour to safeguard the unborn baby and to give her medication and proper medical treatment. She told the court the nursing staff failed to take steps to avoid the complication before, during and after the birth.

In response to the summons, the provincial health department denied liability for cerebral palsy, stating there was no negligence on the part of the hospital staff.

The department argued that the hospital rendered the best service it could, based on the available resources. In addition, should the court find that the unborn baby was inadequately monitored, this did not causally link to the cerebral palsy suffered by Baby R.

KCM's legal team said it was incorrect for the court to have accepted that the medical records were missing and should have instead found that they were withheld by the health department. It said the department’s deputy director of litigation, Mr Maabela, confirmed that he was in “possession or power” of the documents relating to the matter.

The court should have found that the missing records could not solely be used to support an argument that KCM could not prove negligence and that the health department could not hide behind the fact that the records were missing, her lawyers argued.

However, the health department’s counsel confirmed that the records were missing from the two health facilities and that they were actually found in KCM’s possession.

This after evidence was brought by a health official, Dr Mosimane, who confirmed that a diligent search for the medical records was conducted which led them to the “incredible” finding that the records were actually with KCM.

Upon realising this, the health department requested copies of the records, which were submitted by the mother on August 19 2019. However, crucial information was missing from the files and possession of the medical records by KCM was suspicious.

Acting judge Andrew Reddy said there was no evidence that the mother secretly took the medical records as she shared copies with the department on their request, and neither could it be said that the department withheld the records.

“While there exists a dearth of authority on missing medical records, relevant case law can only find application within the four corners of a factual backdrop. It was not found that [KCM] had been instrumental in securing the medical records furtively nor was it found that the defendant had acted mala fide in the withholding of the medical records of the plaintiff. Nothing further needs to be said.”

Further, expert witnesses including paediatricians, obstetricians/gynaecologists and other medical experts could not provide accurate testimonies without being provided with the medical records.

While the previous court held that any consensus reached by expert opinion on the cause of the cerebral palsy of Baby R is confined by the missing records, Reddy agreed to such a finding.

“While there may be a positive duty on the [health department] in appropriate circumstances to react in the absence of medical records, this should not be conflated with the burden of proof which squarely rests on [KCM].”

The appeal was dismissed with costs.

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