Neutral citation: NVM obo VKM v Tembisa Hospital and Another [2022] ZACC 11

Judgment

A child, VKM, suffered a serious brain injury that manifested in a form of cerebral palsy. The brain injury was caused by severe oxygen deprivation for a sustained period shortly before the baby was delivered.

VKM’s mother instituted a claim against Tembisa Hospital at which VKM was born, as well as the Gauteng Department of Health, for damages. In the Gauteng Local Division, Johannesburg of the High Court t, the claim was successful, but this claim was overturned on appeal by a Full Court of that Division.

VKM’s mother appealed to the Constitutional Court. The sole issue in the appeal was whether the conduct of hospital staff at Tembisa Hospital had caused the injury to VKM. The Hospital and Department conceded that the conduct in question, the failure to monitor foetal heart beat for approximately an hour and a half between 03h15 and 04h45 was negligent. At 04h45, VKM’s mother was examined and it was determined that the baby’s head was too large for the mother’s pelvis. A decision was taken to conduct a caesarean section. The caesarean did not take place and VKM was delivered naturally at 05h10.

VKM suffered an acute profound ischemic injury to the brain in the later stages of labour, known as hypoxic ischemic encephalopathy (“HIE“). The HIE developed into cerebral palsy.

As negligence was not disputed, the only issue in the High Court was causation.

The High Court found that the negligent failure to monitor the foetal heart beat meant the nursing staff were unable to identify signs of foetal distress, as they would probably have done with proper monitoring, and this negligent failure resulted in the denial of the correct treatment, and hence caused the brain injury.

On appeal, the Full Court of the High Court, found the court below had misapplied the test for factual causation. The Full Court considered the correct question to be: if there had been adequate monitoring, and the warning signs picked up, would there have been enough time to take measures that would have avoided the brain injury. The Full Court held that there would not have been sufficient time to take measures that would have avoided the brain injury, even if there has been proper monitoring, and so upheld the appeal.

In the Constitutional Court, the matter was determined on the question of appealability and not on the merits.

Rogers AJ, writing for the majority, held the leave to appeal should be refused. Justices Madlanga, Mhlantla, Theron and Tshiqi concurred in this judgment. Deputy Chief Justice Zondo, as he then was, wrote a separate judgment but also agreed with judgment of Rogers AJ. Justice Majiedt wrote a minority judgment in which Acting Justices Madondo, Pillay and Tlaletsi concurred.

The majority decision found the the appeal was only on a question of fact – whether or not the negligent conduct had, as a matter fact, caused VKM’s injury.

The minority judgment held that the question was a constitutional one because it implicated the rights to healthcare protected in s 27 of the Constitution and the obligation on the state to respect, promote and fulfil the rights in the Bill of Rights under s 7 of the Constitution. The minority also held that the s 34 right of access to court’s was violated when the Full Court purportedly relied on evidence from another similar case, and finally the minority held that the previous decision in Lee v Minister for Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC) which concerned the test for factual causation required clarification.

The majority however pointed out in respect of each of these grounds that:

1. It was not in dispute that VKM and his mother had rights to healthcare under s 27 and the State was obliged to respect, promote and fulfil those rights. Nothing in this case however turned on an interpretation or application of those rights, which turned only the factual question of causation.
2. The Full Court had not in fact imported facts from another court’s judgment, according to the majority, only referring to that court’s decision on a similar question. The reliance on this case also did not change the outcome of the Full Court’s decision, which the majority agreed, was wrong because it began its causation enquiry from the incorrect factual premise (whether there was sufficient time to take corrective measures from the time the alarm was in fact raised at 04h45, and not whether applying the correct monitoring would have resulted in the alarm being raised earlier). The fact that another court had taken a view on how long it would take to perform a successful caesarean which was referenced by the Full Court would not have corrected this error. The majority did however criticise the Full Court for adding confusion to its reasoning through its reference to the factual findings of another court.
3. The test for causation in Lee was not relevant to this matter, it had not been relied on or applied by the High Court or Full Court, and indeed the minority in the Constitutional Court had applied the conventional test as well. There was therefore no call to clarify the decision in Lee.

For these reasons the majority found the matter did not raise a constitutional issue or arguable point of law of general important and therefore did not fall within the Constitutional Court’s jurisdiction. Leave to appeal was therefore refused.

Oral Argument

The Constitutional Court jugment and lower court judgments

Judgment of Keightley J in the High Court

Judgment of the Full Court