“I find that the plaintiff failed to discharge the onus that rested upon her to prove their negligence,” appeal court Judge Constance Mocumie, who penned the judgment, said.

The woman first instituted a claim for “delictual damages” in the North West High Court in Mahikeng against the MEC, as the employer of the nursing staff at the clinic at the time.

The woman said the MEC was “vicariously liable” for the negligent conduct of the nursing staff who attended to her at the clinic after her admission.

She claimed the negligence had resulted in her baby developing cerebral palsy.

According to the woman, nursing staff at the clinic negligently kept the clinic closed the night before her admission on 16 December 2003, until after 08:00 the following day when she gave birth.

The woman said the nurses failed to attend to her baby properly and failed to administer oxygen to the little one when necessary for them to do so.

She also accused the nurses of failing to enlist a gynaecologist, a qualified doctor or other suitable specialists to examine and properly treat her baby.

The woman said she gave birth in a panel van without being monitored, or the assistance of nurses at the clinic.

But the SCA found that the High Court was correct that no evidence pointed to what steps the nursing staff could have taken, but failed to take.

The court also found that the “late diagnosis of brain damage which resulted in cerebral palsy, coupled with the many years that elapsed before medical experts could put the pieces together, worsened by the loss of critical medical records, resulted in this case being one of the most unfortunate cases to establish negligence and any causal link between the two and the injury [the child] suffered. The balance of probabilities favoured the nursing staff as it pointed that they did what they could do and as expected of a reasonable person in the circumstances”.

In her judgment, Mocumie said: “The ineluctable inference must then be drawn that, the fact that the damage was only picked up six months later, is an indication that the damage was ongoing after birth.”

According to the judgment, from the time the woman was discharged after giving birth until six months later, there “were no outward manifestations of any injury”.

“As no abnormalities asserted themselves at the clinic, it cannot be said that the nursing staff fell short of the standard of reasonable nursing staff in a position similar to them,” the judge added.

The Citizen