Cape Town - A Cape Town mother is asking the Western Cape Health Department and MEC for more than R38 million in damages, claiming staff at Tygerberg Hospital were allegedly negligent during her daughter's birth which resulted in her being diagnosed with cerebral palsy and has impacted their lives extensively.
Nolitha Kamana of Khayelitsha is fighting for damages for both herself and her daughter Sihle, who was born on September 11, 2008 at Tygerberg Hospital by Caesarean section.
At the request of their legal representatives, images of the family may not be shared in order to protect their identities, as the child is now 16 and living with a disability.
The mother is claiming damages for loss of income for herself and for her daughter's lifelong medical condition, care and therapy.
Kamana, via her lawyer Tzvi Brivik, director of Malcolm Lyons & Brivik Inc, claims staff were negligent in their midwifery treatment, supervision and care.
Brivik said this case was an illustration of the spectrum of cases being pursued by their firm against the health department and ministry, all premised on alleged negligent care provided.
“In the matter of Kamana, liability has been accepted,” he said.
Dwayne Evans, for the Provincial Health Department and MEC's Office, said they were legally bound not to comment on the matter.
“The Western Cape Department of Health and Wellness can confirm that we are aware of the matter.”
In a recent media publication, advocate Ronel van Zyl, a senior state law adviser at the South African Law Reform Commission, said cerebral palsy-type claims accounted for nearly half of all medico-legal claims in South Africa.
Last month, the Weekend Argus reported that in the past four years, the National Department of Health had coughed up R23.6 billion following medico-legal claims across the country, while in the Western Cape 270 claims have been paid with a whopping R501m price tag and R34m for legal costs.
Medico-legal battles continue at the Supreme Court of Appeal and Western Cape High Court involving mass claims of gross negligence, misdiagnosis and specifically cases relating to obstetrics and gynaecology, where infants were left with cerebral palsy and women with medical complications and conditions after birth.
According to the mother's case against the minister and the hospital, they had failed to recognise the signs and symptoms of abruptio placenta (the early separation of a placenta from the lining of the uterus before the completion of the second stage of labour), to monitor the foetal heart rate continuously or monitor uterine contractions and to recognise the signs of foetal distress.
They also claimed staff failed to arrange for urgent medical and specialist medical advice or to carry out or arrange immediate intervention on the form of intrauterine resuscitation and to provide urgent delivery by means of Caesarean section.
They said as result of the health sector's alleged actions, the baby had suffered cerebral palsy associated with developmental delay and suffers from focal epileptic seizures (seizures affecting one side of the brain and body) today.
For the suffering of Kamana as the mother and guardian of Sihle and for past medical costs, they are asking R200 000. In total for loss of income, Kamana is asking for R1 586 100.
The total cost for damages is set in two parts for both plaintiffs, including physiotherapy, speech therapy, occupational therapy, an adapted vehicle, the modification of their home and loss of income of R23 656.600 and R14 750 000, totalling over R38 406 600.
Kamana was admitted to hospital on September 20, 2008 and was induced.
Her obstetric history was included into the case to show the impact of trauma she had suffered after an infant of hers had neonatal death following foetal distress, and an infant female whose delivery was complicated by shoulder dystopia.
Kamana herself was deemed as being morbidly obese and suffered from hypertension.
By September 11, 2008, Kamana suffered a spontaneous rupture of her membrane, and blood-stained fluid was draining from her body.
“At 9pm it was noted that there were no contractions, and an hour later the abdomen became hard, tender and bleeding,” the court papers read.
“The foetal heart heart rate was noted at 109 beats per minute and face mask oxygen was started.”
The document states that a doctor, whose name is withheld for legal reasons, was called to perform an artificial rupture of membranes and to clear liquid that was draining and the cervix was fully dilated.
Vaginal blood clots were noted and a diagnosis of a possible abruptio placentae was observed and an emergency Caesarean section scheduled.
The C-section began at 11.50pm and at 11.58pm Sihle was delivered and weighed 3 480 grams. Her Apgar (health outlook) score of 2.4 and 6 and she was cyanotic (blue at extremities), with a weak pulse.
On May 9, 2009, a few months after delivery, Sihle had a focal brain seizure and was diagnosed with hypoxic ischaemic encephalopathy and an ECG study showed major cortical injury.
This happens when an infant does not receive enough oxygen or blood flow around the time of birth.
Brivik said as a result of the negligence of the treating doctor and nurses, his client suffered a focal brain injury caused by lack of oxygen to her brain.
She was subsequently diagnosed with intellectual impairment.
"As a result of the developmental delay and the cerebral palsy she will require lifelong treatment and care, this treatment includes assistive devices, occupational therapy and 24-hour care around the clock as well as enormous amounts of chronic medication.
“Her parents have devoted their lives to her; the mother even left her job. They have very little means to support themselves and care for her special little daughter.
"It is the responsibility of the state to place the family in a financial position such that they are able to provide the care that their daughter requires at a private institution. At this stage of the litigation the state has accepted this obligation and we are finalizing the claim in so far as the amount is concerned,” Brivik said.