In December 2019, the Durban High Court rejected expert evidence attempting to introduce a third type of hypoxic ischemic injury as the basis for a damages claim by a child born with cerebral palsy.

A hypoxic ischemic event is caused by a lack of oxygen or a lack of blood flow in the brain which causes damage to the brain. It is generally accepted that hypoxic events can either be acute profound or partial prolonged in nature; the former occurs when there is a sudden and complete deprivation of oxygen while the latter denotes partial oxygen deprivation over a longer period of time. Partial prolonged and acute profound hypoxic injuries cause damage to different parts of the brain and accordingly one can determine from an MRI scan which type of hypoxic injury has occurred.

In Zodwa Shange obo Mlondli Shange v MEC for Health KZN, Ms Shange claimed damages arising out the alleged negligence of the medical staff at a provincial hospital which resulted in her child, Mlondli, suffering from cerebral palsy.

Ms Shange was admitted to the hospital on 8 April 2008. During the course of the afternoon or early evening, she was scheduled for a non-emergency caesarean section. Ms Shange only reached full dilation between 23:00 and 24:00 the same day. At 24:00, the hospital’s operating theatre was busy with an emergency procedure and accordingly Ms Shange went into theatre within 15 minutes after the completion of that operation. She gave birth by caesarean section at 02:05 on 9 April.

Ms Shange’s version was that during the afternoon or early evening on 8 April, she was seen by an attending doctor in the labour ward. The doctor advised that the baby was ‘tired’. Ms Shange’s expert obstetrician and gynaecologist testified that this indicated foetal distress and Ms Shange should have undergone an emergency caesarean section within an hour, failing which the foetal distress would lead to permanent brain damage.

To deal with the fact that the MRI showed that Mlondli had suffered an acute profound hypoxic ischemic injury, Ms Shange’s expert radiologist and paediatrician both gave evidence of the possibility of a third type of hypoxic ischemic injury, a sub-threshold hypoxia, which is neither partially prolonged nor acute. Their evidence was that, unlike partial prolonged or acute profound injuries, a sub-threshold hypoxia cannot be seen on an MRI.

The function of experts is to assist the court.

The court found that, if the child had suffered foetal distress, the MRI scan would have revealed a partial prolonged hypoxic ischemic injury and not an acute profound injury. The court rejected Ms Shange’s experts’ theory of a sub-threshold hypoxia, which was unsupported by medical literature and fell outside of both experts’ fields of expertise.

The court reiterated that the function of experts is to assist the court. However eminent an expert may be in a general field, this does not make them an expert in a particular area unless qualified, by special study or experience, to express an opinion on that area. If an expert seeks to rely on literature to support an opinion, the expert must, by virtue of their own training, be able to affirm both the correctness of the statement relied upon and that the statement was written by someone with proven experience in that particular field.

In the absence of evidence that Ms Shange required emergency treatment, and in light of the probability that the injury occurred in the last few minutes before delivery, the medical staff could not have foreseen or anticipated the onset of the injury. Ms Shange therefore failed to prove that there was any negligence on the part of the medical staff which caused the damage or injury suffered by Mlondli.

This case reaffirms that experts must avoid giving evidence outside of their fields of expertise in order to advance one party’s case at the expense of the expert’s duty to the courts to advise impartially.