This blog was co-authored by: Felix Le Roux, candidate attorney and Donald Dinnie, director

Recently, plaintiffs in medical malpractice litigation involving cerebral palsy have sought to advance the theory that acute profound brain injuries may be preceded by an intermittent deprivation of oxygen to the brain in the hours leading up to delivery.  This theory, known as the sub-threshold theory, is contrary to the well-established scientific position that acute profound injuries are caused by catastrophic events of sudden onset (known as sentinel events) that occur in the last 20-30 minutes before delivery.

In LN obo TK v MEC for Health, Gauteng (21492/2018), the Johannesburg High Court found that an acute profound injury had been caused by a sentinel event, not by an intermittent deprivation of oxygen over a prolonged period of time.

The plaintiff led expert evidence in an attempt to show that the absence of a known sentinel event was proof that the foetus had suffered from a partial prolonged deprivation of oxygen in the two hours leading up to delivery.  The plaintiff’s experts contended that the midwife on duty ought to have picked up warning signs through proper monitoring of the foetal heart rate.

The defendant’s experts noted that there were no abnormalities in the foetal heart rate or otherwise which would have indicated foetal distress.  The defendant’s expert obstetrician testified that there are sentinel events of unknown cause, which are clinically silent (for example, compression of the umbilical cord).

The court rejected the plaintiff’s evidence as being inconsistent with the radiology reports, which indicated “a picture of acute profound injury and not a partial prolonged injury”.  The court commented that the theory advanced by the plaintiff’s experts was contrary to the authoritative literature in the field.  The court accepted the evidence of the defendant’s obstetrician regarding silent sentinel events and concluded that the injury in this case was most likely caused by a “sentinel event which is still unidentified [and] occurred in the last 20 minutes of labour”.

There were no early warning signs of foetal distress, and even if the midwife had picked up a warning sign in the last 20 minutes before delivery, there would have been insufficient time to expedite the delivery, as it takes approximately one hour to prepare for an emergency caesarean delivery.

The court accordingly dismissed the plaintiff’s claim on the basis that the plaintiff had proved neither negligence on the part of the midwife nor a causal link between any such negligence and the baby’s brain injury.