This blog is co-authored by Yuveshen Naidoo, a Candidate Attorney.
In July 2025 the High Court held the North West MEC for Health liable for damages arising from a brain injury sustained by a minor child during birth at Mahikeng Provincial Hospital. The plaintiff, acting in her representative capacity as the mother and natural guardian of the child, instituted proceedings for the irreversible hypoxic-ischaemic brain injury and neonatal hypoxic-ischaemic encephalopathy suffered by the child, which manifested as cerebral palsy and mental retardation.
The plaintiff was admitted to the hospital on 8 February 2013. She alleged that during her labour, she endured prolonged periods without dedicated medical attention, treatment, or advice. The child was eventually delivered by Caesarean section.
The court accepted that the defendant owed the plaintiff a duty of care to ensure that its employees rendered medical treatment diligently. It found that the medical staff, acting within the scope of their employment, were negligent in their care and treatment of both the plaintiff and the minor child.
Expert evidence played a pivotal role in determining liability. The plaintiff submitted reports from radiologists, obstetricians, a neonatologist, paediatric neurologists, a specialist nurse, and a geneticist. Joint expert minutes were filed in respect of some of these witnesses. The defendant did not appoint corresponding experts in key areas, leaving some of the plaintiff’s expert evidence uncontested. The court accepted the expert findings that the injuries were consistent with hypoxic-ischaemic encephalopathy which were causally linked to the delay in providing care and necessary interventions to the plaintiff and the minor child, the lack of proper and adequate monitoring of the plaintiff and the foetal heart rate, the failure to transfer the plaintiff timeously to the Mafikeng Hospital, and the failure to maintain proper records.
Despite sparse and incomplete medical records, the court held that the absence of documentation did not absolve the defendant of liability because it reflected a failure in standard medical practice and prevented the defendant from disproving the plaintiff’s claims. As explained by one of the plaintiff’s experts, maternity case record and partogram are critical tools for documenting the labour process and ensuring proper care. The court drew inferences from the available evidence and expert opinion, concluding that the medical and nursing personnel had failed to act with the diligence required of reasonably competent professionals.
The court found the defendant liable for the plaintiff’s proven or agreed damages. Costs were awarded on an attorney-and-client scale due to the defendant’s failure to engage with expert evidence, provide proper documentation, and cooperate during litigation which was found to be unreasonable and led to unnecessary delays and expenses. The costs also included the qualifying, preparation, and reservation costs of the plaintiff’s expert witnesses, as well as the costs of two counsel where employed. The issue of quantum was postponed sine die.
This judgment confirms that omissions and delays in clinical care, particularly during childbirth, can constitute actionable negligence where harm is foreseeable and preventable. The court’s reliance on expert evidence and its willingness to draw inferences despite the absence of complete records underscore the importance of maintaining proper standards of care and documentation in medical practice.