Across South Africa, medical errors resulting in brain damage in newborns are disturbingly common.
As many as 50% of children with cerebral palsy have the condition because of avoidable factors.
The state of public hospitals in South Africa has been identified as the reason for an “avalanche of medico-legal claims” – estimated to be more than R108 billion – many of which are associated with cerebral palsy.
Dr Mark Richards, a neurodevelopmental paediatrician at Red Cross War Memorial Children’s Hospital, points to “stressed maternity services, patient load and staffing adequacy” as to why the signs of foetal distress are often missed at state facilities.
Even when foetal distress is picked up, staff often encounter “difficulties in the form of ambulance shortages, access to surgery, or experienced medical opinion”.
Perinatal death statistics in South Africa
According to a report on perinatal mortality in South Africa, intra-partum asphyxia, or deprivation of oxygen, accounts for 66.3% of all deaths in “term babies that were still alive intra-uterine on admission to the labour ward”.
Of these deaths, “72% occurred in mothers with no obstetric condition” and “53.4% of avoidable factors were medical-personnel related”.
The statistics are as serious with babies who were born alive but later died. In 64.9% of cases, hypoxia is the main cause of death.
Birth-related trauma has been linked to the country’s unusually high prevalence of cerebral palsy among children. South Africa’s incidence rate of 10 cases per 1,000 births is almost five times greater than the global average.
A study conducted by The Free Market Foundation found that cerebral palsy, and other birth-related injuries, account for 43.5% of all malpractice claims against state hospitals in South Africa.
Examples of South African cases: newborn brain damage due to medical negligence
R.S.L. obo T.M. vs. Gauteng MEC for Health
In 2011, the delay in transferring a mother to hospital, and failure of hospital staff to monitor the mother and foetus during labour, was found to have resulted in foetal brain damage.
In its findings, the court identified the slow labour process, late diagnosis of the baby’s position in the womb, and the failure to adequately monitor the mother and unborn baby as negligent and the cause of the child’s cerebral palsy.
An action for damages amounting to R27,380,000 was instituted on behalf of baby T.M., and the court ordered the defendant to pay 100% of the agreed or proven damages, plus costs.
Hlongwane vs. KZN MEC for Health
Due to a delayed and incorrect mode of delivery, infant Hlongwane sustained hypoxic-ischaemic injury resulting in brain damage. As a result of the injury, the child was severely mentally and physically disabled.
A total of R23 million in damages was claimed on behalf of the plaintiff, of which R1,529,766.51 was ordered as an interim payment. The case was postponed.
Mcingana vs. MEC for Health, Eastern Cape
In August 2024, the Bisho High Court found “substandard and negligent” actions by healthcare providers as the probable cause of baby Mcingana’s brain injury and subsequent hypoxic-ischaemic encephalopathy (HIE).
Despite the diagnosis of foetal distress at a district hospital, the heavily pregnant mother waited for two hours for an ambulance. Once admitted to Nelson Mandela Academic Hospital, she was taken to theatre for a Caesarean section a further two hours later.
The court concurred with expert evidence that the injury to the brain occurred as a result of the extended labour due to the delays in getting the mother to theatre.
The defendant was ordered to pay damages plus costs.
T.M. obo D.M. vs. MEC for Health, Gauteng
In 2023, the South Gauteng High Court determined negligence, on the part of attending midwives, as the cause of irreversible brain damage in newborn infant baby D.
According to expert witness testimonies, it was deprivation of oxygen during the labour process that resulted in the baby’s hypoxic-ischaemic event.
The court agreed, and found the injury to be “reasonably foreseeable and preventable by correct monitoring designed to detect foetal distress”.
The defendant was ordered to pay damages and the plaintiff’s costs.
M.C.N. obo M.B.N. vs. Gauteng MEC for Health
A baby who sustained a brain injury during birth was left severely incapacitated by cerebral palsy that left one side of the body paralysed.
The child is incontinent, intellectually disabled and suffers from a host of other debilitating conditions.
In a previous hearing, the defendant was found liable for damages. In 2023, the South Gauteng High Court determined quantum at R6,643,913.
S.M. vs. Eastern Cape MEC for Health
A claim of damages, estimated to be R31,789,970, was instituted against the defendant in respect of baby A, who was born in hospital on New Year’s Eve in 2015.
In the court’s opinion, staff shortages, inadequate monitoring of mother and baby, and a delayed response after the birth led to Baby A’s intrapartum asphyxia and subsequent spastic quadriplegic cerebral palsy.
As a result, the court held the defendant liable for damages in an amount yet to be determined.
Most common causes of brain damage in infants
These are the most common causes of brain damage in newborns.
Hypoxia, when the brain doesn’t get sufficient oxygen before, during or after birth.
Bacterial and viral infections, such as meningitis, impair foetal brain development.
Physical injury, resulting from vacuum delivery or the use of forceps with excessive force, cause severe injury to the infant’s head and brain.
Stroke, due to low oxygen levels in the infant’s blood or lack of optimal blood flow.
Avoidable brain damage in newborns: causes that constitute negligence
With the best medical care, not all instances of brain damage can be avoided. However, in a significant proportion of cases medical negligence may be directly to blame.
Key causes of avoidable brain damage in infants are:
- inadequate foetal monitoring
- substandard care related to resuscitation
- misuse of forceps during delivery
- failure to manage a breech birth
- undetected umbilical cord prolapse
- delays in inducing labour
- failure to deliver by Caesarean section
- undetected foetal distress.
What to do if you have a claim
If you believe medical malpractice is the cause of brain damage to your newborn, you may have a legitimate claim for damages.
These cases are medically and legally complex. To get the payout you deserve, contact an attorney who is experienced and skilled in medical negligence claims.
How DSC Attorneys can help
At DSC Attorneys, we specialise in medical malpractice claims, including claims involving brain damage in newborns. Our personal injury attorneys and medico-legal team can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve. We work on a no win, no fee basis.
