Maternal And Newborn Health – A Legal Perspective

On 7 April, Namibia observed World Health Day as usual.

It coincided with the World Health Organisation launching a year-long campaign on maternal and newborn health: ‘Healthy Beginnings, Hopeful Futures’.

Lamentably, in Namibia, as with many sub-Saharan African countries, there are an alarming number of cases of preventable maternal and newborn deaths or serious brain injuries to newborns. 

Considerable progress has been made in Namibia to stem what appears to be preventable but, unfortunately, maternal and newborn deaths or serious brain injury to newborns continue.

The problem appears to lie in negligence, incompetence or simply a failure by some health professionals to take their work seriously .

But the chief cause of this sad state of affairs appears to be sheer medical negligence.

DUE DILIGENCE

In 1836 chief justice Tindall in England formulated the test for medical negligence in the following terms: “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill.

“He does not undertake, if he is an attorney, that at all events you shall win your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill.

“There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill and he will say whether, in this case, the injury was occasioned by one of such skill in the defendant.”

A number of medical negligence cases shows that brain injury at birth accounts for a great part of maternal deaths in sub-Saharan Africa.

Literature and recent case law make it clear that there are two phases of labour.

Firstly, the latent phase progressing to the active phase.

Secondly, the active phase in turn has two stages: the first begins when the cervix of a woman in labour reaches a dilation of four centimetres, and the second stage starts when the cervical dilation is 10 centimetres. 

In most medical cases medical personnel attending to a woman in labour would be found to have failed to initiate regular blood sugar or blood pressure monitoring upon admission of the patient in labour.

Case records reveal that medical personnel failed to take required steps to ensure proper, timeous and professional assessment, monitoring and management of a woman in labour. 

In some cases hospital staff failed to perform accurate and proper monitoring of the foetal heart rate, failed to record accurate partogram, or simply failed to detect or diagnose that the unborn baby was in foetal distress.

NEGLIGENCE

In a recent case in South Africa, an experienced obstetrician and gynaecologist gave critical evidence in a case that led to a brain injury of a newborn baby.

After hearing evidence, the court concluded that “of much concern in the evidence of Sister Bonga is that she recorded in the MCR that the cord around the neck was a complication yet she did not indicate whether the cord was tight or loose. She did not indicate whether the meconium, which is indicative of foetal stress, was thin or thick.”

The court also stated that “nuchal cords wrapped around the neck of foetuses occur frequently but they do not all result in CP births. Few do.

“This is because they are generally, on probabilities, identified early enough by proper or standard monitoring, picking up the foetal distress shown by decelerations or otherwise, and are then dealt with by timeous interventions. That is what a reasonable member of the nursing staff would have done.”

Negligence at birth is not only likely to cause injuries to a newborn but also the mother.

On 7 November, Namibia’s High Court awarded damages of N$1 million to a mother who suffered serious injuries because of nursing negligence at Otjiwarongo State Hospital.

The court found that nurses negligently pulled the patient’s legs excessively wide apart, worsening her injuries.

On 31 January, in the High Court of Namibia, a mother and her husband won a case against medical staff, again at Otjiwarongo State Hospital, after a mother lost her newborn due to negligence.

Notwithstanding the mother’s pregnancy being high risk, the unborn child was not continuously monitored, no sonar was performed and the mother’s plea for an emergency caesarean section was ignored.

The court awarded a combined amount of N$1.2 million in damages.

PREVENTATIVE

With the above in mind, we must cautiously expect that the renewed commitment by the minister of health to reduce maternal and neonatal deaths and improve infant nutrition will lead to a tangible improvement in the government’s well-meant efforts to reduce maternal and neonatal deaths.

Medical and nursing staff countrywide should re-dedicate themselves to providing professional and efficient health services and avoid recurrences of preventable maternal and neonatal deaths.

This is an area where the public needs to know its rights so as to enable mothers to demand better care and service at the critical delivery of a newborn.

Training of medical staff must also be strictly regulated by the government to avoid poorly trained medical graduates entering the market. 

• Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia, and is the author of seven law publications.

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