Background

On 31 August 2011, the Plaintiff attended on Dr Al-Hakeem and ultimately had an Implanon contraceptive device inserted into her arm. For an Implanon device to be effective, it must be inserted within the first five days of the patient’s menstrual cycle. Unbeknownst to the Plaintiff and Dr Al-Hakeem, at the time the Implanon device was inserted, the Plaintiff was 19 days pregnant.

On 11 December 2011 the Plaintiff took a home pregnancy test which returned a positive result. An ultrasound performed on 12 December 2011 confirmed that she was at 19 weeks gestation. The Plaintiff believed she could not lawfully terminate the pregnancy because it was too advanced.

On 18 May 2012, the Plaintiff gave birth and suffered severe haemorrhaging requiring emergency surgery.

Issue

The critical issue was whether Dr Al-Hakeem had breached her duty of care to the Plaintiff by inserting an Implanon device into the Plaintiff's arm without properly ascertaining if she was within the first five days of her menstrual cycle.

The Plaintiff said that she believed any symptoms she was experiencing were symptoms or side-effects of the Implanon device and not a consequence of the pregnancy itself. She claimed that, but for the breach, she would have become aware of her pregnancy much earlier, and would have undergone a termination. She claimed almost $500,000 in damages.

Factual Dispute

The Plaintiff claimed that she was not asked critical questions in relation to her menstrual period to ascertain whether she was in the first five days of her cycle. She also claimed that she told Dr Al-Hakeem that she was not sure when her last period was and estimated it had finished a week earlier.

Dr Al-Hakeem said the Plaintiff had told her she was on the third day of her menstrual cycle at the time of presentation. Dr Al-Hakeem relied not only on her recollection, but also upon her notes and contemporaneous documents, including a sticker recording that the Plaintiff’s first day of her last menstrual cycle was 29 August 2011.

Court’s conclusion

The Court found that the Plaintiff was an unreliable witness and lacked credibility in many parts of her evidence.

The Court acknowledged that Dr Al-Hakeem sometimes undermined her own credibility, by exaggerating her evidence (i.e. claiming to recall the conversations with the Plaintiff with such precision) and claiming that her notes from 31 August 2011 were made independently (when the notes replicated the exact wording of the ‘Doctors Checklist’ document). 

However, the Court accepted the core of Dr Al-Hakeem’s evidence that, prior to inserting the Implanon device, the Plaintiff told her she was not pregnant, she was in the first five days of her menstrual cycle, and that her menstrual cycle had commenced on 29 August 2011.

The Plaintiff’s claim was dismissed. 

To read the full decision in STOBART -v- AL-HAKEEM [2017] WADC 127, click here.