Case summary | Gynaecologist sued for failed sterilisation and subsequent pregnancy

by | Dec 1, 2020 | Health Blog

In this case, a woman has been awarded $408,700 following a surgical error made during a tubal ligation which resulted in an unplanned pregnancy.

In May 2014, the plaintiff, Mrs Jodie Lee (a litigation pseudonym) consulted the defendant, Dr Dhupar, an obstetrician and gynaecologist with a view to having an elective tubal ligation to prevent future pregnancies.

Mrs Lee and her husband already had three children and Mrs Lee had plans to commence full-time work.  Although Dr Dhupar performed a tubal ligation in August 2014, Mrs Lee found out that she was pregnant in July 2015.

Mrs Lee’s fourth child was subsequently delivered by emergency caesarean section under circumstances which were very stressful for the plaintiff.  Mrs Lee also alleged that notwithstanding her love for her child, the birth of the child had had a significant adverse effect on her emotional wellbeing and capacity to work.

Dr Dhupar contended that an unplanned pregnancy was the materialisation of an inherent risk of a tubal ligation and that she had performed the tubal ligation in a manner consistent to that widely accepted by her professional peers.

The District Court of New South Wales found that Dr Dhupar negligently failed to take reasonable precautions when applying a Filshie clip to Mrs Lee’s left fallopian tube during surgery so as to minimise the risk of a subsequent pregnancy and breached her duty of care.

The Court found that in order for Dr Dhupar to rely on the inherent risk defence in section 5I of the Civil Liability Act 2002 (NSW), she would first need to satisfactorily show that she had applied the left Filshie clip in a manner compliant with that which is recommended by the manufacturer so as to obviate the need to consider operator fault.

However, there was evidence that the left clip placed by Dr Dhupar was in a position significantly more lateral than the manufacturer’s recommended position.

Similarly, Dr Dhupar’s positioning of the clip meant that she was unable to demonstrate that she had acted in accordance with a practice that was widely accepted in Australia by her professional peers as being competent.

The trial judge made a significant number of adverse findings about Dr Dhupar’s credibility in respect of her recollections of meetings with Mrs Lee and her recollection of performing the tubal ligation, particularly in circumstances where it became evident during cross-examination that Dr Dhupar had falsified Mrs Lee’s medical records on becoming aware of her complaint.

Mrs Lee’s award for damages was restricted by the operation of sections 70 and 71 of the Civil Liability Act 2002 (NSW) which deal with so-called wrongful birth claims and which limit the extent to which damages are recoverable for economic loss incurred by raising a child.  However, to the extent that the Court found that Mrs Lee had suffered economic loss because of her psychiatric injury occasioned by Dr Dhupar’s negligence, she was able to recover damages.

 

The decision in Lee (a pseudonym) v Dhupar [2020] NSWDC 717 can be read here.

Prue Campbell

Prue Campbell