Case Summary | Court of Appeal upholds patient’s award of over $400,000 following failed tubal ligation

by | Mar 8, 2022 | Health Blog

The Court of Appeal dismissed the practitioner’s appeal against a decision for both liability and damages, finding the patient’s pregnancy was, on the balance of probabilities, a consequence of “operator error” in applying the Filshie clip to the patient’s left fallopian tube.

Facts

The patient underwent a tubal ligation with the practitioner, who applied Filshie clips to both the patient’s fallopian tubes to occlude them. When approximately nine months later, the patient fell pregnant with her fourth child, she sued the practitioner in negligence.

The trial judge found on the balance of probabilities, the left Filshie clip had been incorrectly placed, and had incorporated extraneous tissue in the bite of the clip, failing to achieve a full closure and locking of the clip. It was further found that the practitioner did not follow her usual practice of checking if the left clip was completely closed on this occasion and was not completely familiar with the clip, having given testimony that her usual practice was to confirm a clip was locked by its audible ‘click’, when the product in question did not make such sound.

The practitioner was found to have breached her duty of care in the manner and placement of the left clip. The trial judge awarded the plaintiff the sum of $408,700 damages, with non-economic loss assessed at 38% of a most extreme case, including a component for psychiatric injury associated with the birth of the child.

The practitioner appealed the findings of both liability and damages.

Outcome

In upholding the trial judge’s findings that the patient’s pregnancy was a result of the practitioner’s error in the application of the Filshie clip, the Court of Appeal stated that it was satisfied that the trial judge had reached the correct decision, on the balance of probabilities.

The practitioner had conceded that she had no actual recollection of the procedure and she therefore relied upon evidence of her usual practice of steps taken to ensure the clip was properly applied. However, the Court upheld the trial judge’s finding that various aspects of her evidence suggested that she did not follow her invariable practice on this occasion. It was also noted that the operation record contained limited information and did not contain any information which reflected the doctor’s usual practice. Further, whilst the doctor’s evidence was that she checked that the clip was properly applied by listening for an audible click, the undisputed evidence was that the applicator used at the relevant time did not produce an audible click.

The Court of Appeal also rejected the practitioner’s contention that s 71 of the Civil Liability Act 2002 (NSW) precluded an award for economic loss due to the birth of the child, finding that the section does not preclude the award of damages for economic loss for loss of earnings by the plaintiff attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child.

Finally, although the Court of Appeal found that the trial judge’s non-economic loss damages assessment at 38% of a most extreme case was at the “upper end”, it was not unreasonable.

Take Away

It is not uncommon for medical practitioners to have to rely upon their usual practice when giving evidence about the treatment and advice provided to a plaintiff. Whether or not this evidence is accepted by a court will depend upon the credibility of the practitioner and whether there is other evidence to support that their usual practice was followed on this occasion.  A practitioner’s written records are often referred to in order to provide support for what occurred, and it is therefore useful if the notes reflect the usual practice upon which the practitioner relies. For example, if a practitioner says that there usual practice is to check that a clip is properly applied by flipping it over or listening for an audible click, it is useful for the operation record to reflect that these steps were undertaken and the clip found to be fitted correctly.  Similarly, where a deviation from a usual practice is called for, thorough documentation of why it was needed, and what occurred, should always ensue.

Medical practitioners using devices and/or hardware should take the time to familiarise themselves with the product sufficiently, including reviewing the manufacturer product instructions and warnings.

To read the full decision in Duphur v Lee [2022] NSWCA 15 click here.

Gemma McGrath

Gemma McGrath