Successful claim for damages for birth of healthy baby after failed sterilisation procedure

10 December 2020

The mother of a baby born as a result of an unplanned pregnancy caused by the negligent performance of tubal ligation surgery was successful in her claim against the obstetrician for damages.

In Issue

The court had to determine whether a doctor was negligent in the performance of elective sterilisation surgery where its failure led to an unwanted pregnancy. There were substantial matters of fact and law in issue, including that of expert opinion and damning findings made regarding the reliability of factual testimony.

The background

Ms Jodie Lee (a pseudonym) brought proceedings against Dr Nita Dhupar, an obstetrician and gynaecologist, claiming damages for alleged professional negligence in relation to failed tubal ligation surgery performed by Dr Dhupar on 26 August 2014. The intended outcome of the procedure was that resultant scar tissue from correct placement of a “Filshie clip” would create a seal to achieve permanent occlusion of the plaintiff’s fallopian tubes to prevent future pregnancy.

However, within 12 months of the procedure, the plaintiff unexpectedly conceived her fourth child who she gave birth to by emergency caesarean section delivery at the Wagga Wagga Referral Hospital on 1 March 2016. There was evidence that the circumstances of the birth were very stressful for the plaintiff whereby she unexpectedly went into spontaneous labour prior to a scheduled caesarean (as a natural vaginal delivery was contraindicated).

The plaintiff claimed that she suffered avoidable harm due to the negligent performance of an elective tubal ligation. She argued that if Dr Dhupar had duly exercised reasonable care in carrying out the tubal litigation surgery, the pregnancy would not have eventuated. Despite there being no doubt that the child is loved and cherished by the plaintiff, the pregnancy and subsequent birth of the child was said to have had significant adverse effects on the plaintiff, including on the amenity of her life, her emotional wellbeing and her capacity to work. It was highlighted in the beginning of the judgment that this was not a case properly characterised as a wrongful birth claim. The court reiterated the position in the New South Wales jurisdiction, that such a characterisation confused the issues concerning the true cause of action.

The decision at trial

The reasons for judgment are detailed (some 300 pages) and go into considerable deliberation of the evidence and expert opinion. The court stressed that this was not a case properly characterised as a wrongful birth claim and noted that such a characterisation confuses the issues concerning the true cause of action. In relation to the evidence, the court found the defendant’s testimony to be unreliable on a number of significant and material factual matters in dispute, including the content of pre-operative information provided to Ms Lee and the reliability of the patient and operation records.

Ultimately, the court held that Dr Dhupar breached the duty of care she owed to the plaintiff in her negligent performance of the tubal ligation surgery. The court found that the evidence unequivocally showed that without good cause, Dr Dhupar placed the Filshie clip on the plaintiff’s left fallopian tube in a position significantly more lateral to the manufacturer’s recommended position. Dr Dhupar’s non-typical application of the left Filshie clip materially increased the risk of pregnancy.

Dr Dhupar failed in pleading the defence of inherent risk under section 5I of the Civil Liability Act 2002 (NSW) (the CLA). The court was not persuaded that the plaintiff’s pregnancy was the result of the materialisation of an inherent risk of failure associated with use of the Filshie Tubal Ligation System. In the court’s assessment, the consequence of such a misapplication of the Filshie clip necessarily negated the availability of the defence.

The defendant also failed to establish a defence of peer opinion pursuant to section 5O of the CLA. The starting point for this analysis was that Dr Dhupar had not conducted the sterilisation procedure in accordance with her “usual practice for such procedures”. Of significant detriment to Dr Dhupar was the limited content of her operation record when attempting to rely upon her usual procedure or practice in evidence. This was despite the court recognising that she had a busy private and public obstetric and gynaecological practice and it was reasonable in the circumstances that she not recall the specific operation in question. Dr Dhupar did not make a contemporaneous note of any unusual features (such as her evidence of a large varicose vein on the left fallopian tube during the procedure). The court did not accept Dr Dhupar’s version of events in this regard.

The evidence of what constituted professional practice at the time of the surgery was informed by the manufacturer’s instructions and the relevant RANZCOG guidelines. The court found that Dr Dhupar had failed to apply the Filshie clip in the recommended position and locked into a closed position, without good cause. According to the court, there was nothing that emerged from the expert evidence to support the defence claimed pursuant to s5O of the CLA.

The court found that on the balance of probabilities, but for Dr Dhupar’s non-typical application of the left Filshie clip resulting in a failure to fully occlude the left fallopian tube, the plaintiff’s pregnancy would not have occurred.

Ms Lee was awarded damages totalling $408,700, which comprised damages for pain and suffering resulting from the course of the pregnancy and the trauma of the birth process and the uninvested emotional issues, past and future economic loss, future treatment expenses and past out-of-pocket expenses. The award for damages was restricted by the operation of sections 70 and 71 of the CLA which limits the extent to which damages are recoverable for economic loss incurred by raising a child. The award for economic loss was instead characterised as being a result of her psychiatric injury following the birth, which continued to affect all aspects of her life.

The defendant was also ordered to pay costs.

An appeal by the doctor was dismissed by the NSW Court of Appeal in February 2022.

Implications for you

The case highlights the importance of practitioners ensuring contemporaneous record keeping, recorded communication of risk and follow up consultation when indicated. Where a practitioner seeks to rely on “usual procedure or practice” in evidence it is even more important that contemporaneous records are sufficiently detailed, particularly where unusual features are present.

Ultimately, several findings were made criticising the reliability, credibility and veracity of the doctor’s evidence. The case serves as a timely reminder of the importance of candid communication and transparency when giving evidence.

Lee (a pseudonym) v Dhupar [2020] NSWDC 717 (19 November 2020)

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