A wrongful birth claim made by the injured plaintiff, referred to under the pseudonym as “Jodie Lee” was successful against Dr Nita Dhupar, obstetrician and gynaecologist.
On 26 August 2014 Dr Dhupar performed “the procedure” on Jodie being a laparoscopic tubal ligation which is a surgical procedure intended to result in permanent contraception using Filshie clips to clamp the fallopian tubes so they become sealed and eventually severed. About nine months after this procedure, Jodie fell pregnant with her fourth child. Jodie sued Dr Dhupar for negligently performing the procedure by failing to correctly apply the Filshie clips or inspect whether they had been properly applied. Jodie had suffered from occasions of anxiety before the alleged negligence and this was documented in her medical records.
NSW DISTRICT COURT JUDGMENT
Unsurprisingly, Dr Dhupar could not recall exactly how she performed this procedure but she gave evidence at the hearing of what her usual practice was. Independent obstetricians and gynaecologists gave expert evidence for Dr Dhupar and Jodie in relation to how the procedure should be performed, that sometimes failure of the procedure to provide effective contraception can happen even when it is performed reasonably and other times it is due to operator error and negligent performance of the surgery.
The NSW District Court found in favour of Jodie that Dr Dhupar had negligently performed the procedure and that her negligence caused the pregnancy and birth of her fourth child and associated psychiatric injuries manifesting in chronic depression.
Judge Levy of the NSW District Court acknowledged in his judgment that although there is no doubt that Jodie’s fourth child is loved and cherished by her, her husband and their family, the pregnancy and subsequent birth of this child had significant adverse effects on her life, emotional wellbeing and her capacity to work. Judge Levy awarded Jodie $408,700 in damages comprising of $261,000 for non-economic loss (pain and suffering), $45,000 for past loss of income, $80,000 for future loss of income, $15,000 for treatment expenses and $7,700 for past out of pocket expenses.
Section 71 of the Civil Liability Act in New South Wales limits the damages which can be awarded for medical negligence where that negligence results in the birth of a child (wrongful birth claims). It states that the court cannot award damages for “any loss of earnings by the claimant while the claimant rears or maintains the child.” Judge Levy interpreted this section to mean that it does not prevent a court from awarding damages for loss of income arising from the mother’s negligently caused psychiatric injury.
NSW COURT OF APPEAL JUDGMENT
Dr Dhupar appealed this decision to the NSW Court of Appeal which found that Judge Levy was correct in concluding that Jodie’s pregnancy after the procedure was caused by negligent operator error on the part of Dr Dhupar despite the fact that she had never previously had a failed sterilisation procedure following application of a Filshie clip.
The full decision can be read here: https://www.caselaw.nsw.gov.au/decision/17f0571a34bbe41c4e4301c7
PRACTICAL POINTS
- Signing a consent form does not mean you cannot pursue a claim as patients do not consent to negligent treatment.
- Even if you suffered a known complication of a procedure or surgery, it does not mean that your injury was not negligently caused.
HOW STACKS GOUDKAMP CAN HELP YOU
If you or anyone you know has suffered a physical or psychiatric injury as a result of a wrongful birth, or other medical negligence claim please contact us and speak with Alicia Wong and our team that practice exclusively in medical negligence claims. Alicia is an Accredited Specialist in Personal Injury.
We will act for you on a no win, no fee basis. We will gather medical, expert, witness and other evidence for you. We will listen to you and understand how your injuries have and continue to affect your quality of life, daily activities, work, family and all aspects of your life.
We conduct thorough negotiations with at-fault parties and insurers for health providers (including doctors, hospitals and allied health therapists) to obtain the maximum amount of compensation you are entitled to. In many cases, we are able to do this successfully without our clients needing to attend court.
If you or someone you know has been injured or lost a close family member because of medical negligence please contact Stacks Goudkamp, on 9237 2222 or enquire online.
