Wrongful birth: Failed sterilisation.

With thanks to Tim Cummings for drawing my attention to Lee (a pseudonym) v Dhupar [2020] NSWDC 717 available on Caselaw.

An order was made prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employer.

The plaintiff claimed that she  suffered avoidable harm from conception, pregnancy and childbirth, which she alleged was due to a negligent breach of the duty of care that Dr Dhupar owed to her when Dr Dhupar performed an elective tubal ligation (Flishie clip) procedure on her, where the aim of that procedure was to achieve permanent occlusion of her fallopian tubes because she wanted to prevent future pregnancy.

The reasons for judgment are quite detailed. Some matters of interest arose, including a finding that the some of the defendant’s notes were modified later in time (see [107]) in that a sticker was added suggesting the provision to the mother of a College information sheet.

The trial judge held that the left Filshie clip was not completely closed and locked in the correct position on the left fallopian tube as recommended by the manufacturer and the RANZCOG guidelines (at [665]). Hence the trial judge accepted the submission made on behalf of the plaintiff that on the balance of probabilities, the subject pregnancy was conceived as a consequence of Dr Dhupar having incorrectly applied a Filshie clip to the left fallopian tube which remained either wholly or partly patent, at least until July 2015, and sufficiently patent to allow the passage of gametes that enabled fertilisation to occur. The likelihood for that occurrence was increased by the more lateral placement away from the recommended position 1cm to 2cm from the cornu of the uterus only on the muscular tube without including extraneous tissue (at [759]).

An inherent risk defence (section 5I) was raised. However the trial judge held at [889] that Dr Dhupar’s non-typical application of the left Filshie clip had the effect of materially increasing the risk of permitting patency or partial patency of the fallopian tube to remain so as to allow the passage of gametes. An unintended pregnancy in those circumstances could not be reasonably described as the materialisation of an inherent risk within the meaning of s 5I of the CL Act.

As regards the section 5O defence, the trial judge held at [901] that Dr Dhupar had not provided any satisfactory or persuasive evidence that identified a sound reason for her placement of the left Filshie clip at a location that was more lateral to the position recommended by the manufacturer and endorsed by RANZCOG, namely at a location 1cm to 2cm from the cornu of the uterus and only on the muscular section of the fallopian tube without also including other extraneous tissues of the mesosalpinx. Dr Dhupar’s failure to properly apply the Filshie clip to the left fallopian tube was contrary to peer professional opinion widely accepted in Australia as competent professional practice as identified and cited in the manufacturer’s literature and the RANZCOG guidelines (at [919]).

It appears that no claim was made for the costs of raising the child, by reason of sectiion 71 of the Civil Liability Act 2002 (NSW). Presumably the chld did not suffer a relevant disability.

However a claim was made for non-economic loss and was assessed at 38% of a most extreme case.

As for economic loss, the court noted section 71(1)(b) but held that the plaintiff’s claimed past loss of earnings was not relevantly incurred while she reared or maintained her fourth child (at [1054]). Here, the plaintiff’s loss of earnings was founded upon her inability to work due to her psychological and psychiatric problems that were caused by the negligence of Dr Dhupar (at [1062]). The trial judge’s reasons for construing the meaning, effect and application of section 71 in relation to the plaintiff’s claim for past economic loss also formed the basis for his assessment of the plaintiff’s claim for future loss of earning capacity.

Damages were assessed at about $400,000 plus costs.