Woman Compensated $408,700 Following Permanent Contraception Procedure Failure

The Plaintiff also argued that the doctor failed to then undertake proper intraoperative inspection to ensure that the left clip was correctly and appropriately applied. The Plaintiff argued that the doctor’s negligence caused her pregnancy post tubal ligation. 

The District Court initially ruled in favour of the Plaintiff, however, the doctor appealed as to liability and damages. On 18 February 2022, the NSW Court of Appeal dismissed the doctor’s appeal, finding that the patient’s pregnancy post-tubal ligation was attributable to negligent operator error on part of the doctor in the application of the left Filshie clip, which caused the Plaintiff to suffer personal injury, loss and damages.

The Court held at [189]:

“As to liability, the mere fact of failure, occurring as early as it did, was suggestive of operator error in application of the clip. That hypothesis was reinforced by the circumstance that the left clip was applied at a sub-optimal point on the tube and incorporated extraneous tissue, increasing the chances of an incomplete closure  … the trial judge was right to conclude that more probably than not, the patient’s pregnancy post-tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip.”

The Plaintiff also made a claim for economic loss. The Defendant attempted to contest this head of damage on appeal, alleging that the award of damages for economic loss was precluded under s71(1) of the Civil Liability Act in proceedings involving a claim for the birth of a child.

However, the Plaintiff successfully argued that her ability to work was constrained by ongoing mental health consequences and psychiatric injury associated with the birth of the child – rather than an inability to work due to the costs associated with ‘rearing or maintaining’ the child.

The Court held in favour of the Plaintiff, with the Judges agreeing at [190]:

“As to damages, in proceedings involving a claim for the birth of a child, CLA s 71(1) does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child, and the trial judge’s award for economic loss was not erroneous.”

 Our skilled and experienced lawyers at Gerard Malouf & Partners recognise that a person’s world can be turned upside down because of the negligence of medical practitioners. That’s why our lawyers are committed to fighting to the end to achieve the best possible results for our clients. If you have an enquiry in relation to a potential medical negligence claim, please call us on 1800 004 878 and speak to one of our medical negligence lawyers.