A woman was recently awarded $408,700 plus costs after an obstetrician and gynaecologist, Dr Nita Dhupar, failed to adequately perform a laparoscopic tubal ligation procedure which was meant to result in permanent contraception. Instead, the woman fell pregnant around 9-months after undergoing the subject procedure.
On 26 August 2014, Dr Dhupar performed the laparoscopic tubal ligation procedure on the Plaintiff which involved using ‘Filshie’ clips to clamp the Fallopian tubes so that they could become sealed and severed. When properly performed, this procedure is designed to result in a permanent method of birth control.
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.
Negligence is a failure to exercise the care that another in the same position would prudently exercise. The harm caused by negligence is considered to be due to carelessness, rather than a specific intent or determination to cause harm.
While negligence can include misconduct in a variety of circumstances, malpractice is reserved for professionals who fall grossly short of their obligations — and harm others in the process. As a result, malpractice is often called “professional negligence”. If a licensed professional (such as a doctor, lawyer, or accountant) fails to provide the accepted standard of care and subsequently causes harm to the plaintiff, this form of negligence may be known as malpractice.
Medical malpractice is specifically used in reference to medical workers who have committed acts of negligence.
Demonstrating that a doctor fell short of their duty of care can be a challenging process. While most doctors try their best to correctly diagnose conditions and provide timely medical treatment, they can’t always be right. In every state, protections are in place to shield practitioners from some litigation. These give practitioners peace of mind on the job and protect hospitals that are doing their best with limited resources. However, these laws also set the bar for receiving compensation incredibly high.
Overall, to win a favorable judgment, you must be able to prove Duty, Breach and Damages.
If you have been injured or an existing condition has got worse following a medical procedure, or even just a visit to the doctor, then you may have been the victim of medical negligence and you may be eligible to make medical negligence claims against the professional who caused your injury.
If you can first show that you have suffered harm, and secondly, that a medical professional failed in their duty of care towards you then you may be entitled to compensation.
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In the spirit of reconciliation GMP Law acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respects to their Elders past, present, and emerging, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.
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