Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 4 December 2020.
In 2019, Kelly underwent an elective tubal ligation, a form of female surgical contraception. The aim of the procedure was to prevent future pregnancy by having the fallopian tubes clipped to prevent egg fertilisation.
During the procedure, Kelly’s surgeon only partially locked the clips into place and failed to place them in the correct position. As a result, the procedure was ineffective. Kelly realised this once she fell pregnant several months later.
Kelly was diagnosed with Depression and endured a traumatic birth experience. She underwent an emergency c-section and almost lost her life due to blood loss. She had to take a year off work and suffered a considerable loss of income as a result.
Kelly made a claim for compensation for pain and suffering associated with the pregnancy and economic loss. The surgeon refused to accept liability on the basis that pregnancy was an inherent risk with the procedure and that he performed the operation to the appropriate standard.
Kelly commenced proceedings in the District Court, arguing that she would not have endured the pain and suffering and financial loss were it not for the surgeon’s negligence.
The Court held that the surgeon’s non-typical placement of the clips significantly increased the risk of pregnancy to the extent that it was no longer an inherent risk of the procedure. Further, the incorrect placement of the clips fell short of what other surgeons in the field considered competent professional practice. As a result, the surgeon was deemed negligent.
The Court assessed Kelly’s pain and suffering at 38% of a most extreme case and accepted her claim for loss of income. She was awarded $400,000 in compensation and the surgeon was ordered to pay her legal costs.
If YOU would like a particular issue addressed please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
