Woman Sues Doctor for Wrongful Birth Due to Incorrect Filshie Clip Application

Aug 10, 2023 | Publication

The plaintiff brought proceedings against the defendant, Dr Nita Dhupar, an obstetrician and gynaecologist, claiming damages as a result of alleged professional negligence in relation to a failed tubal ligation (Filshie clip) surgery, performed in August of 2014. The aim of this surgery is to achieve permanent occlusion of the fallopian tubes in which prevents future pregnancy. However, within twelve months of the elected surgery, the plaintiff unexpectedly conceived her fourth child. The damages claimed by the plaintiff are avoidable harm from conception, pregnancy, and childbirth.

In a detailed judgment, the court found in favour of the plaintiff, with the award of damages sitting at a total of $408,700. The court found that due to the failure of applying the Filshie clip correctly, fertilisation was possible. In addition, the court accepted expert evidence, which found Dr Dhupar to have acted outside the excepted standard of care for professional, as per s 5O of the Civil Liability Act. At 919:

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.

An inherent risk defence was raised by the defendant as per s 5I of the CLA, however this was not accepted by the court, explaining that an inherent risk defence had to be disregarded due to the poor application of the clip itself. At 889:

‘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 cannot be reasonably described as the materialisation of an inherent risk within the meaning of s 5I of the CL Act.’

The decision of Lee (a pseudonym) v Dhupar NSWDC 717 can be read in full here: https://www.caselaw.nsw.gov.au/decision/175ddc1cf4a985ef1722519a

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How Vicissitudes Impact Future Economic Loss in Legal Cases

When it comes to calculating future economic loss in legal cases, one concept that often arises is "vicissitudes." But what exactly are vicissitudes, and how do they affect the compensation awarded to plaintiffs? In this article, we'll delve into the definition of...

Can you still make a claim?

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as...

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...