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
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