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

New Coercive Control Laws in NSW as of 1 July 2024

From 1 July 2024, coercive control will be a crime in NSW when a person uses abusive behaviours towards a current or former intimate partner with the intention to coerce or control them. The Crimes Legislation Amendment (Coercive Control) Act 2022makes it an...

Key Rules on Discovery Procedures for Prospective Defendants

Rules 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (UCPR) provide essential guidelines on discovery aimed at identifying or locating prospective defendants. These rules are instrumental in the pre-litigation process, ensuring that applicants can gather...

5 Ways A Director Can Be Sued

Directors can be sued for all sorts of reasons.  Here are 5 of them. Reason #1: Insolvent Trading A director can be sued if the company he or she is a director of trades whilst insolvent.  A director has a duty to prevent the company trading and incurring...

7 Ways to Enforce a Judgment

After a judgment is obtained for an amount of money, there are numerous options open to a judgment creditor in relation to how to enforce the judgment (i.e. how to obtain the money which is owed pursuant to the judgment). Option #1: Issue a Bankruptcy Notice If the...

Who Can Bring a Compensation to Relatives Claim?

In the unfortunate event of a loved one's passing due to negligence or wrongful act, the Compensation to Relatives Act 1897 in New South Wales outlines the parameters for pursuing compensation on behalf of the deceased. Understanding who has the legal standing to...

10 Myths of Being Sued

If you or your business are sued, there are many myths about how the legal process will pan out.  Here are 10 myths about the legal process – all are incorrect. Myth #1: The matter will definitely go to a hearing Most matters settle before a Judge decides...