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 does the court assess pain and suffering?

In New South Wales (NSW), the assessment of pain and suffering—referred to legally as non-economic loss—is governed by the Civil Liability Act 2002 (NSW) ("CLA"). This is compensation for the intangible effects of the injury, such as pain and suffering, loss of...

Property Disputes – How Can They Arise?

Property disputes arise in many different ways – not only in commercial contexts but also in residential settings.  Some of the types of property disputes include:...

Can a Child under 14 years commit a Crime?

In New South Wales, the age of criminal responsibility is 10 years old.  A child under 10 cannot be charged with a criminal offence. For children aged 10 to under 14, there is a legal presumption known as doli incapax, which assumes the child is incapable of...

Why is it important to know who your client is?

In a range of contexts, it is important to know who your client is. In most professional service contexts, the identity of the client is the starting point to providing advice.  If it is not clear who the professional advisor is advising, this can cause issues as...

Mental Harm Damages Following Birth Trauma: Lessons from Sorbello

In South Western Sydney Local Health District v Sorbello [2024] NSWCA 14, the New South Wales Court of Appeal has provided timely guidance on two important issues in personal injury litigation: how courts choose between competing expert opinions on mental harm, and...

Damages for Defamation – Newman v Whittington [2025] NSWSC 275

A family dispute resolution practitioner was awarded $150,000 in aggravated damages, $10,000 in interest, and an injunction in a recent Supreme Court of New South Wales case. The defendant posted defamatory statements about the plaintiff on WordPress, Facebook, and...

Review Panel Determines Right Hand Injury as Non-Threshold Injury

The Personal Injury Commission (PIC) has ruled in Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 that damage to pre-existing surgical hardware constitutes a non-threshold injury, entitling the Claimant to ongoing statutory benefits and...

What are 5 legal requirements for a business?

When a new business is set up, there are various legal aspects which should be considered.  Some are more important than others in the early stages.  Obviously the nature of the business will dictate more specific legal requirements. We set out below some...

Court Dismisses Group Proceeding

A significant class action against Waller Legal Pty Ltd has been halted after the Supreme Court of Victoria ruled that the proceeding should no longer continue as a group proceeding. The case, Jane Jones (a pseudonym) v Waller Legal Pty Ltd [2025] VSC 42, involved...