Dhupar v Lee [2022] NSWCA 15: successful claim for damages for the birth of a healthy baby after failed sterilisation procedure.

On 26 August 2014, obstetrician and gynaecologist Dr Nita Dhupar performed a Filshie clip tubal ligation on Ms Jodie Lee (a pseudonym), a surgical procedure intended to result in permanent contraception. The procedure involves using Filshie clips to clamp the Fallopian tubes so that they become sealed and eventually severed.

Approximately 9 months after receiving the surgery, Ms Lee fell pregnant and subsequently gave birth to her child on 1 March 2016. Ms Lee sued Dr Dhupar in the NSW District Court for negligence, alleging that Dr Dhupar did not correctly apply the Filshie clips or inspect whether they had been properly applied. Ms Lee was successful, and she was awarded damages of $408,700 plus costs. This included damages for non-economic loss (due to psychological disorder and trauma of surgery), past economic loss, future loss of earning capacity, and past out-of-pocket expenses and future treatment expenses.

Dr Dhupar appealed, both as to liability and as to damages, and the hearing for which was held on 25 and 26 May 2021. The decision was handed down on 18 February 2022.

Significantly, the Court of Appeal unanimously dismissed Dr Dhupar’s appeal. Whilst relying on twenty grounds of appeal in relation to liability, Brereton JA, McCallum JA and Simpson AJA held that, on the balance on probabilities, the trial judge was right to conclude that the patient’s pregnancy post tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip. Considering the evidence presented to the Court, the judges ultimately concluded that Dr Dhupar did not sufficiently prove that the trial judge had erred in their finding.

There is no doubt that pregnancy can occur after tubal ligation without negligence. The literature outlines various well-established ways tubal ligations can fail without there being any negligence on the part of the operator, and these occurrences were considered and accepted by the Court. Therefore, the question for the Court of Appeal, as it had been for the District Court, was whether Ms Lee’s pregnancy was, on the balance of probabilities, a result of Dr Dhupar’s negligent insertion of the left Filshie clip, or whether the failure was the result of an unrelated occurrence.

Significantly, the Court considered the leading literature on the topic which has established that most failed sterilisations involving Filshie clips are attributable to operator error where the failure occurs within nine months of the procedure. Having fallen pregnant only nine months after her tubal ligation, Ms Lee argued that there was a significant possibility that the failure was due to negligence on Dr Dhupar’s part. Further, the appellant’s contention that the trial judge should have had regard to the fact that Dr Dhupar had not previously had a failed sterilisation following the application of a Filshie clip was held to be “without substance”.

On 1 March 2016, Ms Lee gave birth to her child via Caesarean-section, during which the surgeon, Dr Jeri, could only identify the right Filshie clip. Dr Jeri could not identify a clip on Ms Lee’s left fallopian tube. The left clip was later confirmed not to be attached to Ms Lee’s left fallopian tube when she underwent a hysterosalpingogram (HSG), a radiological procedure, during the course of proceedings in 2018.

In these circumstances, intraoperative photographs had the potential to offer much insight into any possible negligence that may explain why the left clip was no longer attached to Ms Lee’s fallopian tube. In particular, there was a question as to whether Dr Dhupar had not completely closed the clip at the time of insertion.

The intraoperative photographs of concern in this case were those taken by a theatre nurse during Ms Lee’s tubal ligation on 26 August 2014. Whether the intraoperative photographs supported the doctor’s case that the left clip was properly closed, or accommodated the patient’s case that it was not, was therefore a significant issue for the Court to consider.

In a joint report, the expert witnesses Professor O’Connor (called by Ms Lee) and Professor Cooper (called by Dr Dhupar) agreed that the intraoperative photographs confirmed Dr Jeri’s finding that the right clip had been correctly applied. Notably, the experts both found that the photographs did not conclusively show that complete closure of the left clip over the left fallopian tube had been achieved by Dr Dhupar, although neither suggested that the photographs showed that closure had not been achieved. Professor O’Connor and Professor Cooper did conclude however that the left clip was not placed in the recommended position. Rather, the clip was placed 2.9cm away from the recommended position on the fallopian tube. Professor O’Connor considered the misplacement to be a likely explanation for the pregnancy, however Professor Cooper was not willing to draw such a conclusion on the evidence provided.

Complicating this was the fact that the incomplete closure hypothesised by Ms Lee could not be proved or disproved through the image of the left clip as it appeared in the HSG. From the HSG images, the experts could not conclude that the clip was completely closed over the left fallopian tube, in which case it could have been said that the detachment was definitely due to circumstances not related to any negligence on the part of Dr Dhupar. Similarly, the images did not exclude the possibility that the clip had been incompletely closed in an act of negligence by Dr Dhupar. Yet, the fact remained that the left clip was applied at a sub-optimal point on Ms Lee’s left fallopian tube which did increase the chances of an incomplete closure.

It was in these circumstances that the Court held that the trial judge was right to conclude that, more probably than not, Ms Lee’s pregnancy post-tubal ligation was attributable to negligent operator error on the part of Dr Dhubar in the application of the Filshie clip on 26 August 2014. Whilst the intraoperative photographs and the HSG could not provide any conclusive evidence, the Court relied, firstly, on the fact that most tubal ligations that fail within nine months of the surgery are due to negligence and, secondly, on the intraoperative photographs which showed that the left clip was misplaced (if not incompletely closed) on Ms Lee’s left fallopian tube. Further, the Court upheld the damages as awarded to Ms Lee by the District Court as it could not be found that the sum totalling $408,700 plus costs was outside the range of reasonableness.

The case confirms the NSW District Court’s finding that an individual can claim damages for a healthy baby born as a result of an unplanned pregnancy caused by the negligent performance of a sterilisation procedure. The case also demonstrates the importance of expert opinion and the balance of probabilities in medical negligence claims where there may be a lack of evidence available to the parties and the Court alike.

If you would like to read the full decision yourself, you can access it here: https://jade.io/article/90586