MEDICAL NEGLIGENCE LITIGATION - A RECENT CASE STUDY

We acted as solicitors on behalf of a lady who, following a failed sterilisation procedure carried out by her Consultant Surgeon, became pregnant and gave birth by emergency caesarean section to a baby boy. The baby boy was born with severe medical complications and he died at 6 months of age. The baby’s unfortunate condition and his fatal illness were not caused by the ineffective sterilisation operation.

The lady for whom we acted as a Plaintiff in this action claimed that the Consultant was negligent in performing the failed laparoscopy sterilisation. The operation involved affixing surgical clips to occlude (or seal off) her fallopian tubes. The issue in the case centred around whether the Consultant applied the clips to the fallopian tubes or to some other abdominal structure.

We as her Solicitors engaged an expert Gynaecologist in the UK who came to Court and who gave evidence in her favour.The standard procedure is to apply clips to close the patient’s fallopian tubes through which eggs travel from the ovaries to the uterus(womb).

Subsequently, having observed and followed all relevant medical advice, the lady for whom we were acting discovered that she was pregnant. This came as a great shock to her and her husband and they were upset about it.

The expert witnesses on both sides were in agreement that if the consultant applied the clips known as Filshie clips to the fallopian tubes he was not negligent. If he did otherwise however, that is, failed to fix the clips on either side, he was negligent. If he put them in the proper place, the question arose as to how the Plaintiff became pregnant.

The expert that we engaged provided compelling evidence which was accepted by the High Court. This expert was critical of the Consultant who carried out the procedure but also of his note keeping.This expert was of the view that it was clear that the Consultant had not in fact put the Filshie clips on the fallopian tubes as he intended to do and as he thought he had done. He pointed to the doctor’s note as to the difficulty he found which he had to deal with surgically, namely the omental adhesions an(adhesion is a band of scar tissue) and suggested that this would be a reason why the doctor put the clips on the wrong part of the body. It would be unusual for a Gynaecologist to apply two clips to each Fallopian tube as the Consultant had in this case but it was not negligent to do so and there are some doctors who follow that practice.

Our expert made the point that it would be practically unthinkable to have a situation where two properly applied clips on each side would have permitted a subsequent pregnancy. The effect of applying a clip is in effect to cause the necrosis or death of the captured tube tissue and obviously two clips would have an even greater impact of that kind. One of the possibilities of failure is that the tube may re-grow or re-constitute itself in such a way that the egg may nevertheless flow from one part of the tube to another but this is even less likely in the case of two clips on each side.

Both our expert and the expert on behalf of the Defendants agreed that there is a risk of failure of a sterilisation procedure which is 0.5%. Some causes are due to clinical error and some are due to natural causes. But it is a rare circumstance. Both experts agree that there was no regeneration of the fallopian tissues in this particular case and this eliminated one of the major causes of failure that could have come about in the absence of negligence on the part of the consultant.

The Court found that based on our expert’s evidence that the probability is that the Consultant did not apply the clips correctly to the fallopian tubes.

The Court also accepted our expert’s evidence that if two clips were applied on each side there was no question of recanalisation (the fallopian tubes reattaching).

Finally the Court concluded that there was no reasonable probable explanation for the pregnancy if the sterilisations was carried out properly.

After a hearing over five days, when liability was strenuously challenged by the defendants, the Court found in favour of our client and awarded her €100,000 damages for her injuries together with her special damages (out of pocket expenses that arose as a result of the case).

For further information or advice in relation to a medical negiligence claim, please contract Adrian Frawely of the litigation team at Dermot G O'Donovan Solicitors at afrawley@dgod.ie