Overview:

• Wrongful birth claims can include the negligent performance of a sterilisation operation or the failure to warn of the risks of failure of sterilisation procedures.
• Economic loss arising from the costs associated with raising a healthy child born as a result of a failed sterilisation procedure cannot be claimed in Queensland and New South Wales. 
• Lee (a pseudonym) v Dhupar [2020] NSWDC 717 found that the defendant was negligent in applying the Filshie clip to the plaintiff’s left fallopian tube, allowing the plaintiff to claim damages for economic loss after she sustained a psychiatric injury from the negligent sterilisation procedure.

As mentioned in our previous article, wrongful birth refers to a claim brought by the parents following negligent advice or treatment which deprives them of the choice of avoiding conception or the choice of terminating the pregnancy. Sterilisation procedures, including vasectomy and tubal ligation, have the potential to fail. However, these procedures have been reported to have a failure rate of <1%.[1] 

How Can I Claim Compensation From A Failed Sterilisation?  

To specifically claim compensation for injuries resulting from failed sterilisation, you will need to prove that the health professional performing the sterilisation procedure was negligent and that this negligence has resulted in an injury. Examples of these claims include the negligent performance of a sterilisation operation (failed vasectomy or tubal ligation) or the failure to warn of the risks of failed sterilisation procedures to prevent conception. 

In Queensland, the court cannot award damages for economic loss arising from the costs associated with rearing or maintaining a healthy child which is born as a result of failed sterilisation procedures, failed contraceptive procedures or contraceptive advice.[2] However, a claim may be brought to cover costs up to and including the birth such as antenatal, obstetric and labour care or pain and suffering the negligence has caused.

Case Example

The case, Lee (a pseudonym) v Dhupar [2020] NSWDC 717, highlights how a woman was awarded compensation following a failed sterilisation procedure. In this case, a surgical error was made during a tubal ligation, which resulted in an unplanned pregnancy. The plaintiff consulted the defendant in May 2014 with the view of having an elective tubal ligation to prevent future pregnancies. The plaintiff and her husband already had three children, and the plaintiff planned to commence full-time work. The defendant performed a tubal ligation in August 2014; however, the plaintiff found out she was pregnant in July 2015.

The plaintiff’s fourth child was delivered via caesarean section, and the plaintiff alleged the birth of the child had significantly impacted her emotional wellbeing and capacity to work. The District Court of New South Wales found that the defendant negligently failed to take reasonable precautions and breached their duty of care when applying the Filshie clip to the plaintiff’s left fallopian tube during the surgical procedure. 

It was found that the defendant applied the left clip significantly more lateral and around 2.9cm away from the manufacturer’s recommended position and the position endorsed by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Therefore, the Court found that the defendant’s positioning of the clip meant she was unable to demonstrate that the left Filshie clip was applied in a manner which would be widely accepted by professional peers in the reproductive medicine field as competent. 

No claim was made by the plaintiff for the costs of raising the child, presumably because the child born was not suffering from a disability. In both New South Wales and Queensland, the law limits parents' ability to claim for damages such as the economic loss incurred for raising a child if the child is born healthy and without a disability.[3] However, in this case, the Court found that the plaintiff had suffered economic loss because she was unable to work due to her psychiatric injury that arose from the failed sterilisation procedure, and she was entitled to recover damages. The plaintiff was awarded $408,700.00 in damages. 

The respondent appealed the decision, however, the Court of Appeal dismissed the appeal, finding that the plaintiff’s pregnancy was the result of “operator error” when applying the Filshie clip to the left fallopian tube during the sterilisation procedure.[4]

[1] Shilpa Vishwas Date, Jyoti Rokade, Vidya Mule, and Shreedher Dandapannavar, ‘Female sterilisation failure: Review over a decade and its clinicopathological correlation’ (2014) 4(2) International Journal of Applied and Basic Medical Research 81 – 85; Nivedita Bhatta Dhar and J. Stephen Jones, ‘Vasectomy: A simple snip?’ (2007) 23(1) Indian Journal of Urology 6 – 8.

[2] Civil Liability Act 2003 (Qld) s 49B.

[3] Civil Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A – 49B. 

[4] Duphur v Lee [2022] NSWCA 15.