A woman who underwent a "failed" contraceptive surgery in Wagga and subsequently fell pregnant and gave birth has been awarded more than $408,000 by the NSW District Court.
Wagga gynaecologist and obstetrician Nita Dhupar was last week ordered to pay damages including loss of future earnings and treatment expenses to a woman referred to in court by the pseudonym 'Jodie Lee'.
The court heard that Mrs Lee had multiple previous children and was referred to Dr Dhupar by her family doctor after she requested a tubal ligation procedure.
Dr Dhupar performed the procedure in Wagga in late 2014 using the Filshie Tubal Ligation System, also known as Filshie clips.
District Court Judge Leonard Levy stated in his judgement that in mid-2015, Mrs Lee experienced "upsetting symptoms of nausea, vomiting, and sensitivity to food smells, she was tested and found to have conceived".
The child was later delivered at Wagga Base Hospital via an emergency caesarean section that resulted in an "unfortunate post-operative wound infection".
"Though there is no doubt that the plaintiff's child is loved and cherished by the plaintiff, her husband and her family, the pregnancy and the subsequent birth of that child has had significant adverse effects on the plaintiff's life, on the amenity of her life, on her emotional wellbeing, and on her capacity to work," Justice Levy stated.
"Following the events complained of, the plaintiff not only developed mixed feelings about the birth of the [new] child, but she also developed a major depressive disorder on learning of and then experiencing the progress of her pregnancy, and all that this entailed for her."
Dr Dhupar had disputed claims that she engaged in professional negligence, arguing that Mrs Lee's pregnancy was the result of an inherent risk of failure associated with Filshie clips and that she had acted in a manner that was widely accepted in Australia as competent practice.
However, Justice Levy accepted expert testimony about probable issues with the procedure.
Professor Michael O'Connor, who appeared as an expert witness in obstetrics and gynaecology on behalf of Mrs Lee, testified it was "more probable than not the left fallopian tube was not occluded at the time of the tubal ligation procedure" due to "operator fault", which was one of the reasons for a "rare failure" in a surgical sterilisation.
Justice Levy stated that Mrs Lee had "satisfied the requirements" of the Civil Liability Act and "a finding of negligence on the part of Dr Dhupar necessarily follows".
"In my view, when Dr Dhupar operated on the plaintiff's left [fallopian] tube, she simply strayed from the manufacturer's recommended standard pathway for no sound reason," Justice Levy stated.
"In doing so she applied the left Filshie clip incorrectly.
"I am satisfied that on 26 August 2014, when Dr Dhupar operated on the plaintiff, she breached the duty of care that she owed to the plaintiff as her patient."
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Justice Levy awarded Mrs Lee $261,000 for her non-economic loss, $45,000 for past economic loss, $80,000 for future loss of earning capacity and $22,700 for treatment and out-of pocket expenses.
Justice Levy stated that Mrs Lee had been left with a major depressive disorder that fluctuated with her "feelings of shame and guilt" and showed "no signs of abating".
"Given her negative experiences to date, her [new] child will very likely be an ever-present stressor for her," Justice Levy stated.
"Her rural location and her family responsibilities make it difficult for her to obtain appropriate psychiatric treatment."
Justice Levy accepted testimony from Mrs Lee and her former employer that the pregnancy had disrupted her earning capacity.