NSW doctor loses appeal to mother over ‘unwanted’ birth

A NSW doctor has been slapped with a $400k fine after performing surgery on a woman intended to result in permanent contraception — only for her to fall pregnant.

A NSW doctor will have to pay a $400,000 fine after losing an appeal over performing surgery on a woman that was intended to result in permanent contraception — only for the woman to fall pregnant nine months later.

And the same doctor who performed the surgical sterilisation coincidentally helped to deliver the woman’s baby via a caesarean, the NSW Court of Appeal has heard.

Obstetrician and gynaecologist Dr Nita Dhupar performed the procedure — which involves using Filshie clips to clamp the fallopian tubes so that they become sealed and eventually severed — on the woman, known by the pseudonym Jodie Lee, in 2014.

Ms Lee fell pregnant about nine months later and gave birth to her child in 2016.

She sued Dr Dhupar for negligence, alleging the doctor had not applied the clips correctly or had not inspected whether they had been properly applied.

The same doctor who performed the surgical sterilisation coincidentally helped to deliver the woman’s baby via a caesarean

Ms Lee won the case in the NSW District Court and was awarded $400,000 in damages, but Dr Dhupar appealed that decision on a number of grounds and, in a landmark court ruling, lost.

Importantly, three NSW Court of Appeal judges looked at the academic literature on the matter, which found “operator error” was the most likely cause of botched sterilisation procedures involving Filshie clips if a woman fell pregnant within nine months.

“The academic literature to which reference has been made is indicative that the most likely cause of failure of a tubal ligation with Filshie clips – particularly if pregnancy occurs in the first nine months after the procedure – is operator error in application of the clip,” Justice Paul Brereton told the court.

Dr Dhupar’s appeal was based on a number of grounds, including a claim that the NSW District Court judge had made a mistake in finding she had breached her duty of care by where she had placed one of the clips.

The court heard Ms Lee had been shocked over the “unexpected and unwanted” birth and that she is distressed that she does not feel the same attachment to her fourth child.

Ms Lee developed a major depressive order and became withdrawn from her husband and social circle following the birth, the court was told.

In siding with Ms Lee, Justice Brereton said her falling pregnant so quickly after the operation suggested Dr Dhupar had made a mistake when applying a clip.

“As to liability, the mere fact of (contraceptive) failure, occurring as early as it did, was suggestive of operator error in application of the clip,” the judge said.

“That hypothesis was reinforced by the circumstance that the left clip was applied at a sub-optimal point on the tube and incorporated extraneous tissue, increasing the chances of an incomplete closure.”

Justice Brereton upheld the $400,000 already awarded to Ms Lee in the NSW District Court.

Dr Dhupar will also have to pay Ms Lee’s legal costs.