On 26 August 2014, the appellant Dr Nita Dhupar, an Obstetrician & Gynaecologist, performed a laparoscopic tubal ligation on the respondent, Ms Jodie Lee. The surgical procedure involved using 'Filshie clips' to clamp the Fallopian tubes, with the intention of providing permanent contraception. Approximately nine months after undergoing the surgery, the respondent fell pregnant.
Ms Lee subsequently sued Dr Dhupar for malpractice, alleging that the doctor had not correctly applied the Filshie clips or inspected whether they had been correctly applied. The claim was successful at first hearing in the NSW District Court and Ms Lee was awarded damages of $408,700.00 plus costs. Dr Dhupar appealed the decision in the NSW Court of Appeal, both as to liability and as to damages.
The appellant advanced, in total, twenty grounds for appeal. The substantive grounds against liability attacked the trial judge's reasoning underlying the conclusion that, more probably than not, the pregnancy was attributable to Dr Dhupar's departure from proper professional practice in applying the Filshie clips. It was hence in issue whether the failure of the procedure was due to Dr Dhupar's negligent insertion of the Filshie clip, or simply the result of an unrelated occurrence.
The key points of contention related to potential explanations as to how Ms Lee could have fallen pregnant following the procedure; Dr Dhupar's account of the procedure; the appearance of the left clip in intraoperative photographs; findings at caesarean section and salpingectomy; and the appearance of the clip on the HSG.
Whilst each of these individual issues were significant questions for consideration by the Court, it was ultimately deemed that resolution of the overarching question – that is, whether, more probably than not, the clip was not properly closed – depended on the mutually supporting effect of the whole of the circumstances, and not one or more of them in isolation.
This, however, is subject to exception - where a hypothesis capable of explaining the circumstances appears to be inconsistent with an irrefutable fact, that hypothesis may be excluded. It was hence necessary for the Court to consider each of above issues in depth.
There was no doubt that pregnancy could occur after tubal ligation, without negligence. The Court considered leading literature, which addressed possible circumstances in which tubal ligation may fail. Nonetheless, it was confirmed that the majority of failed sterilisations which occurred within nine months of the procedure were attributable to operator error.
Dr Dhupar advanced that, in accordance with her usual practice, after applying the Filshie clips, she inspected the tube and checked that the clips were locked. She also gave evidence that at the caesarean section, she observed the left Filshie clip to be involved in adhesions on the left Fallopian tube. However, Dr Dhupar's limited recollection of the procedure, combined with the fact that the operating surgeon could not identify the left clip during the salpingectomy, detracted from the proposition that Dr Dhupar followed her usual practice.
Intraoperative photographs of the application of the Filshie clips, alongside hysterosalpingogram (HSG) images, did not conclusively show whether the left clip was open or closed. These images nonetheless were able to confirm that the clip had been incorrectly placed and in a manner which would increase the chances of an incomplete closure. Similarly, the images did not demonstrate any current fistula or recanalization.
Using the evidence that was available to the trial judge, the Court of Appeal was unable to conclusively identify another potential explanation for the pregnancy post-tubal ligation.
It was in these circumstances that the Court of Appeal unanimously held that the trial judge was right to conclude that, on the balance of probabilities, Ms Lee's pregnancy was attributable to negligent operator error. It was more probable than not that Dr Dhupar had incorrectly applied the clip (as demonstrated on intraoperative photographs), failed to achieve full closure and locking of the clip (an inference from the circumstances), and/or failed to properly check that the left clip was completely closed and locked (as such a check would have revealed that it was not). Dr Dhupar's appeal was therefore dismissed.
This matter highlights the persuasiveness of a logical circumstantial case where alternative explanations for the outcome advanced by the defendant are highly improbable.
We would like to acknowledge the contribution of Kristen Scarcella (Law Clerk) to this article.