Doctor who botched sterilisation has to pay cost of raising childBMJ 2003; 327 doi: https://doi.org/10.1136/bmj.327.7408.183 (Published 24 July 2003) Cite this as: BMJ 2003;327:183
After a recent High Court decision it seems that doctors whose negligence results in a patient giving birth after a failed sterilisation operation might have to pay the costs of bringing up the children until they are aged 18.
In a 4-3 decision Australia's highest court held that an obstetrician and gynaecologist who performed an unsuccessful tubal ligation in 1992 must pay $A105 000 (£43 000; $68 000; €60 000) towards the costs of raising the woman's son.
Kerry and Craig Melchior sued after she gave birth to their third child, a boy called Jordan, five years after the laparoscopic sterilisation performed by Dr Stephen Cattanach. Ms Melchior was aged 40 at the time of the procedure.
It was claimed that Dr Cattanach failed to detect her right fallopian tube, which she allegedly had told him was removed in 1967 after an appendix operation, and only operated on her left.
The couple took legal action against the doctor and the state of Queensland for the pain, suffering, and costs associated with the pregnancy, the birth, and raising the boy.
The case went to the High Court for a decision on whether the costs of child raising were connected to the doctor's negligence. In a surprise decision that runs counter to similar cases in the United Kingdom and the United States the judges ruled in the family's favour.
Justice Michael Kirby said that not awarding costs for child rearing would be neither proper compensation for the family nor a sufficient civil sanction to discourage negligence among doctors. “The propounded distinction between the immediate and long term costs of medical error is not drawn in other cases of medical negligence,” he said.
The president of the National Association of Specialist Obstetricians and Gynaecologists, Dr David Molloy, said the judgment could force many practitioners out of business.
Dr Cattanach said: “This may encourage increased litigation for unexpected failures of sterilisation operations and of course undiagnosed pregnancies in general practice.”
The case has dominated newspapers' front pages, with warnings of a flood of litigation from patients claiming they were victims of botched contraceptive procedures and predictions that medical indemnity costs will rise even further.
The deputy prime minister, John Anderson, even joined the row, claiming that the High Court's decision reduced a child's life to the level of commodities, such as a DVD player or a fridge. “It is repugnant that the birth of a healthy child like Jordan should be the subject of damages,” he said.
Ms Melchior, whose story has been bought by a TV channel, said: “He's not a DVD player, he's not a dollar sign. He's loved and wanted.”
The Australian Medical Association said it was alarming that doctors were now liable for child support. “This compounds the indemnity problem we are having,” said a spokeswoman.
To reassure doctors, state governments moved to introduce legislation and reforms of insurance premiums and liability.
“If the High Court decision is allowed to stand, doctors may not be able to get adequate insurance to cover these procedures and therefore not be able to provide them,” said Queensland's attorney general, Rod Welford.
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