JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MICALLEF & ANOR -v- MINISTER FOR HEALTH OF THE STATE OF WESTERN AUSTRALIA [2004] WADC 224 CORAM : EATON DCJ HEARD : 2 MARCH 2004 DELIVERED : 12 NOVEMBER 2004 FILE NO/S : CIV 1440 of 2001 BETWEEN : AMANDA ANN MICALLEF First Plaintiff
JOHN CHARLES MICALLEF
Second Plaintiff
AND
MINISTER FOR HEALTH OF THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords: Tort - Duty of care of a medical practitioner - Alleged failure to advise of the risks of further pregnancy - Tubal ligation - Unwanted pregnancy
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Legislation:
Nil
Result: Plaintiffs' claim dismissed Representation:
Counsel:
First Plaintiff : Mr T H Offer
Second Plaintiff : Mr T H Offer
Defendant : Mr P D Quinlan
Solicitors:
First Plaintiff : Trewin Norman & Co
Second Plaintiff : Trewin Norman & Co
Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
F v R (1983) 33 SASR 189
Melchior & Anor v Cattanach & Anor (2001) Aust Torts Reports 81-597
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Case(s) also cited:
Allen v Bloomsbury Health Authority [1993] 1 All ER 651
Cattanach & Anor v Melchior & Anor (2003) 199 ALR 131
CES & Anor v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
Chappel v Hart (1998) 195 CLR 232
Gentile & Anor v Ferri [2004] WADC 144
Kars v Kars (1996) 187 CLR 354
Thake v Maurice [1986] 1 QB 644
Van Gervan v Fenton (1992) 175 CLR 327
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Introduction 1 By their Amended Statement of Claim Amanda Ann Micallef and John Charles Micallef claim against the Minister for Health of the State of Western Australia ("the defendant") that the defendant, through its servants or agents was negligent. The plaintiffs plead that on 21 January 1998 a servant or agent of the defendant performed a Pomeroy tubal ligation upon the first plaintiff. The particulars of negligence alleged by the plaintiffs are that the defendant or rather its servants or agents: (a) failed to advise the first plaintiff that the failure of tubal ligation was in the region of one in one thousand for the first 2-3 years and increased with time; (b) failed to advise the first plaintiff that the failure rate of the tubal ligation procedure when performed at the time of caesarean section was slightly higher; (c) failed to advise the first plaintiff to undergo testing to determine whether or not the procedure had been a success; (d) failed to advise the first plaintiff to take alternative contraceptive precautions until such time as the plaintiff could undergo testing to determine whether or not the procedure had been a success. 2 The plaintiffs claim that had the first plaintiff been advised of the true failure rates and the increased risk of failure if the procedure was performed at the time of caesarean section she would not have proceeded with the procedure at that time but would have had it performed as soon as practicable after delivery of her fourth child when the risks of failure of such procedure were at a minimum. The plaintiffs further plead that in the event that the first plaintiff had decided to proceed with the tubal ligation at the time of caesarean section she would have undergone tests as soon as practicable thereafter to determine whether or not the ligation had been successful and she would have investigated and implemented additional and/or alternative contraceptive procedures. 3 The plaintiffs plead that as a result of the negligence of the defendant the first plaintiff fell pregnant with her fifth child on 24 October 2000. It is said that the she has suffered consequent loss and damage, undergone
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pain and suffering and will continue to sustain loss and damage while having to provide services to the child on a gratuitous basis and suffering from a loss of enjoyment of life. Further, the plaintiffs plead that they will continue to incur the expense of feeding, clothing, raising and educating a fifth child until such time as that child is independent. The first plaintiff said that she will be delayed in her return to the work-force and both plaintiffs plead that they will incur additional housing costs associated with the raising of the fifth child as well as having to provide gratuitous services for that child. 4 In brief, the plaintiffs' claims are denied, both in respect of negligence, loss and damage. 5 The plaintiffs are husband and wife. The first plaintiff is presently aged 34 years having been born on 18 May 1970. The second plaintiff is presently aged 39 years having been born on 6 November 1964. The second plaintiff is by occupation a truck driver/storeman. They have a young family such that the first plaintiff is fully engaged in home duties. Their first child, Matthew, was born on 1 July 1992. Their second child, Timothy, was born on 4 November 1993. Subsequently, the plaintiffs took steps to avoid conception by practising what is known as the rhythm method. It proved to be unsuccessful because their third child, Nathan, was born on 7 June 1996. Following the birth of Nathan the first plaintiff resumed taking a contraceptive pill. Despite doing so their fourth child, Michael, was born on 21 January 1998. At the age of 27 years the plaintiff had four children, all boys under the age of six years. 6 The first plaintiff said that, following the birth of Michael, she decided that she would have no more children. She was not working. The family had only a modest income, lived in a three bedroom house and were finding it difficult to make ends meet. 7 During her pregnancy with Michael Mrs Micallef said that she discussed the possibility of a tubal ligation with a doctor at an antenatal clinic. She enquired as to the possibility of having a tubal ligation at the time of birth and was advised that it could only be done if the birth was by caesarean section. 8 It is the case that Michael was born by caesarean section. Mrs Micallef is not certain as to when she became aware that a delivery by that means would be necessary. She said that she told a midwife on the day of the delivery that she wanted to have a tubal ligation. Mrs Micallef said that prior to her admission to hospital on that day her
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knowledge of the effectiveness of a tubal ligation was derived from having read a book called "Everywoman" by a Dr Derek Llewellyn Jones. She understood from having read that book that a tubal ligation precluded the possibility of further pregnancy. She was admitted on the day of delivery to Osborne Park Hospital. 9 As to the events at Osborne Park Hospital on 21 January 1998 three persons gave evidence. They were the plaintiffs and Doreen Sih-Kin Yeap, the gynaecologist and obstetrician who performed the caesarean section and tubal ligation on that day. The only additional evidence as to the events of the day was in the form of the hospital records which had been produced to the Court under subpoena.
The Osborne Park Hospital records 10 By a document dated 7 August 1997 entitled "Request for Consultation" signed by a general practitioner, Dr Ponos, and addressed to the Obstetrics Outpatients Clinic at Osborne Park Hospital Mrs Micallef was referred by reason of her pregnancy. Dr Ponos noted among the reasons for his referral: "she requests her tubes to be tight (sic) at delivery". That document is stamped as having been received by the hospital on 11 August 1997. 11 The hospital's admission record indicates that the plaintiff was admitted at 11.16 am on 21 January 1998. Her husband signed her admission request. Mrs Micallef signed a form entitled "Consent to Treatment Form" whereby she consented to undergo the procedure/treatment of caesarean section and tubal ligation "the nature and purpose and risks of which has been explained to me by Dr Yeap". Dr Yeap signed that form confirming: "that I explained the nature, purpose and risks of this procedure/treatment to the person who signed the above form of consent". The signature of both Mrs Micallef and the doctor were dated 21 January 1998. 12 Although the admission form indicated an admission at 11.16 am the hospital records suggest admission somewhat earlier. For example, other records suggest that she was admitted at 10.40 am having had good contractions since 8.30 am. A vaginal examination was carried out at 10.45 am. At 10.55 am Dr Yeap was paged. At 11.05 am Mrs Micallef was seen by Dr Yeap who prescribed analgesia. At 11.15 am Pethidine was administered. Thereafter Mrs Micallef was prepared for an emergency caesarean section under general anaesthetic. The summary of labour and delivery indicated that membranes ruptured at 11.38 am and that a child was born at 11.59 am delivered by Dr Yeap.
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The evidence of Dr Yeap
13 Doreen Sih-Kin Yeap was called by the defendant. She is a practising gynaecologist and a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. She no longer practises obstetrics. She graduated from the Medical School of the University of Western Australia in 1991 and commenced work as an intern at Sir Charles Gairdener Hospital undertaking surgery and general medicine. In 1993 she completed a three month internship in gynaecology at King Edward Memorial Hospital. Following that she spent a year at King Edward Memorial Hospital as a resident in obstetrics and gynaecology. She subsequently continued practice in South Australia. She was clearly very experienced, having performed many vaginal deliveries and caesarean sections. She had carried out sterilisation procedures such as tubal ligation at caesarean section and laparoscopic sterilisation. I accept that Dr Yeap was very experienced and expert in her field. 14 Dr Yeap carried out the caesarean section and tubal ligation upon Mrs Micallef at Osborne Park Hospital on 21 January 1998. She had, when she gave evidence, no recollection of Mr and Mrs Micallef or that event. She was able to give evidence of what was her practice established over several years. She was assisted by the hospital notes to which I have referred. 15 In relation to the consent form Dr Yeap said that she would have explained the procedure and the possible complications of it and then signed the form. Ordinarily, the patient would sign first. In relation to a caesarean section and tubal ligation Dr Yeap said she would have explained the procedure and the side effects and complications. She confirmed that her ordinary practice would involve an explanation to the patient of the medical risks, the failure rate and the permanency of the procedure. 16 Having been referred to the operation record she confirmed that reference was made to "pomeroy's procedure" and that she had made the note "tubes to pathology". The former indicated that a tubal ligation had been carried out and the latter that she had sent a portion of each of the right and left fallopian tubes to pathology in order to confirm that she had indeed removed those tubes. The report which returned confirmed that the portions were both segments of fallopian tube confirming the effectiveness of the procedure. Dr Yeap indicated that, with the report from pathology, no further testing was necessary.
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17 In cross-examination Dr Yeap was again referred to the hospital records and agreed with the record that she would have seen Mrs Micallef at 11.05 am having been paged some minutes before. She said that she would have talked to Mrs Micallef first and then undertaken a vaginal examination. That would have taken two to five minutes depending on how difficult the examination proved to be. Unsure as to the lie of the child Dr Yeap requested an ultrasound. She agreed that not long after 11.15 am her suspicion of difficulty was confirmed and the need for a caesarean section was clear. Mrs Micallef was then seen by Dr Beahan, an anaesthetist. She was generally prepared for surgery. Dr Yeap agreed that the records indicate that Mrs Micallef was transferred to theatre at 11.35 am. She agreed that between 11.05 am and 11.35 am she would have been present with the patient for most of the time. The need for a caesarean section would have been apparent from about 11.15 am.
18 It is clear that during the period between 11.05 am and 11.35 am a situation of increasing urgency developed. When asked how long it would be before the effect of Pethidine was felt she replied about 20 minutes. When asked whether she would concede that, given the difficulty of the situation that she was faced with, it was possible that she could have overlooked one of her standard items of warning, for example, the risk of pregnancy. She replied "No, definitely not". She was asked whether, if a patient and family members were present, there might be factors present which would prevent them from hearing her warning. She conceded that with a patient obviously in labour, experiencing the pain of contractions, the patient might be vocal. She indicated that she would accommodate that by waiting until she could be heard and starting again if necessary. 19 In re-examination Dr Yeap indicated that she had recently finished a two year term at King Edward Memorial Hospital as Registrar. She was asked how often she had been confronted with deliveries which were of a serious or high risk nature and she replied: "all the time." When asked as to her training in relation to how she would react to a situation like that she replied: "calmly and effectively." As to her answer in cross-examination that she would definitely not leave out a part of the standard warnings she said: "I don't do this lightly. I feel quite strongly about doing laparoscopic sterilisation at a caesar and usually try and talk people out of it in a clinic situation. So even though she has actually been seen at the clinic and probably even beforehand
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with the GP I would actually try and talk people out of this procedure because of the risk of failure." 20 I assume her reference to "laparoscopic sterilisation" was a mistake and that she meant tubal litigation. 21 Earlier in her evidence Dr Yeap had explained that with laparoscopic sterilisation clips are placed on the fallopian tubes as opposed to sterilisation done at caesarean section when clamps are placed over the tubes and a segment cut out with the tubes being then tied. The segment excised can then be tested to ensure that it was the fallopian tube and not some other structure which had been tied. When asked as to the risks of the laparoscopic procedure she said there were the obvious risks involved with possible bowel injury, bladder injury and large blood vessel injury. In addition, there would be risks related to infection of or bleeding from the wound through which the laparoscope had passed. Finally, there were risks associated with having put clips on tubes. They might not be put on the correct structure but rather, for example, on a ligament. That would lead to a risk of failure in terms of a pregnancy. The risk of failure, she said, from the laparoscopic procedure was two or three in a thousand. The difference between that procedure and a tubal ligation at caesarean section was the ability to remove a segment of the tube which could then be sent to pathology to confirm what it was that had been clipped and tied. Dr Yeap said that the failure rate of the latter procedure was higher by a factor of two or three times than the failure rate associated with laparoscopy. 22 When asked as to her practice in relation to a situation where there was a caesarean section and proposed tubal ligation she said: "It really depends upon when the consent is done; whether its in a clinic situation or just before we need to do the caesar. A caesarean section, I'd go through the reasons why the caesarean section is required. In this case the baby was transverse with feet presenting. The problem with that is that without the head keeping a seal on the cervix, when the membranes rupture, as its liable to at any time in labour especially with multipara women who have had babies before then there's no head there, like in this case, with feet presenting, often the cord will come down and if the cord comes down then the baby could be in major strife. There could be a catastrophic event. The baby could die or could be severely damaged. So I have explained that’s the
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reason why this patient needed a caesarean section; needed it was soon as possible." She explained that the risk from caesarean section included infection, haemorrhage, bladder injury, bowel injury and uterine injury. She went on to explain that if a patient wanted a tubal ligation at the same time as a caesarean section she would inform of the risks associated with having the tubal ligation done which, she said, was infection and bleeding and she would explain that the risk of failure is higher than with the laparoscopic method. She said that the risk was related to fistula formation. When asked whether a statement as to the risk of pregnancy being higher was always part of her standard advice she replied that it was. She said that she would only explain why it was higher if the patient asked. As to tubal ligation at the time of caesarean section she said: "Its not something I like to do as a routine. I prefer to actually have discussed it at a clinic situation where I've got more time to talk about it. I would prefer not to do it, like the tubal ligations, as a rule, at caesarean section because of the high risk of failure and also a lot of people do change their mind after. I prefer to do a lap steri at a later date." She confirmed that she usually communicated that preference to the patient.
The evidence of Amanda Ann Micallef 23 Mrs Micallef said that at about 8.30 am on 21 January 1998 she telephoned the Osborne Park Hospital and her mother because she had begun having contractions. She then telephoned her husband who was at work. In due course her mother and grandmother arrived at her home. She said that it took about 10 minutes to walk from the house to the car because her contractions were so painful. She said that during one contraction she had to sit and wait for it to pass. When her husband arrived home from work he drove his wife to the hospital. Her mother stayed at home to look after their children. I assume that her grandmother did also although that is not clear. 24 Mrs Micallef remembers that, not long after her arrival at the hospital, a midwife conducted a vaginal examination. She became aware that things were not progressing normally. Another person was called and conducted a further vaginal examination. Mrs Micallef could not remember who that was. When asked why she said:
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"Because – you probably wouldn't know personally but when your having very, very painful contractions and you are having a vaginal exam done at the same time its very very very very very very even more painful than it is normally." When asked whether she could recall anything about the person who conducted the second examination she replied: "Well, I was not looking that way because I was just trying to keep my eyes closed, control my breathing and trying to relax things as much as possible so that they could do the exam properly." She remembers that after the second examination someone spoke to her and told her that the baby was in a transverse lie and that a caesarean section would be necessary. She agreed that she had been told that if she did not have the baby by caesarean section there could be a cord prolapse leading to an emergency. She was not able to say whether the person that gave her that explanation was the same person that had conducted the second vaginal examination. She said: "I'm not really too sure because I was just – I was there. I was in a lot of pain and I had actually asked for the gas and got given a shot of Pethidine instead and so it was very very – it was just a really traumatic experience." She was not able to say whether the person who had informed her of the need for a caesarean section and explained the reasons why was male or female. She said that the person that spoke to her about the caesarean section told her also about the risks of having a general anaesthetic. She agreed that she had been told about the "risks of nicking the bowel and bladder and stuff like that…which they tried to avoid by putting a catheter in and things like that." She said that she had her eyes closed as she tried to control the pain. She described having a "hellish labour". 25 Mrs Micallef was shown the form entitled "Consent to Treatment Form" and was referred to the mention of Dr Yeap in that form. She said that she didn't remember the doctor by name saying that she was given a piece of paper and to be able to undergo the caesarean section to stop her labour, when asked to sign it, she did so. When asked whether, when she signed the document Dr Yeap had explained the nature of the procedures to be undertaken, their purpose and their risks she replied: "No. That wasn't explained to me. There was no risks given on the caesarean…of it failing, for me to fall pregnant again."
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26 When asked in cross-examination whether it was possible that Dr Yeap had quoted the failure rates for a tubal ligation procedure to her she replied: "No, definitely not." When pressed on the proposition that it was possible but that she did not remember Mrs Micallef replied:
"Yes, I know, but like I – when you're trying to control your breathing and trying to keep as relaxed as possible, the first tendency that you do is close your eyes and with a lot of other voices going on and having an anaesthetist that can't find a vein to put the bung in ready for the operation and doing a very very bad job of it at the same time you know its – everything was going on at the same time, so. I mean like I'm not dismissing that she may have said that there were some risks but it wasn't put down clear enough with the stressful times, if it was said, for me to actually comprehend it and hear it properly because there was a lot of stuff going on at the same time." When asked then if it was possible that the risk were explained to her at the time she replied: "It could have been but I didn't hear it, and if the risks are given to you, aren’t they supposed to make sure that you do fully hear and comprehend the risks at the time?" Mrs Micallef shortly after said: "There wasn't the actual time to sit down and go through, 'this risk, this risk, this risk' I was just listening to things as people were saying them, like, 'the catheter needs to go in because'…but it wasn't a blow by blow thing and it wasn't something that I actually managed to pick up and read." 27 Mrs Micallef said that before going to the hospital on the day of the delivery she had read the book "Everywoman" by Dr Derek Llewellyn Jones and had discussed the prospect of a tubal ligation with her general practitioner. She agreed that she went to the Osborne Park Hospital in the knowledge, derived from the book "Everywoman" that a tubal ligation was a permanent solution, in other words, that there was, consequent upon that procedure, absolutely no risk of pregnancy. She said that her general practitioner had not advised her to the contrary. 28 Mrs Micallef said in cross-examination that she wasn't aware that a tubal ligation had been carried out until she read her file on discharge from the hospital. She agreed that she had, both prior to arrival at the hospital and on admission requested tubal ligation but was uncertain as to
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whether the procedure had in fact been carried out. When asked why she was uncertain she said: "Well they were saying, you know – they were saying to talk my husband out of it – because of my age and this, that and the other – and myself out of it because of my age." When asked to clarify she said: "To talk me out of having my tubes done because of my age…there was somebody trying to say, 'but she's too young'." She then said: "My husband took the discussion away from me at that stage because I was just in so much pain and I couldn't take any more of the …" When asked whether it was possible that the risks of a tubal ligation were a consideration mentioned at the time when she was being discouraged she said: "Definitely not." 29 Mrs Micallef agreed that she had come to the hospital firm in the knowledge that she would have her tubes tied.
The evidence of John Charles Micallef 30 Mr Micallef confirmed that he picked his wife up and took her to the hospital and was with her in the examination room until she got taken to the operating theatre. He remembered quite definitely that his wife was examined by a midwife and that a second person was called in to conduct a further examination. He explained that following the first examination his wife was upset and distressed and the midwife was not happy with her findings. When asked as to the person who conducted the second examination he replied: "I honestly could not put a face to that. It was pretty stressful." He did recall a discussion with an anaesthetist and that there was some difference of opinion as between what his wife wanted and what the anaesthetist wanted to do. He was asked whether he recalled any other discussions about caesarean section or any other procedure in his presence and he said: "Not while Amanda was in the room. I had another discussion afterwards with, I believe, either a midwife or a theatre nurse as to regards of the tubal ligation."
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When asked about that discussion he said that the person was an Asian lady who was very adamant that his wife was too young to have her tubes cut and tied. He said that he pointedly told her that they had four children and did not want any more. When asked whether there was any discussion about the risks of falling pregnant following a tubal ligation he replied "no" saying that he would definitely remember such a conversation if it had taken place. 31 In cross-examination Mr Micallef made it clear that both he and his wife had decided upon a tubal ligation well prior to their arrival at the hospital on 21 January 1998. He said that he could not actually remember a second vaginal examination being carried out. He agreed that the room got "pretty crowded". He couldn't say who the other people were but he definitely remembered a midwife with an Irish accent, an anaesthetist and a male midwife or orderly. When asked whether the scene appeared chaotic for parts of the time he replied "at best, yes". He agreed that he wasn't necessarily paying attention to all aspects of what was occurring in the room at all times. He thought that it was the Irish midwife who carried out the first vaginal examination who told him of the necessity for an emergency caesarean section. When asked whether he remembered a doctor more definitely indicating the need for a caesarean section he replied: "I honestly do not recall". When asked if he remembered discussions with the doctor who was identified as the doctor who was going to do the procedure he said that he did not. He said that he understood that the Asian lady who spoke to him was one of the theatre staff or a midwife. When asked whether it was possible that the Asian lady was the doctor who came in to do the second examination he said that he didn't think so explaining that the discussion with the Asian lady took place after his wife had gone to theatre. He was then left in the room by himself and the lady came back in. He agreed that if an Asian lady had, in fact, conducted the second examination it was more than likely a different person to the one who spoke to him following his wife's departure for theatre. He did not remember anyone speaking with his wife about the risks associated with caesarean section. He was specifically asked about the risks relating to infection, bleeding or laceration of the bowel during the operation. He replied that he had no recollection. He was then asked: "That might have been discussed with your wife but that wasn't something that you were party to?" and he replied: "I couldn't say what was discussed with my wife. He went on to say: "I could not say whether the doctor talked to her and I was there, I just do not remember." He did remember his wife signing the necessary consent forms. He could not remember who gave her that form. He did confirm that the Asian lady endeavoured to discourage his wife from having the tubal ligation at that
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time. He then said that he had no recollection of anyone discouraging his wife from having the procedure at that time. He admitted: "It could quite possibly have happened that way. I do – the discussion I had with the Asian lady was very verbal or a strong discussion." It was put to him that that could have been a discussion which occurred both while his wife was in the room and after she had gone to theatre. He replied: "In all honesty, I can't say it was; you know, it was a long time ago." When asked whether he remembered there being a reference to the risks associated with pregnancy being higher when the procedure was performed at the time of caesarean section he replied: "Definitely not. That was not in the discussion. The discussion was wholly and solely from this Asian lady's point of view, that Amanda was very young to have not have any more children and I stated categorically that we had four children and we didn't want any more." He agreed that the discussions that did occur occurred within a reasonably short period of time some five or six years prior to his giving evidence. He agreed that he gave no thought to what was said in the room at the hospital on that day until he discovered that his wife was again pregnant with their fifth child. That child was born on 24 October 2000. I presume that he learnt of the pregnancy in or about February of that year some two years after the events at the Osborne Park Hospital. He agreed that when they discovered the fifth pregnancy they discussed what it was that they remembered of 21 January 1998.
Findings of fact as to what was said prior to the tubal ligation being performed 32 Dr Yeap does not remember the plaintiffs. She did not have an independent recollection of the caesarean section and tubal ligation performed on the plaintiff on 21 January 1998. From the defendant's point of view the best evidence was the hospital notes and Dr Yeap's evidence as to what she would have done and said in circumstances such as those described in the notes having regard to her usual practice. 33 The first plaintiff appears to have arrived at the hospital at about 10.30 am having been in labour with painful contractions for about two hours. Her child was born about 90 minutes later by caesarean section. She was accompanied by her husband to the hospital. It appears that he was with her until she was taken to theatre. When the plaintiffs arrived at the hospital they did so in the knowledge that she had requested of the hospital that her tubes be tied at delivery and that, following a tubal
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ligation, there would be no prospect of further pregnancies. They arrived at the hospital in the expectation that the birth of the child would be by way of normal vaginal delivery. 34 Neither of the plaintiffs had occasion to recall the detail of what occurred on that morning until the first plaintiff was discovered to be pregnant with her fifth child some two years later. Not surprisingly, neither had made notes of what was said by or to them at that time. Dr Yeap, of course, had the benefit of brief notes made by her following her vaginal examination of the first plaintiff and following the surgery and delivery, those notes being made on the hospital's standard forms as part of standard procedure. 35 The only document signed by the first plaintiff was the Consent to Treatment form. That document is a standard form. The evidence was that Dr Yeap wrote the first plaintiff's name and the words "caesarean section and tubal ligation" on that form at appropriate places. She dated the document "21 January 1998", wrote her own surname at the place provided to identify the name of the doctor who has explained the nature and purpose and risks of the procedure specified and at the place provided to specify the name of the person who is to undertake the procedure. The document was signed by Dr Yeap confirming that she had explained the nature, purpose and risks of the procedure to the first plaintiff. I infer that the form was completed and signed some time after the vaginal examination conducted by Dr Yeap when it was determined that an emergency caesarean section should be carried out. Dr Yeap was clearly aware of the request for a tubal ligation at the same time as she included that as part of the procedure to be undertaken on the consent form. The plaintiffs were confronted with the unexpected need for an emergency caesarean section at about this time. The first plaintiff was in great pain. Pethidine was administered at 11.15 am. At about this time a number of things were happening and time was of the essence. At about this time the consent form was signed by the first plaintiff. Dr Yeap said that her practice in such circumstances was to explain why a caesarean section was required, explain the risks of caesarean section such as infection, bleeding and bladder, bowel or utero injury. She said, with respect to a patient requiring a tubal ligation, that her practice was to go through the risk associated with having that procedure done, those risks being infection, bleeding and the possibility of failure. She explained that she would point out that the risk of failure of such a procedure was higher than the risk associated with a laparoscopic sterilisation, indicating that she would not explain why that was so unless the patient specifically asked. She went on to say that she would usually, in a clinic situation,
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recommend that sterilisation be carried out later by the latter method. I find it difficult to accept that the plaintiffs can be so definite about what was not said while being so uncertain as to what was said. I have no doubt having heard from both Mr and Mrs Micallef that Mr Micallef was very firm about wanting a tubal ligation carried out. It was clear from the first plaintiff's evidence that there was some discussion in her husband's presence about having the procedure done at that time. Somebody was trying to persuade the first plaintiff not to have the procedure at that stage. She said that her husband effectively took charge because of the state she was in. If such a discussion did take place prior to the first plaintiff being taken to theatre it seems likely that it was a discussion that involved Dr Yeap and both plaintiffs in circumstances of great stress. 36 I accept that Dr Yeap, as an experienced doctor, having carried out many procedures such as that carried out on the first plaintiff, as part of her standard practice, advised in the terms described by her. As she said, the circumstances in which such advice might be given could vary considerably. It might be given in the relatively calm circumstances of a prenatal clinic. It might be given in the relatively hectic circumstances of the preparation for an emergency caesarean section. I am not persuaded that, on this occasion, Dr Yeap completed the consent form but failed to give appropriate warnings to the first plaintiff as to the risks associated with both caesarean section and tubal ligation. On the balance of probabilities, I am satisfied that she did so and that, with respect to the latter, she counselled the first plaintiff against undertaking a tubal ligation on the basis that the risk of failure was higher and the possibility of pregnancy greater than if the procedure were later carried out by laparoscopy. 37 The plaintiffs assert that the defendant was negligent in that Dr Yeap failed to advise the first plaintiff that the failure of tubal ligation sterilisation was in the region of one in one thousand for the first two to three years and increased with time, that the failure rate of the tubal ligation procedure when performed at the time of caesarean section was slightly higher, that the first plaintiff should undergo testing to determine whether or not the procedure had been a success and that she should take alternative contraceptive precautions until such time as the plaintiff could undergo testing to determine whether or not the procedure had been a success. So far as the second of those allegations are concerned I am satisfied on the balance of probabilities that it has not been made out. I find that it is more probable that Dr Yeap did, in accordance with her usual practice, advise the first plaintiff that the failure rate of a tubal ligation when performed at caesarean section was higher than if the
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procedure were undertaken laparoscopically at a later stage. So far as the first of the allegations of negligence is concerned, on the evidence, I am not able to conclude that Dr Yeap advised the first plaintiff as to the failure rate in the first two or three years and beyond. The question of whether she was negligent in failing to do so is a matter for determination. 38 I conclude that Dr Yeap did not advise the first plaintiff to undergo testing to determine whether or not the procedure had been a success or that she should undertake contraceptive precautions until such time as the plaintiff could undergo such testing. Again, the question of whether she was negligent in failing to do so is a matter for determination. 39 The plaintiff called Roger James Pepperell, Professor of Obstetrics and Gynaecology from the University of Melbourne. He had prepared a report dated 27 October 2000 which became exhibit 7. In that report he said: "The risk of failure of a Pomeroy procedure done in the non-pregnant state, or other forms of sterilisation such as laparoscopic filshy clip procedures is generally accepted to be about one in one thousand for the first 2-3 years after the operation. When the procedure is performed at the time of a pregnancy, such as immediately following an abortion, or at the time of caesarean section the failure rate is slightly higher but probably no higher, in general terms, than two per thousand." He went on to say that it is certainly the case that the chance of fertility is increased in patients who have their sterilisation procedure performed at the time of caesarean section. He noted that the increased failure rate overall is very small. 40 In cross-examination Professor Pepperell was referred to the hospital notes and in particular the histopathology report. It is clear that, during the course of the procedure undertaken by Dr Yeap, two portions of the left and right fallopian tubes were excised and sent to pathology. The report indicated that the full circumference of each tube was present when examined at pathology. Professor Pepperell agreed that such a report would be the best indication of the procedure having been carried out successfully. He said that the possibility of pregnancy following a successful Pomeroy procedure might likely result from the development of a fistula being a hole between the internal lining of a fallopian tube and the external part of the tube adjacent to it. By means of such a hole an egg from the ovary might be fertilised by sperm. He said that pregnancies resulting from the development of a fistula tended to occur within the first
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two or three years. Until the development of a fistula the procedure will, to all intents and purposes, have rendered the patient infertile. He agreed that it was not possible to know in advance whether a particular individual would develop a fistula. Professor Pepperell agreed that the pathology report would have confirmed the success of the procedure. 41 In cross-examination Professor Pepperell indicated that there was a need to advise the patient that she should consider the procedure to be permanent and unlikely to fail but that the risk is about one in one thousand or slightly higher when done in relation to a pregnancy at a time of caesarean section. He agreed that the whole point of a Pomeroy procedure was to remove the need for the person to take further contraception to avoid pregnancy. He said that the only time that he would advise a patient, following such procedure, of the need to use contraception was if the procedure had been performed laparoscopically with difficulty in ensuring that the procedure had in fact been performed effectively. In such circumstances a hysterosalpingogram would be required and, pending the results of that procedure, advice as to the use of contraception would be appropriate. He concluded by saying that where the surgical procedure had been performed effectively it was not appropriate to give contraceptive advice. In re-examination Professor Pepperell concluded that provided the patient had been advised specifically of the risk of a pregnancy following a successful Pomeroy procedure at caesarean section the question of whether the patient thereafter wanted to use contraception was a matter of whether that particular patient was prepared to undertake the risk involved. 42 The plaintiffs went to the hospital on the day of the delivery under the impression that a tubal ligation was completely effective. It seems that the first plaintiff left the hospital assuming that a tubal ligation had been carried out and thereafter conducted normal sexual activity with her husband on the basis that it was completely effective. Clearly the plaintiff has no recollection of Dr Yeap speaking of a risk of pregnancy. It may be that she failed to comprehend what was being said to her by Dr Yeap given that she was undergoing a "hellish" labour. It may be that she paid little regard to what was being said given that both she and her husband were firmly of a view that the tubal ligation should be undertaken at the time of the caesarean section both in the firm belief that a tubal ligation would be completely effective. Neither plaintiff has asserted that Dr Yeap was informed of their pre-existing belief. On the evidence, there is no reason to assume that Dr Yeap had any knowledge of that pre-existing belief.
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43 The case of Melchior & Anor v Cattanach & Anor (2001) Aust Torts Reports 81-597 was decided by Holmes J in the Supreme Court of Queensland. The plaintiffs, Mr and Mrs Melchior, sought damages for wrongful conception following a sterilisation procedure carried out by the defendant, Dr Cattanach. The plaintiffs alleged, inter alia, that the defendant had been negligent in failing to inform or alternatively adequately inform Mrs Melchior of the risk or possibility that the procedure would fail and that she may not be rendered sterile. In that case the evidence indicated that Mrs Melchior had seen Dr Cattanach in late 1991, again on 2 January 1992 and that Dr Cattanach undertook the sterilisation procedure on 13 March 1992. Holmes J noted that neither, unsurprisingly, had a complete recollection of what had passed between them. He found that on the balance of probabilities Dr Cattanach did explain the procedure and give warnings both orally and in the form of a printed brochure. It appears that, as in the present case, the findings of fact made by Holmes J were largely based upon Dr Cattanach's evidence as to his invariable practice.
44 Holmes J found that Dr Cattanach was negligent in failing adequately to inform Mrs Melchior of the possibility that the procedure would fail to be effective because of the possibility of the continuing existence of the right fallopian tube so as to give her the option of considering further investigation in the form of a hysterosalpingogram. That negligence, he said, was a material cause of her pregnancy and the birth of the child Jordan. The latter part of that finding was, in part, a reference to the history given by Mrs Melchior to Dr Cattanach to the effect that in December 1967 as a young woman of 15 years she had been admitted to the Balmain Hospital in Sydney for an appendectomy in the course of which her right ovary and fallopian tube had been removed. 45 The surgery, a tubal ligation performed laparoscopically, was undertaken. Dr Cattanach was unable to discern any right ovary or right fallopian tube, consistent with the history that had been given to him. In fact, there was a right fallopian tube present, obscured by bowel adhesions which were almost certainly the product of the 1967 surgery. In consequence, Dr Cattanach applied a clip only to the left fallopian tube. Four and a half years later Mrs Melchior discovered that she was pregnant. Her son Jordan was born by caesarean section on 29 May 1997. Dr Cattanach had clearly undertaken the surgery in reliance upon the history given to him and in the belief that the right ovary and fallopian tube had been removed many years before. Holmes J considered that, in those circumstances, it was incumbent upon him to ensure that Mrs Melchior was informed, firstly, that the absence of the tube had not (Page 20)
been positively confirmed; secondly, that if it should prove to be present she faced significantly higher prospects of becoming pregnant than was usually the case after sterilisation; and thirdly, that there was available a procedure in the form of a hysterosalpingogram which was likely to disclose the existence of a functioning fallopian tube. The risk was one to which a reasonable person in Mrs Melchior's position was likely to attach significance and one to which Dr Cattanach should have been aware that she would have been likely in fact to have attached significance to. Holmes J found that it was not sufficient that Mrs Melchior had been warned of the risks of failure of sterilisation generally. He said that there was a material difference between that risk and the risk that she faced if the fallopian tube was still present. It was in those circumstances that he concluded that Dr Cattanach had been negligent and that the negligence was a material cause of the pregnancy and the birth of the child. 46 Generally speaking a medical practitioner owes a duty to warn a patient of a material risk inherent in a proposed treatment or procedure. (Rogers v Whitaker(1992) 175 CLR 479 at 490). In this case the risk was that of the first plaintiff again becoming pregnant. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. In the circumstances of this case there can be no doubt that the risk of pregnancy was a material risk. 47 Having regard to par 6 of the plaintiffs' Amended Statement of Claim, the alleged negligence is confined to advice given to the first plaintiff or rather the lack of proper advice as to the risks normally associated with a tubal ligation. Having found, on the balance of probabilities, that Dr Yeap did adopt her usual practice, as described above, par 6 of the plaintiff's Amended Statement of Claim, as particularised, requires that I consider the adequacy of the advice given. That begs the question of the content of the doctor's duty of care in such circumstances. In Rosenberg v Percival (2001) 205 CLR 434 Gleeson CJ said at 439 that in an action brought by a patient the responsibility for deciding the content of the doctor's duty of care rests with the Court, not with his or her professional colleagues. So far as the first plaintiff was concerned there seems little doubt that both she and her husband were insistent upon a tubal ligation at the time of caesarean section given that it was made clear that a caesarean section was urgently needed. What was important, from their point of view, was that they be told, firstly, that such a procedure was not completely effective in preventing subsequent (Page 21)
pregnancy and, secondly, that a laparoscopic procedure done later would improve the effectiveness of "sterilisation" by a small margin. The latter advice would afford the plaintiffs the opportunity of not undergoing a tubal ligation at caesarean section but adopting the marginally more effective procedure at a later stage. It was imperative that such advice be given prior to the caesarean section being undertaken. 48 Kirby J in Rosenberg v Percival(at 478-479) referred to a number of factors which might impact upon an expression of the content of a duty to warn that is realistic and achievable. In F v R (1983) 33 SASR 189 a woman who had become pregnant after an unsuccessful tubal ligation brought an action in negligence alleging failure by the medical practitioner to warn her of the failure rate of the procedure. The failure rate was assessed at less than 1 per cent for that particular form of sterilisation. King CJ considered (at 192-193) that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient and the general surrounding circumstances. In the present case the matter to be disclosed was the risk of pregnancy following a tubal ligation at caesarean section compared with the risk attendant upon a later laparoscopy. Also, in the present case, unbeknown to Dr Yeap the plaintiffs had a preconceived and erroneous notion as to the efficacy of a tubal ligation generally. It seems they were determined to go ahead with the procedure at caesarean section. A medical practitioner, in such circumstances, in discharge of his or her duty is not required to argue a case with a patient but rather to inform. The surrounding circumstances were, as already described, hectic. 49 My finding is that the first plaintiff was informed, in accordance with Dr Yeap's usual practice, that there was a risk of pregnancy following a tubal ligation and that the risk would be higher if the tubal ligation were carried out at caesarean section as opposed to later by way of laparoscopy. On the evidence of Dr Yeap as to her standard practice I do not conclude, as a matter of fact, that she went beyond informing the first plaintiff that there was a risk of pregnancy following a tubal ligation which would be higher if performed at caesarean section rather than later by way of laparoscopy. I do not conclude that she quoted statistics or numbers to the first plaintiff although, on the balance of probabilities, I find that she would have in some way characterised the degree or magnitude of the risk involved. (Page 22)
50 Given the first plaintiff's circumstances in terms of her need to have no further children it was important that she be told, prior to the tubal ligation, that the procedure was not without risk so far as further pregnancies were concerned. Dr Yeap discharged her duty to the first plaintiff by informing her that there was a risk of pregnancy and that it might be better in terms of the degree of risk to have the procedure done later. It is not possible to know precisely what was said at the time. I do conclude that both plaintiffs were insistent that the tubal ligation should proceed at that stage. It is clear that, following the procedure, the first plaintiff conducted herself either on the basis that she was confident in the knowledge that there was no chance of pregnancy or that she was prepared to undertake the risk. The latter seems less likely. In all probability her state of knowledge based on the information provided in the book "Everywoman" prevailed despite what was said to her by Dr Yeap. It may be that, in the particular circumstances in which Dr Yeap mentioned these matters to the first plaintiff, she paid no regard to what was being said to her or did not fully understand what was being said to her. 51 I conclude that, in all the circumstances, the duty owed by Dr Yeap to the first plaintiff was to inform her of the risk of pregnancy and to suggest a procedure which might be undertaken later with less risk. Her duty, having regard to the circumstances of the moment, did not extend to advising the first plaintiff that the failure rate of tubal ligation sterilisation was in the region of one in one thousand for the first 2-3 years and increased with time. I conclude that whatever information had been imparted by Dr Yeap to the first plaintiff she would have proceeded with the tubal ligation at the time of caesarean section in any event. This was not a situation where Dr Yeap had the luxury of lengthy calm discussion. There was no time to dwell on the question of the first plaintiff's comprehension or understanding of what had been said to her. 52 It is the case that Dr Yeap did not advise the first plaintiff to undergo testing to determine whether or not the procedure had been a success. She also failed to advise the first plaintiff to take alternative contraceptive precautions until such time as she could undergo testing to determine whether or not the procedure had been a success. In the present case it is apparent that the procedure itself had been successful, firstly, because Dr Yeap undertook the procedure without complication and secondly, because the histopathology report confirmed that she had indeed removed portions of the right and left fallopian tubes. It was suggested to Professor Pepperell that a practitioner would not as a matter of routine ask a patient to undergo a hysterosalpingogram following a tubal ligation at the time of (Page 23)
caesarean section unless there was something that had occurred at the time of the procedure to suggest that there was a problem. He replied: "You would only do it if you were concerned that your operative procedure had not been able to be performed satisfactorily. It would be very rare for that to be the case when the procedure was being done at the time of the caesarean section when you can completely visualise the tube and have it in your hand and make sure you've got as much as you need to get." He confirmed that following confirmation, by way of the pathology report, of the successful procedure the practitioner would not need to do anything further. 53 He said, in relation to the question of contraception: "The only time I would advise a patient of the need to use contraception is if the procedure had been performed laparoscopically and there has been difficulty in making sure that you got the whole tube and then until you knew what the results of the hysterosalpingogram were then you advise them to use other contraception. But where you have been happy with the surgical procedure performed it is not appropriate to give them contraceptive advice." 54 Having advised the first plaintiff of the risk of pregnancy and having had confirmation of the effectiveness of the procedure undertaken by her I conclude that Dr Yeap was not negligent in failing to advise the first plaintiff to undergo testing to ascertain whether the procedure had been a success and in failing to advise her to take alternative contraceptive precautions until such time as she could undergo such testing. In his report of 27 October 2000 (exhibit 7) Dr Pepperell noted that contraception had not been discussed with Mrs Micallef prior to her discharge from hospital. He said: "This would be the normal situation in obstetric hospitals as it is always assumed that the sterilisation procedure will not fail, despite the patient being warned that a very, very low failure rate is still a possibility." 55 It follows that I conclude that the defendant was not negligent as alleged by the plaintiffs. Their claim is dismissed.
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