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    Legally Speaking: Tubal ligation failure results in wrongful pregnancy claim

     

    Dawn Collins an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to [email protected].

    Tubal ligation failure results in wrongful pregnancy claim

    A 39-year-old Illinois woman went to her gynecologist in 2008 for a tubal ligation. One of her 3 children had sickle cell disease and she did not want to have another child with the disease. She had experienced complications from other forms of birth control.

    The patient’s history included 2 cesarean deliveries and, according to her statement, she had had a left salpingo-oophorectomy at a young age. An ultrasound done in 2004, however, indicated that the woman’s right ovary had been surgically removed and that a cystic interface had been identified on the left ovary at that time. 

    The patient had been scheduled for a tubal ligation 3 years earlier, but it was not performed because she could not be intubated. Her gynecologist then recommended and performed a mini-laparotomy and tubal ligation under spinal anesthesia. During the operation the gynecologist identified a Fallopian tube and ovary on the right side, but because of a large amount of adhesions on the left side, he could not visualize a left Fallopian tube or ovary. A tubal ligation was performed on the right side, but the physician did not remove all the adhesions on the left side because of the patient’s representation that she had a left salpingo-oophorectomy.

    Six months later, the woman had a positive pregnancy test and she later gave birth by cesarean to a child who was diagnosed with sickle cell disease. The physician who performed the cesarean did not find an ovary on the right side, but did find a tube that was shortened and wrapped around itself. He also took down the adhesions on the left side and found an intact left Fallopian tube and ovary. He ligated both tubes.

    Also read: A young woman dies after routine tubal ligation

    The patient had postoperative complications including a lung infection with surgical drainage, development of shingles, and post-herpetic neuralgia. She sued the gynecologist who performed the mini-laparotomy and alleged negligence in failing to properly evaluate her prior to the procedure, failing to actually perform a ligation on the right side, and failing to remove the left-side adhesions and discover the intact tube and ovary, resulting in the pregnancy.

    The physician claimed that further evaluation would not have provided any new information and that the risks of taking down the adhesions outweighed the potential benefits.

    The verdict

    A defense verdict was returned.

    Analysis

    In a malpractice case claiming wrongful pregnancy, the suit is brought by the parent(s) and claims a physician’s negligence in performing a sterilization procedure resulted in pregnancy. The usual damages sought are the costs and any pain and suffering from the negligent procedure, and the costs, both economical and emotional, from the pregnancy and delivery. The parents can seek damages for the costs of rearing a child, but this issue is problematic for jurors as they weigh those “costs” against the joy or emotional benefit of having a child. In this case, the parents also claimed extraordinary expenses of raising a child with sickle cell disease—the exact condition they were trying to avoid with the tubal ligation—and although the physician sought dismissal of that claim, the trial court denied his motion. This decision was upheld on appeal, so those damages would have been allowed if the jury had found negligence by the physician.

    NEXT: Loss of triplet pregnancy: What was the verdict?

     

    Dawn Collins, JD
    MS COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via ...

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