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O & G reflects on successfully defending standard of care in wrongful birth case

Nov 2, 2015

Following an unsuccessful claim for allegedly failing to warn a patient of the risk of pregnancy after an endometrial ablation, the Court of Appeal unanimously dismissed the patient’s appeal with costs ordered after she failed in her claim against Associate Professor Alan Lam in the Supreme Court of NSW in 2014.

A/Prof Lam reflects on the case and how he prepared for the trial, and shares his key lessons for members.

The case

In late 2004, A/Prof Lam, former President of the Australasian Gynaecological Endoscopy and Surgical Society, performed an endometrial ablation on Lisa Neville to treat severe menorrhagia. 

Ms Neville fell pregnant in December 2005 after undergoing the endometrial ablation because she was allegedly under the misapprehension that it was not possible for her to fall pregnant and therefore she did not use contraception or undergo tubal ligation.

She gave birth to a boy with what the court considered “significant” disabilities in August 2006.

Ms Neville alleged that A/Prof Lam was under a duty to advise her that following endometrial ablation there remained a risk of conception, albeit unlikely. As a result, she sought damages associated with the pregnancy, including the additional costs of raising her disabled child. 

Defending the lawsuit the “right thing”

A/Prof Lam said he was “totally surprised” when Ms Neville filed the claim and experienced a gamut of emotions.

He decided it was imperative to do the “right thing” to fight the case on behalf of the profession and to defend the standard of care he has always espoused and believed was delivered to Ms Neville.

“One would rather not have to go through it, but one needs to go through it and I chose to once I spoke to Avant,” he said.

Emotional roller coaster

Describing the litigation process as an emotional roller coaster ride, A/Prof Lam was ultimately sanguine.

“While the process seems very longwinded, arduous and traumatic, in fact, justice prevails,” he said.

“There were times when I felt angry or down that this was happening, at times I felt elated that finally I would get an opportunity to answer the questions that they put forward and there were times that I accepted it - that this is perhaps the reality of life.”

While all doctors deal with the impact of a claim against them differently, A/Prof Lam didn’t feel the need to turn to friends or colleagues during the process due to the ample support he received from Avant and his wife of 25 years, Deanne. He also let off steam playing golf and tennis. “It was a journey that I felt I could ‘walk alone’ shall we say, with the guidance of Avant,” he said.

Journal articles prove important

Articles which A/Prof Lam authored in 1992 also proved important to the case. These included an article published in the Australian and New Zealand Journal of Obstetrics and Gynaecology which advised that following endometrial ablation “women are advised to either continue with a safe method of contraception or to consider simultaneous laparoscopic tubal sterilization.”

“The article specifically raised issues that funnily enough many years later came to bear significantly upon my practice as well as the outcome of the case,” A/Prof Lam said.

“The words were very much a reflection of the caution that I believe we, gynaecologists who consider offering this procedure, should take to ensure that our patients are fully informed of the risks and benefits of that technique.”

Claim dismissed

His Honour Justice Beech-Jones in 2014 found that after considering the contemporaneous evidence and “apparent logic of events,” he was satisfied that A/Prof Lam gave Ms Neville the appropriate advice at a consultation in October 2004.

His Honour said Ms Neville “failed to discharge the onus she bore of proving that A/Prof Lam did not provide the advice that she alleges he was obliged to.”

The court ultimately dismissed the claim against A/Prof Lam.

Lessons for members

A/Prof Lam emphasises to members the importance of taking and documenting comprehensive medical notes, and providing information pamphlets and diagrams to patients and documenting these in the patient’s medical notes.

“Cases often happen some years after the event and the only records that we have to go on are our medical records, so I can’t emphasise how crucial medical records are,” he said.

Since the case, he has also developed an informed consent form which patients are asked to review and sign before any procedure.

“We use this as a checklist to ensure that the information that we provide in order to gain informed consent is as thorough and complete with every patient as I would like to see,” he said.

“Not only does the doctor have the chance to review the steps that he or she should ideally be taking, but it also gives the patients a reality check and an opportunity to ask any remaining questions before undergoing the procedure.”

Support key

Since the case, A/Prof Lam has joined Avant’s Medical Experts Committee – NSW Panel of Experts to share his personal experience with members.

“I’ve gained a much greater insight into the level of professionalism of Avant as an organisation and I’ve gained a lot of respect for the type of work that Avant provides and come to appreciate how important it is for its members,” he said.

Access to support resources

Members who are dealing with the stress of a claim or complaint need different types of support. Doctors can access a range of resources including Avant’s Health and Wellbeing website which offers tailored information to maintain your physical, mental and financial health. Avant’s Personal Support Program on 1300 360 364 also provides a range of support options for members who are suffering health issues, including a confidential counselling service.

Learn more

For more information on informed consent, view Avant’s Risk IQ resources:

Avant’s Risk IQ factsheet: Consent in difficult situations or click here to watch our short five minute video on gaining consent and material risk with Jo Montgomery, Senior Risk Manager at Avant.

Share your view

We welcome your feedback on this article – email the Editor at: editor@avant.org.au