A man whose wife became pregnant after his unsuccessful vasectomy has failed in a bid for $102,000 compensation because he was "the author of his own misfortune".
The Human Rights Review Tribunal ruled that the man should not get the money - despite the doctor being censured and fined over the failed operation - because he did not follow medical advice after the procedure.
The man was operated on by Auckland doctor Johannes Wilson.
In September 2006, Dr Wilson was found guilty of professional misconduct, censured and fined $1000 by the Health Practitioners Disciplinary Tribunal. He was also ordered not to do any more vasectomies for three years.
The review tribunal was told that the couple, who have permanent name suppression, already had two children, but the wife's pregnancies had been complicated.
There were also financial reasons for them not wanting any more children.
In his evidence, the husband said that when he consulted Dr Wilson in July 2003, he was told that he should have his sperm count tested three months after the vasectomy and that he needed to be careful until testing showed that the procedure had been successful.
The husband said that Dr Wilson did not tell him of the need to have a nil sperm count and did not arrange for him to have a test.
Problems with bleeding, swelling and discomfort arose following the operation and the husband was taken to the emergency department at Auckland City Hospital.
The review tribunal said that when discharged after three days, the husband said hospital staff told him the vasectomy had been carried out correctly so he was "unconcerned about requiring future sperm testing".
The tribunal said there was nothing to suggest that the doctor was aware what the hospital had told the husband, or that the man might choose not to follow the advice to have a sperm count after three months and to be careful in the meantime.
In July 2004, his wife fell pregnant and the couple sought an award of $101,950, including $4300 associated with the birth, $3000 for equipment such as a layette, $54,650 as a result of the wife's lost income, $15,000 for lost autonomy and $25,000 for humiliation, loss of dignity and injured feelings.
However, the tribunal said the husband had "elected" not to have his sperm tested after the procedure.
"We do not consider that the defendant can be held accountable in damages for a choice that [the husband] made, which was against the explicit advice he [the defendant] had given and which seems to have been informed by, or at least encouraged because of, something that [the husband] was told at the hospital and of which the defendant was not aware."
Tribunal members "struggled" to see how the doctor should bear responsibility for the husband's decision not to get tested.