Woman loses pregnancy case against medics

A high court judge has dismissed a case from a woman who became pregnant after having her fallopian tubes clipped.

However, in his written decision, Justice David Baragwanath has suggested that a change to the law be made requiring doctors to maintain a written and signed record setting out risks of operations to patients.

At the High Court in Blenheim in November, a woman -- whose name is suppressed -- sued Wairau Hospital doctor Owen Jennings and Nelson Marlborough District Health Board, claiming she was not warned in 1999 there was a chance an operation to have her tubes clipped could fail.

Less than a year later the woman, who is known as Patient A, became pregnant and gave birth to a girl with Down's syndrome. She sought to recover costs of bringing up her daughter, claiming she was not fully informed before the operation.

Dr Jennings, a highly qualified and experienced obstetric and gynaecological specialist, said during the court case that because of his experience with medical systems overseas, he was always "meticulous and pedantic" to ensure patients got the information they needed, and that he warned Patient A of the risk of failure.

Justice Baragwanath has now dismissed the woman's claim of negligence, saying the evidence did not establish that the health board and Dr Jennings failed to inform her of the risk of failure.

However, the judge said the honesty of Patient A's belief that she was not told of the risk could also not be disputed.

"Equally possible is that information to that effect (being told of the risk) was treated by Ms A's mind as within acceptable limits and that it therefore discarded the topic as something requiring further attention, which is why she did not later remember it," he said.

Justice Baragwanath said there was no evidence that it was negligent for a doctor to fail to obtain written consent on a form setting out in plain language the nature of the risks. However, it would be a simple and obvious precaution for the consent form to refer explicitly to the risks, he said.

Justice Baragwanath suggested it might be desirable that the law should in future impose on doctors an obligation to establish and maintain a written and signed record.

"Here the presence of such document would have brought clearly to Ms A's mind the nature of the risk, she would have been in no doubt as to her position and might have been spared the distress both of the pregnancy and of this litigation. Equally [Dr Jennings] might have been spared the experience of this claim," he said.

"There is in my view a public interest that the circumstances of this case should be known in some detail so that possible change in procedures may be considered," the judge stated.

In a statement, Nelson Marlborough District Health Board chief medical adviser Andre Nel said the board regularly reviewed its informed consent policy at its hospitals, and was satisfied with its current policy and procedures on informing patients about risks.

"We are pleased that the outcome of this case has confirmed that our policies are robust."

- NZPA