Pregnant After Sterilzation. Can You Sue Your Doctor After A Healthy Baby Is Born
Suing for an unplanned pregnancy (termed 'wrongful pregnancy' or 'wrongful conception' in law) raises many ethical and moral issues, including whether or not such a claim would be considered to be contra bonos mores, i.e. against public policy.
Wrongful pregnancy is generally used when a child is conceived after the parents received medical treatment or advice that made them believe that they would not become parents again. In SA, our courts recognize the concept termed 'privity of contract'.
This means that unless a contract is contra bonos mores or illegal or one where that has not been freely and voluntarily agreed to, and thus unenforceable, our courts will uphold the terms of any contract.
A legal obligation can arise even where there isn't any contract in place, for example when a person suffers harm as a result of conduct of another person whether or not that harm caused intentionally or negligently.
If a man opts to undergo a vasectomy in order to avoid impregnating a woman and it later turns out that the man has fathered a child, the man would have a claim against the medical practitioner who performed the failed sterilization op.
The claimant would need to prove to the court that the medical practitioner failed to exercise the reasonable care and applying reasonable skill to ensure success.
In his defence if, prior to the surgical procedure, the medical practitioner explained to the patient the fact that the sterilization was not 100% guaranteed and that in certain cases, 1/80 000 cases a man may even father a child despite the apparent absence of spermatozoa in his ejaculate, then clearly there is no negligence on the path of the doctor as the patient was able to make an informed consent after assessing the risks.
In March 2019, judgement was handed down in the KwaZulu Natal High Court by the Honourable Justice Koen in a case where a woman sued her gynaecologist after she become pregnant with her second child.
She claimed that whilst she was pregnant with her first child, she informed her gynae that she wished to have a tubal ligation performed on her after the birth and delivery of her first child.
The woman said she believed that the gynaecologist had performed the tubal ligation especially as he claimed for the procedure from her medical aid service provider. She only realised he did not perform the tubal ligation when she discovered that she was pregnant with her second child.
The gynaecologist denied that he was required to perform a tubal ligation. His medical notes were used extensively in the trial, which made no mention of a tubal ligation. The doctor said that due to an administrative error in his rooms, he erroneously claimed for a tubal ligation from the patient's medical aid scheme and when he realised the error, he sought to reverse that claim.
In terms of the Sterilization Act, written consent is required when a person opts to become sterilized. There was no written consent in that case and the woman and her husband were unsuccessful in their action against the gynaecologist. In another case Behrmann v Klugman, the parents of a healthy child sued a surgeon for breach of contract after he performed a vasectomy on the father.
The parents claimed that the surgeon failed to advise the child's father to have a sperm count before resuming intercourse without contraception and that the surgeon uttered certain statements to them making them believe that 10 weeks after the vasectomy the man would be rendered sterile. The court in favour of the surgeon.
The court also found that the parents were unable to establish that the contract between them and the doctor contained an express or implied term or warranty regarding the permanent success of the operation.
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