Doctor must pay to raise boy

The High Court stunned doctors yesterday with a landmark finding that a surgeon who bungled a woman's sterilisation is liable for the cost of bringing up her child to the age of 18.

Medical groups and doctors warned that the ruling could lead to practitioners refusing to perform sterilisations and could have implications for other, reversible contraception procedures.

The ruling had "raised the bar" of doctors' legal liabilities, at a time when the medical indemnity insurance industry was already in crisis.

The court split four to three over the question of whether a couple who had an unintended child as a consequence of medical negligence could "require the doctor to bear the cost of raising and maintaining the child".

The parents, Kerry and Craig Melchior, already had two daughters when they decided they did not want any more children in 1991. Dr Stephen Cattanach, an obstetrician and gynaecologist, performed a tubal ligation on Mrs Melchior a year later.

Mrs Melchior told the doctor she had already had her right fallopian tube removed during an an appendectomy when she was 15, so he only operated on the left tube. In fact, she still had her right fallopian tube and in 1997 gave birth to a healthy son, Jordan.

She then successfully sued the doctor and the Queensland Health Department for medical negligence and was awarded more than $200,000. An appeal was lodged against one component of that sum - the $105,000 cost of raising Jordan until 18.

In a strong dissenting judgement, Justice Dyson Heydon said: "A child is not an object for the gratification of its parents, like a pet or an antique car or a new dress . . . the child has a 'value' which must be fostered whether it pleases its parents or repels them.

"It is contrary to human dignity to reduce the existence of a particular human being to the status of an animal or an inanimate chattel . . . It is wrong to attempt to place a value on human life or a value on the expense of human life because human life is invaluable - incapable of effective or useful valuation."

But the majority judges - Ian Callinan, Michael Kirby, William Gummow and Michael McHugh - rejected the notion that the birth of a child was "always a blessing, and that the benefits to be derived therefrom always outweigh the burdens". They said Mrs Melchior should keep the costs of raising Jordan because they were directly connected to the doctor's negligence.

Dr Andrew Pesce, chairman of the Australian Medical Association's medical professional indemnity task force, said if the ruling pushed insurers to lift premiums for doctors who practise tubal ligations, some could refuse to perform them. It could also have an impact on reversible contraception procedures.

He said the decision was a part of a pattern where doctors' liability was gradually increased over time, so that "nobody actually knows what their obligations are".

"It raises the bar . . . it gives the legal profession confidence to keep doing these things in general - it just means the situation is made slightly more difficult yet again for doctors."

Dr Cattanach said the decision would not help doctors' indemnity costs, and would flow onto medical costs for the community. "This may encourage increased litigation for unexpected failures of sterilisation operations and of course undiagnosed pregnancies in general practice."

The Melchiors' solicitor, Ben Gent, said they were "very pleased with the result".

"It's a real testament to Mrs Melchior's determination to go the distance," he said.

The dissenting judges questioned why, if a doctor was found liable for the costs of bringing up a child to age 18, it should logically stop there, when children could remain dependent on their parents for much longer.

Chief Justice Gleeson asked about the costs of a wedding and Justice Heydon cited a Princeton education and expensive overseas holidays, asking: "Can their cost be denied in relation to an unplanned child?"


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http://www.personal-injury-attorney.us.com/wrongful_birth.html

WRONGFUL BIRTH : VASECTOMY FAILURE : STERILISATION FAILURE
Wrongful Birth Claims fall into two categories. The first is sterilisation failure or vasectomy failure. The second arises where correct screening has not taken place and parents have not been warned that a child may be born with a specific disability and if they had been warned would have terminated the pregnancy.

Sterilisation Failure occurs when a female sterilisation operation has been unsuccessful and has resulted in an unwanted pregnancy. The term 'wrongful birth' is used to describe a claim which arises out of the birth of a child who would not have been born in the absence of medical malpractice. It is generally understood that if conception occurs shortly after the sterilisation operation than it is likely that the operation was carried out negligently. Occasionally even when an operation is performed without negligence it may still fail if one of the fallopian tubes repairs itself which, when it does occur normally takes about a year. Most doctors warn about the risk of this occurrence in advance of the operation, and it may be negligent not to advise of this risk in advance of the operation however, this does not excuse a negligent operative technique.

Vasectomy Failure occurs when a male sterilisation operation has been unsuccessful and has resulted in an unexpected conception. Common grounds for negligence include the failure to advise about the need to use alternative forms of contraception for several months post-vasectomy, occasional failure of an operation which has been carried out properly and failure of operative technique.

A settlement may include compensation for physical and emotional pain, and the incapacity and distress of an unwanted pregnancy and labour, together with the costs of re-sterilisation or further vasectomy procedure. Compensation can also be claimed following a termination. Some incidental losses and expenses relating to the child’s upbringing can be claimed and considerably more is awarded to a child who has any disability. Healthcare providers including hospitals, consultants, doctors, nurses and technicians are usually fully insured against medical malpractice which results in wrongful birth claims and it is the insurer who will pay any compensation that is awarded.

We'll ensure that you get a fair deal, by referring your claim to a specialist personal injury attorney who is a member of The Association Of American Trial Lawyers who has a track record of many years' successful verdicts. We can help you assert your rights and get the settlement you deserve. Limitation periods differ from State to State and you should take legal advice as soon as possible. Our lawyers will deal with your claim using a contingency fee arrangement and if you don't succeed in receiving a settlement then your lawyer won't get paid. We will give you free advice on how best to pursue your claim and what actions you should take to preserve your legal rights.

If you would like to know if it is possible to claim compensation, just complete the contact form and an attorney who is a member of The American Association of Trial Lawyers will telephone you as soon as possible with free advice.

USA PERSONAL INJURY ATTORNEY NATIONWIDE

This decision would be perfectly sensible and just if the woman hadn't specifically told the doctor that he only needed to operate on one fallopian tube.

I like this better:

"A child is not an object for the gratification of its parents, like a pet or an antique car or a new dress . . . the child has a 'value' which must be fostered whether it pleases its parents or repels them.

What is the message these venal parents are sending to their openly unwanted child, who is sure to find out about this?

Most teenagers who hate their parents do so unfairly. But that won't be the case this time.

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