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  • Unreported Judgment

Hancock v State of Queensland

 

[2002] QSC 27

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Hancock v State of Queensland [2002] QSC 027

PARTIES:

SUSAN GAI HANCOCK

(first plaintiff)

ALAN PAUL HANCOCK

(second plaintiff)

v

STATE OF QUEENSLAND

(defendant)

FILE NO/S:

6229 of 1999

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29, 30, 31 January, 1 February 2002

JUDGE:

Atkinson J

ORDER:

Judgment is given for the defendant

CATCHWORDS:

NEGLIGENCE – MEDICAL NEGLIGENCE – Plaintiff medical patient pregnant after sterilisation procedure – whether procedure was performed with reasonable skill and care

Cook v Cook (1986) 162 CLR 376, applied

Jones v Manchester Corporation [1952] 2 QB 852, applied

Naxakis v Western General Hospital (1999) 197 CLR 269, applied

Rogers v Whitaker (1992) 175 CLR 479, applied

COUNSEL:

D O North SC for the plaintiff

S S Couper QC for the defendant

SOLICITORS:

Shine Roche McGowan Solicitors for the plaintiff

Gaden’s Lawyers for the defendant

  1. Susan Hancock is a woman who has faced much adversity in her life with considerable fortitude. In June 1997, she was in her mid thirties.  She had three children: a son aged 16, another son aged 12 and a daughter aged 3.  Her second son suffered from a number of disabilities and required constant attention; so much so that she had been reluctant to have another child until almost nine years after his birth.  After the birth of her third child, Mrs Hancock and her husband made a definite decision to have no more children.
  1. After consultation with her local general practitioner, Dr Friend, Mrs Hancock decided to undergo a sterilisation procedure at the Gold Coast Hospital.
  1. She attended at the Gold Coast Hospital for a consultation where the nature of a laparoscopic tubal ligation procedure was explained to her. She was told that there was a one to three, or perhaps two, in 1000 failure rate for this procedure. It is common ground that she was given appropriate warnings about the nature of the operation and the possible failure rate. Mrs Hancock was admitted to the Gold Coast Hospital on 3 June 1997 and the tubal ligation by laparoscopy was performed on 4 June 1997.  It was apparently a straightforward and uneventful operation with no complications.  When she asked a nurse about contraception, she was told she was now sterilised and could cease taking the oral contraceptive pill.  However, after two normal menstrual periods she ceased menstruating.  She then discovered that she was pregnant with twins.  In the event, only one twin developed and Mrs Hancock gave birth to her fourth child, Aaron, on 26 May 1998.  The birth of the child so soon after the tubal ligation demonstrates that the operation was not successful in sterilising Mrs Hancock.  However, these facts only give rise to some compensable injury if the plaintiffs can establish, on the balance of probabilities, that the loss occurred as a result of the negligence of the defendant.[1]
  1. Particulars of negligence were set out in the second further amended statement of claim filed on 19 July 1999. Most of these were formally or informally abandoned during the trial.
  1. Having had the advantage of seeing Mrs Hancock in the witness box, I agree with the assessment of Dr Byrne, a consultant psychiatrist who examined her for the purpose of these proceedings, when he said that she is an intelligent and fairly resilient individual who has been exposed to substantial adversity. She is an admirable woman who has coped well with the difficulties with which she has been faced and has held her family together, often against considerable odds. In order to succeed in their action in this court, however, the plaintiffs, Mr and Mrs Hancock, must show not only that the operation failed but that the failure of the operation was due to negligence on the part of the servants or agents of the State of Queensland. The negligence in question in this case would be shown if the defendant had failed to exercise all reasonable skill, care and expertise in performing the medical procedure of tubal ligation by which Filshie clips were applied to Mrs Hancock’s fallopian tubes.
  1. A medical practitioner is under a duty to exercise reasonable care and skill in the provision of professional advice and treatment.[2]  The standard of care required of a medical practitioner, as a person possessing special skill and competence, “is that of the ordinary skilled person exercising and professing to have that special skill.”[3]
  1. During the trial, it was agreed between the parties that the damages recoverable by the plaintiffs in the event of success were in the sum of $200,000, inclusive of interest. It was also agreed between the parties that of this sum, $90,000 was the sum attributable to the costs of raising the child, Aaron, born after the sterilisation operation. The only question in issue, therefore, is the question of liability. In order to determine that question, it is necessary to consider the circumstances surrounding and during the sterilisation procedure.
  1. Once Mrs Hancock had made the decision that she wished to be permanently sterilised she saw Dr Friend, her general practitioner. He referred her to the Gold Coast Hospital for a tubal ligation.  The referral was dated 27 November 1996.  Mrs Hancock then attended at the Gold Coast Hospital where she discussed tubal ligation with Dr Jayasinghe on 27 March 1997.  Mrs Hancock asked to have her tubes cut and tied and the doctor told her that this procedure was not usually performed and that the more common current practice was to use Filshie clips to occlude the tubes.  The doctor explained to her the nature of Filshie clips, the failure rate of such an operation, the risk of an ectopic pregnancy and that the operation would be performed laparoscopically.  Mrs Hancock returned to the hospital on 24 April 1997 when she signed a consent form for the operation to be performed laparoscopically.
  1. A Filshie clip is a titanium hinged clip about 13.9 millimetres in length lined with silicone rubber. It is clipped over the fallopian tubes of a woman in order to block the fallopian tubes to the passage of eggs. Filshie clips must be applied to both fallopian tubes and are applied using an applicator supplied by the manufacturer of the clips.
  1. Mrs Hancock was admitted to the hospital on 3 June 1997. She was seen by an anaesthetist and given pre-operative medication. She also saw Dr Justin Nasser who was to perform the operation. Dr Nasser is now a fellow in obstetrics and gynaecological ultrasound at the Royal Womens’ Hospital in Melbourne.  He graduated from the University of Queensland with a Bachelor of Medicine and Bachelor of Surgery in 1991.  After completing his residency training at the Royal Brisbane and Royal Womens’ Hospital, he commenced obstetric and gynaecological training in 1996.  In 1997, he obtained a Diploma of the Royal Australian College of Obstetricians and Gynaecologists and in 2000 was admitted to membership of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.  He was, therefore, a relatively junior doctor or registrar training to be an obstetrician and gynaecologist at the time he performed the operation on Mrs Hancock.  At that time, he had assisted in more than 30 operations to attach Filshie clips to the fallopian tubes and had himself performed 10 such operations.  He was supervised by a consultant during the procedure.  The standard of care expected is not reduced because he was relatively inexperienced.  An inexperienced medical practitioner must adhere to the standard of reasonable care expected from a practitioner experienced in that area of practice.[4]
  1. Dr Nasser explained the nature of the laparoscopic procedure and informed Mrs Hancock that if there were any complications such as bleeding he may have to perform a “bikini line cut” (otherwise known as a mini laparotomy).  She agreed to that but told him that unless complications arose during the operation she wanted a laparoscopy.
  1. Because of an unexpected delay in the operating theatre on that day, Mrs Hancock’s surgery was postponed to the following day when there was time available for the procedure.
  1. Dr Nasser performed the procedure on Mrs Hancock under the supervision of Dr Joanne Ludlow.  Dr Ludlow completed her primary medical degree in the United Kingdom in 1987.  In 1988, she commenced working in obstetrics and gynaecology.  In 1993, after qualifying as a member of the Royal College of Obstetricians and Gynaecologists in London, she moved to Brisbane.  In 1996, she became a Fellow of the Royal Australian College of Obstetricians and Gynaecologists and became a consultant obstetrician and gynaecologist at the Gold Coast Hospital.  She presently works as a consultant obstetrician and gynaecologist at the King Edward Memorial Hospital in Perth.  At the time she supervised the surgery on Mrs Hancock, she had performed approximately 300 Filshie clip sterilisations and has since performed a further 500.
  1. Neither Dr Ludlow nor Dr Nasser specifically recalls the procedure performed on Mrs Hancock although both recall Mrs Hancock. I accept that neither has specific recollection because the operation was itself uneventful and routine and there was nothing to fix it in their memories. Mrs Hancock was under general anaesthetic at the time so of course has no memory of what occurred during the operation. There are, however, hospital notes prepared immediately after the operation by Dr Nasser which are of some assistance in determining what occurred during the operation. It is also useful to consider the usual practice of both of the medical practitioners concerned before determining whether or not there was any deviation from that usual practice during the procedure under consideration.
  1. Dr Ludlow and Dr Nasser gave evidence that their usual practice is that after the patient is administered an anaesthetic, her abdomen is insufflated with carbon dioxide gas which elevates the anterior abdominal wall from the abdominal contents. Two small incisions are made, one just under the umbilicus where a 10 millimetre port and a very small camera are inserted; the other is a suprapubic incision where the port for the Filshie clip applicator is inserted.
  1. The camera displays an image of the abdominal contents on a television screen visible throughout the operating room. The patient’s pelvic organs are inspected for normality or otherwise. The fallopian tubes are identified and traced to the fimbrial or ampullary end to ensure that the correct structures have been identified. A Filshie clip is placed on the isthmic or narrow portion closest to the uterus of each fallopian tube using the Filshie clip applicator. The applicator is compressed until blanching is seen on either side of the clip ensuring the desired crushing effect of the tube has been achieved. After a clip has been placed on each tube, the tube is then lifted and examined on both sides to ensure that the clip is on the tube, it is on the isthmic portion of the tube and is completely occluding the tubal lumen. The incisions are then closed.
  1. I accept Dr Ludlow’s evidence that she was obsessive in following the correct procedure both when she was herself operating and when she was training and supervising and that, in accordance with her usual practice, she carefully checked the fallopian tubes both anteriorly and posteriorly to ensure that the clips had been correctly applied.
  1. That this routine was carried out during the surgery performed on Mrs Hancock on 4 June 1997 is confirmed by notes made by Dr Nasser on that day. It was a routine procedure from which Mrs Hancock made an uneventful recovery.
  1. It was not until Mrs Hancock became aware that she was pregnant that it was revealed that the surgery had not been successful in causing sterilisation. A hysterosalpingogram, which was performed on 23 November 1998, revealed that dye was able to pass along the right fallopian tube and that therefore it had not fully occluded. Four x-ray films were taken during the hysterosalpingogram which show the outline of two closed Filshie clips.
  1. The fact that the procedure has failed to sterilise a woman does not of itself disclose whether the surgeon exercised reasonable skill and care in the performance of the procedure. The known failure rate of this procedure, quoted during the trial as between 1 and 3 in 1000, includes cases where the surgeon has been negligent. In other cases, the failure cannot be explained by any failure to exercise reasonable skill and care.
  1. In order to prove that the failure to sterilise her was due to the negligence of the surgeon, Mrs Hancock relied on expert evidence from Dr Ronald Adam. Dr Adam is a very experienced obstetrician and gynaecologist who is in private practice in Brisbane with an appointment to the Royal Women’s Hospital. His first report tendered in evidence was dated 27 October 1999. In that report he speculated that the Filshie clip applicator may not have been properly serviced. He also expressed the view that the failure rate in these procedures using Filshie clips was higher than previously thought. He suggested that further information about her case could be obtained by doing another laparoscopy to ascertain the circumstances of the failed sterilisation procedure. Such a procedure is invasive and has not been undertaken in this case.
  1. By the time of writing a second report dated 13 September 2000, Dr Adam had examined the x-ray films referred to earlier in these reasons. He concluded that the clip had not been closed correctly as it showed a “convex curve on the upper limb”. He said that the “lens of the clip should be parallel to ensure successful occlusion of the tube”. He was of the view that there were three possible reasons for that appearance: the clip was placed on a broad or thick portion of the tube; the clip applicator was defective; the clip was not correctly closed by the operator.
  1. Two matters can be immediately disposed of. Firstly, as to the question of the failure rate raised in his first report, Dr Adam said in his second report that the failure rate was 1 to 3 in 1,000. Although in oral evidence he said he believed the failure rate to be much higher, he conceded that in June 1997 a reasonably competent surgeon could properly advise a patient that the failure rate of a Filshie clip sterilisation procedure was 1 to 3 in 1,000. This was the failure rate quoted to Mrs Hancock so there was no failure to adequately warn of the failure rate of this particular form of sterilisation procedure.
  1. Secondly, it was common ground between the parties by the end of the trial that the clip applicator which was used had been properly serviced and was not defective. This leaves open only the question of whether the clip was incorrectly applied or placed on the wrong structure or the wrong part of the structure by the surgeon. If either of those occurred, then it would suggest a failure to exercise reasonable skill and care on the part of the surgeon.
  1. In his oral evidence, Dr Adam said that if the clip is correctly closed, the limbs of the clip should be parallel and the top of the clip should be flat. The x-ray film shows that the top limb of the clip is convex. He says that in his opinion, if the top limb of the clip is convex, it will not occlude the fallopian tube properly. He then said the top of the clip should be “flattened and parallel”. He relied for his opinion on two manuals published by Femcare who distribute the Filshie clip. Although the copies of excerpts of those manuals tendered in evidence by the plaintiff do not disclose the edition from which they are excerpted or the publication date, it appears that the first[5] was published in the 1980s and the second[6] was published in the late 1990s.  The first edition clearly states that “the clip must end up with a flat top” and instructs the operator, both in words and by an illustration, to confirm, when finally inspecting the clip, that it has a flat top.
  1. In the later edition of the manual, no such instruction or warning is given although the introduction contains what is described as an illustration of a permanently closed clip and gives the appearance that the top of the clip is flattened. The words accompanying this illustration say that latching has occurred and the clip cannot be opened or removed. On page 5 of this later edition of the manual, the following instructions appear under the heading “Applying the Filshie Clip”:

“1.Inspect the tube thoroughly.

  1. Ensure that the Clip can accommodate the whole diameter of the tube.
  1. Place the Clip on the isthmic portion of the tube, 1-2 cm from the corner.
  1. If there is any doubt about the securing of the Clip, a second Clip may be placed immediately adjacent to the first on the uterine side.
  1. In the unlikely event of the tube being too large for the Clip, use an alternative method of tubal occlusion.
  1. Having established the best location for the Clip, the applicator should be re-opened and advanced a few millimetres to move the tube gently to the back of the Clip, close to the hinge.
  1. Lock the Clip into position by applying firm, but gentle pressure on the finger bar in a smooth action until the stop is reached.
  1. Do not use an abrupt action or the tube may be transected.  Should this happen, a second Clip may be applied on the proximal (uterine) side of the transection.  This should be done very slowly.
  1. It is quite noticeable, but quite normal, for the muscle of the tube to ‘give’ during Clip application.
  1. When the Clip is locked into position, release the finger bar and the Clip will automatically free itself from the applicator.”
  1. Under the heading “Inspection of Clip” the later manual says:

“Using the empty mouth of the applicator as a probe, inspect the secured Clip, to confirm that the entire tube has been captured, the upper jaw has been compressed and is securely locked under the nose of the lower jaw (Diagram A) and the Clip is in the correct position on the Fallopian tube (not on either the round or ovarian ligament or the fold of the mesosalpinx).”

  1. None of this is contrary to the procedure adopted by Dr Nasser under the careful supervision of Dr Ludlow.
  1. Dr Adam also expressed a tentative opinion that the x-ray films might show that the clip on the right side might have been attached to a broader part of the tube than would be preferred but he was unable to be certain from the x-ray. The defence relied on expert evidence from Dr Keeping, who is also a very experienced obstetrician and gynaecologist. In his opinion, the x-ray was too imprecise to show the position of the clip on the tube. The evidence given by Dr Ludlow showed that she carefully supervised and checked the procedure undertaken by Dr Nasser. It is most unlikely that she would not have observed if Dr Nasser had placed the clip on an incorrect structure or on the wrong part of the tube or in some other way had incorrectly placed it. The plaintiff has not been able to show that this is a probable explanation for the failure of the procedure to sterilise Mrs Hancock.
  1. In Dr Adam’s opinion the likely cause of the failure to completely occlude Mrs Hancock’s right fallopian tube was that the Filshie clip on that tube had been inadequately closed although he agreed in cross-examination that the x-rays show that the upper limb had been secured under the lip on the lower limb.
  1. Dr Adam was not himself, however, very experienced in the use of Filshie clips. He had only performed 20 or 30 procedures using Filshie clips. He said in evidence that he had never been confident in them since they were first available, that they had gone through a number of different models and so he tended to stay with his previous method of sterilisation, the use of a Fallope ring placed over the tube. He admitted that this procedure gave rise to an increased risk of bleeding or tearing of the tube. It does not appear that it is a more appropriate procedure than the use of Filshie clips. Dr Keeping, who has performed about one thousand sterilisation procedures using Filshie clips, was of the view that laparoscopic sterilisation by clips was the preferred method of permanent contraception.[7]
  1. Dr Adam admitted that his source of information for forming the opinion that the top limb of the clip must be flat before the clip is properly closed was limited to the information contained in the manuals. A number of problems arise from this reliance: firstly, the manuals and the clips have changed from the clips produced 20 years ago and the manual produced in the early 1980s, where the instruction appears that the operator should ensure that the upper limb of the clip is flat.  Secondly, Dr Adam was not relying on expertise drawn from his own experience with Filshie clips.  Rather, Dr Adam was critical of Filshie clips as a method of sterilisation and it appears this has coloured his views of the causes of the failure of this sterilisation procedure.  I cannot accept his opinion that a Filshie clip must have a “completely flat top limb” before a surgeon could be satisfied that it was completely closed.
  1. My reasons for so concluding are based on the evidence given by Dr Ludlow, Dr Keeping and Dr Clegg.  That evidence was supported by the physical appearance of a number of clips which were tendered during the trial.  Dr Ludlow carefully described how a surgeon would be able to conclude that a Filshie clip is properly closed.  She was not of the view that the flexible upper limb had to be completely flat nor had she received any training or instruction to suggest that was so.  Dr Keeping said that the surgeon should try to flatten the clip as it was fastened but its final appearance would depend on a number of variables such as the size, width and fatness of the tube.
  1. Dr Keeping demonstrated the proper method of closing a Filshie clip in the witness box. The upper limb of that clip after closure was slightly flattened once the upper limb was clipped under the lip of the lower limb but it was by no means completely flat and retained some convexity. The extrusion of silicone rubber on either side between the upper and lower limbs of the clip showed that complete closure had been achieved.
  1. Dr Clegg is a senior lecturer in biomaterials in the School of Mechanical, Manufacturing and Medical Engineering at the Queensland University of Technology. Dr Clegg used an applicator similar to that used in Mrs Hancock’s procedure to close a number of clips. He carefully simulated a situation where the applicator was increasingly out of calibration. He also closed clips using the applicator, properly calibrated, as it was when Mrs Hancock’s procedure was undertaken. He measured the distance between various parts of the upper and lower limbs of these clips and reproduced the upper profile of the closed clips in the form of a graph or diagram. The more the applicator was out of calibration, the more convex the upper limb of the closed clip became. He also measured the clip on the right fallopian tube as shown in the x-rays. He was obliged to scale back the measurements and average the results from the three x-rays to compensate for distortion and to achieve maximum accuracy. The result was accurate to within 10 percent.  Even allowing for this, the profile of the clip in the x-rays was more consistent with the clips correctly closed with a properly calibrated applicator than with the clips which were inadequately closed.   The clips used on Mrs Hancock’s fallopian tubes were correctly closed; the upper limb was flattened although it retained some convexity which is ordinarily present in a properly closed clip.
  1. I have concluded that the Filshie clip on the right fallopian tube, which did not successfully occlude the tube, was properly closed and placed on the appropriate part of the fallopian tube. While the failure to properly close a clip or the failure to correctly place the clip are common causes of the failure of a sterilisation procedure none of them, individually or in combination, was the cause of the failure in this case. The failure to sterilise Mrs Hancock was an example of the known but inexplicable failure rate of this particular procedure, where the failure was not due to error or negligence on the part of the surgeon. It follows that judgment should be given for the defendant.

Footnotes

[1] There is an allegation in the statement of claim of breach of contract but as there was no consideration passing between the plaintiffs and the defendant, there was no contract.

[2] Rogers v Whitaker (1992) 175 CLR 479 at 483.

[3] Rogers v Whitaker (supra) at 487; Naxakis v Western General Hospital (1999) 197 CLR 269 at 275, 297.

[4] Cook v Cook (1986) 162 CLR 376 at 383-384, 391; Jones v Manchester Corporation [1952] 2 QB 852 at 868.

[5] Exhibit 16.

[6] Exhibit 17.

[7] See also Keeping, J D, Chang, A and Morrison, J, “Sterilization:  A Comparative Review”, Aust NZJ Obstet Gynaec (1979) 19:193; Kovacs, GT and Krins, AJ, “Filshie clip sterilisations – what is the risk of failure?”  Journal of Family Planning and Reproductive Health Care 2002, 28(1)34.

Close

Editorial Notes

  • Published Case Name:

    Hancock v State of Queensland

  • Shortened Case Name:

    Hancock v State of Queensland

  • MNC:

    [2002] QSC 27

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    22 Feb 2002

Litigation History

No Litigation History

Appeal Status

No Status