Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

Parker v Accident Compensation Corporation (DC, 18/11/03)

Judgment Text

Judge J. Cadenhead
The Issues 
The appellant underwent a sterilisation procedure on 7 August 1998. The laparoscopic tubal occlusion was carried out using Filshie clips. The clips were applied to both her fallopian tubes, and the wounds were closed with subcuticular stitches. The appellant alleges that since the laparoscopic tubal occlusion was carried out, she has continually suffered pelvic pain, and this procedure is the causal reason for such pain. 
In addition, the appellant alleges that her medical advisers were negligent in advising the surgical procedure, and that the surgical procedure was carried out below the standard of care required, in that it was found that there was not a clip on her left tube, and the right tube was noted to be normal. 
The Narrative of Facts 
The appellant was born on 4 May 1969. On 7 August 1998, she underwent a straightforward laparoscopic tubal occlusion which was carried out using Filshie clips. The clips were applied to both her fallopian tubes and the wounds were closed with subcuticular stitches. 
The appellant had been complaining of pelvic pain for several years. She saw a Dr Ozumba, an obstetrician and gynaecologist, in November 1993 with a complaint of longstanding abdominal pain. That was investigated and laparoscopy suggested at a later date. She was also noted at the sterilisation procedure to have adhesions on the right side of the pelvis that may have been due to the ectopic pregnancy that she had had. 
After the operation, she continued to complain of pain, so on 30 March 2001 a diagnostic laparoscopy was carried out. At the operation it was found there was no clip on her left tube, and the right tube was noted to be normal. No obvious cause of her ongoing abdominal pain was noted or described. 
The Medical Reports 
Dr W. Arthur Brooks', obstetrician and gynaecologist, report to the Medical Misadventure Unit on 18 November 2001, sets out the medical history of the appellant and his diagnosis. 
He reported that while Filshie clips are applied to the fallopian tubes, they crush the segment of tube where the clip is applied. This procedure may cause necrosis of that segment of tube. The clip has then done its job and may lie in close proximity to the blocked segment of tube, but it may also move from the site. The clips are quite inert and are often covered with peritoneum causing no harm or irritation. 
He commented that at the second laparoscopy the dislodged clip was not commented upon so presumably was not seen. There were some filmy adhesions most likely from her previous operation for ectopic pregnancy. 
Dr Brooks said that pelvic pain is a common gynaecological symptom and can be associated with a variety of pathology, but often no pathology is found. He knew of no medical evidence that suggested that a loose Filshie clip in the abdominal cavity is associated with pain. 
In the circumstances of this claim, Dr Brooks did not believe that the claimant had suffered a physical injury as a result of the medical treatment. There was no evidence of medical misadventure, as no medical error had been shown to have occurred or indeed medical mishap. It was not an uncommon finding at subsequent operations to find that the clips used for sterilisation had migrated from the tubal occlusion site. 
In a medical report dated 25 November 1993, Dr Edwin Ozumba said that he had seen the appellant that day for colposcopy assessment of her abnormal smear, and also her initial assessment of her longstanding abdominal pain, which apparently was exacerbated in the last two weeks. Regarding her abdominal pain, Dr Ozumba thought this followed no known pattern, but its distribution suggests it could have arisen from her pelvis, even though there was no localising sign. He said he would treat her smear abnormality in the first instance when she next attended, but if the investigations failed to reveal the cause of her abdominal pain, he recommended diagnostic laparoscopy at a later date. 
Dr Raj, obstetrician and gynaecological consultant, advised that he carried out the procedure. He said that this was a straightforward laparoscopic tubal occlusion, which was carried out, and Filshie clips were applied to both her fallopian tubes and the wounds were closed. The procedure was uncomplicated. He confirmed the medical assessment of Dr Brooks as to the effect of the Filshie clips. 
He said that when Filshie clips are applied they crush the segment of tube where it is applied which causes necrosis of that segment. Because of this the clip falls off from that segment and is often usually found loose in the abdominal cavity. It is inert and does not cause any inflammatory reaction. At the second laparoscopy the dislodged clip was not visible in the pelvis. There were some filmy adhesions in the pelvis most likely from the previous laparotomy for ectopic pregnancy. 
He said pelvic pain was a very common gynaecological symptom and could be associated with pelvic pathology such as endometriosis, infection or adhesions but often no pathology is found. Dr Raj did not feel that the symptoms complained of related to the laparoscopic tubal occlusion or to the fact that the clip had come off the tube. 
The Appellant's Submissions 
The appellant appeared in person. She contended that since the operation she had suffered pain which was not present previous to the operation. She submitted that she should never have been advised to have undertaken the surgical procedure, and that the surgical procedure had been ineptly carried out because of the fact that further laparoscopic investigation revealed that there was no clip on the left tube. 
The appellant was not able to produce any countervailing medical opinion that showed her present pain arose as a result of the surgical procedure, nor that the surgical procedure had been carried out below the standard of care required, or that the procedure and after effects of the operation could be considered rare. 
Legal Principles 
This appeal is brought pursuant to the provisions of sections 34 to 37 of the Accident Insurance Act 1998. The starting point, therefore, will be a consideration of the statutory elements necessary to enable cover. “Medical error” is the failure of a doctor to observe a standard of care and skill reasonably to be expected in the circumstances. Section 36(2) provides that a doctor's negligent failure to obtain informed consent or to treat correctly an insured's medical condition is a “medical error”. Subsection (3) provides that “medical error” does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results. 
What has to be proved is the failure of a doctor to observe a standard of care and skill reasonably expected in the circumstances. The statute provides, essentially that a doctor is not an insurer concerning desired results, and that what not must be taken into account is hindsight reasoning that a subsequent event might have produced a different decision or a better result. 
Section 70 of the Act requires that the respondent must obtain, and have regard to independent advice from a suitably qualified person when actioning a claim. The insurer has a statutory injunct to have regard to that independent advice. Clearly, while not conclusive, the opinion of an independent doctor commissioned must be given some regard. 
The statutory regime mirrors to a large extent the situation at common law. It is relevant to consider some of the principles relative to medical negligence enunciated by Courts of high authority. 
I have had regard to the following cases Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635; Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643; B v Medical Council (High Court, Auckland, 11/96, Elias J, 8 July 1996); and Bolitho v City and Hackney Health Authority [1998] AC 232 and from them the following principles may be stated: 
Where you get a situation which involves the use of some special medical skill or competence, the test as to whether there has been negligence or not is the standard of the ordinary skilled person exercising and professing to have that special skill. A person need not possess the highest expert skill; it is well established law that it is sufficient if that person exercises the ordinary skill of any ordinary competent person exercising that particular profession. 
A person is not guilty of negligence if he/she has acted in accordance with a practice accepted as proper by a responsible body of medical people skilled in that particular art. Putting it another way around, a person is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion who would take a contrary view. 
Where the conduct of a doctor is concerned, the circumstances are not so precise and clear-cut as in the normal case of negligence. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one person clearly is not negligent because his/her conclusion differs from that of other professional people, nor because he/she has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. 
It is ultimately for the court, not for medical opinion, to decide what was the standard of care required of a doctor in the circumstances of each particular case. The court is not bound to hold that a doctor escapes liability for negligent treatment or diagnosis just because he/she leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. However, such medical evidence is treated with great respect and the circumstances in which the court would disregard this type of the evidence would be rare. However, the evidence tended should always be subject to critical and logical analysis. 
Error of judgment is not necessarily negligence as was illustrated in the House of Lords case of Whitehouse v Jordan [1981] 1 WLR 246
The case of Maynard v West Midlands Regional Health Authority, is a decision of the House of Lords and succinctly sets out the principles relevant to a finding of negligence concerning a failure to diagnose. Generally, that case is an authority for the proposition that where the defendant can call a reputable expert witness to say on the material available that the witness would have made the same diagnosis a finding of negligence will be difficult to sustain. In the light of Bolitho (supra) the totality of the evidence has to be looked at with critical analysis. However, the medical evidence must be given considerable weight. 
The appellant suffers pain in the region of her operation and alleges that there has been an increase in the pain since the surgical procedure. The appellant, also, points to the radiology report dated 13 May 2002, which revealed two metal clips lying close together were found in the left iliac fossa region. In that report the comment made was that if these were tubal ligation clips, then they were not quite where the examiner would have expected them to be. 
However, both doctors, who have provided reports referred to the clips crushing the segment of the fallopian tube causing necrosis and consequently the clips may lie in close proximity to the tube or migrate from the site. In other words, the clips may fall off. Again, the independent medical adviser, Dr Brooks, cannot see any evidence of medical error or medical mishap. It is not an uncommon phenomena to observe in subsequent operations that the clips used for sterilisation had migrated from the tubal occlusion site. Dr Brooks was of the opinion that the appellant had suffered no physical injury resulting from the medical treatment. Further, there was no medical error in respect to the procedures and the operation performed by the operating surgeon. Dr Brooks, again, could see no criteria for medical misadventure, in that what had occurred was not rare. The problem that the appellant faces is that she has no medical evidence. The onus is upon her to prove medical error or mishap on a probability basis. I agree with the conclusions arrived at by the review officer. 
I have considerable sympathy for the appellant. However, in the absence of medical evidence she cannot prove on a balance of probabilities that her present condition is a result of the medical error or a medical mishap arising from the surgical procedure alleged. Accordingly, the appeal is dismissed. There will be no order as to costs. 

From Accident Compensation Cases

Table of Contents