Court dismisses damages suit in sterilisation case - 1/2/2006

Court dismisses damages suit in sterilisation case
An action for damages filed by a married couple who claimed that a sterilisation procedure had not been carried out on the wife was yesterday dismissed by Mr Justice Joseph Azzopardi in the First Hall of the Civil Court.

Frankie and Sonja Zerafa had filed their writ against doctors Olga Avramov and Donald Felice and the Chief Government Medical Officer.

The couple claimed that the wife had been admitted to St Luke's Hospital to deliver a baby by caesarean section.

She had signed a consent form for her fallopian tubes to be severed to render her sterile.

The surgery, according to plaintiffs, was carried out by Ms Avramov, who had worked under the supervision of the consultant, Mr Felice.

The wife, however, became pregnant after this surgical intervention and plaintiffs claimed that as a result of this pregnancy she would once again have to undergo the trauma of another caesarean birth as well as the medical risks of two caesarians in a short period of time.

The couple further claimed that they would face serious financial problems as a result of the pregnancy, and they requested the court to condemn the defendants to make good the damages they had sustained.

In its judgment, the court ruled that the only defendant who had been properly sued was Ms Avramov, for it was she who had performed the surgery and had severed the fallopian tubes.

Mr Felice had not participated directly in the surgery, and no allegations had been made against the CGMO.

Quoting extensively from foreign and local case law, the court declared that a charge of professional negligence against a medical professional was serious, for it affected his or her professional status and reputation.

Consequently, the burden of proof was correspondingly greater.

With the best will in the world, things sometimes went amiss in surgery and treatment and a doctor was not to be held negligent simply because something went wrong.

A doctor was liable when he or she went so much below the standard of a reasonably competent practitioner in the field that his or her conduct might be deserving of censure or was inexcusable.

Mr Justice Azzopardi declared that from the evidence produced, it resulted that in very rare cases, this type of surgery performed could turn out to be unsuccessful because although the fallopian tubes were severed surgically, they healed themselves and the woman would again become pregnant.

There was no doubt in this case that the surgery consisting in the severance of the fallopian tubes had been carried out and that plaintiffs had failed to prove their allegations of negligence on the part of the surgeon.

One had to sympathise with the plaintiffs for the fact that the wife was the one in a million who fell pregnant after sterilisation.

However, this was not the responsibility of the defendants.

The only failure in this case, the court found, was that it did not appear that anyone had informed plaintiffs that there was a risk that the operation could turn out to be unsuccessful.

However, no blame could be attributed to the defendants on this issue.

The Zerafas writ was dismissed but the court did not apportion costs due to the novelty of the subject matter.

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