09 May 2012

medical negligence: Allenby v. H


The medical profession continues to enjoy statutory protection from negligence claims now that a Middlemore hospital surgeon has been held not personally liable for the consequences of a failed sterilisation operation.
The Supreme Court was asked to rule whether a woman who became pregnant after a failed sterilisation operation had suffered “personal injury” caused by medical misadventure.   By answering “yes” the Accident Compensation Corporation became liable to pick up the claimed damages.
The court was told that a woman named only as “H” suffered mental illness after giving birth in 2005 following a failed sterilisation.  As a general rule, accident compensation does not cover adverse consequences of any medical treatment, unless it was the direct result of medical misadventure: a failure to exercise the skill and care reasonably to be expected in the circumstances.  In this case, a clip was not correctly attached to one of her fallopian tubes.
Evidence was given that on average there are only six to seven compensation claims in any one year for personal injury caused by medical misadventure.
Over three decades, various amendments to accident compensation legislation have led to confused results for claims arising from pregnancy following a botched sterilisation.  Some judges have ruled it is for the Corporation to pay, others have ruled that the woman must sue the doctor personally for negligence.
The Supreme Court has had the final say: it is for the Corporation to pay.
Allenby v. H – Supreme Court (9.05.12)
12.013