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