Court rules ACC must cover failed sterilisation

ACC has been forced to provide cover for women who have a baby as a result of a failed sterilisation operation. Photo / Thinkstock

The Accident Compensation Corporation has been forced by the Supreme Court to provide cover for women who have a baby as a result of a failed sterilisation operation.

Lawyers say the test-case ruling has wide implications and will result in claims from women seeking cover for lost income and expenses such as raising a child, which run to hundreds of thousands of dollars.

ACC's interpretation of its legislation, supported by the Court of Appeal, has for more than a decade denied compensation to women whose operations failed to make them sterile.

From 1992 to 2003, 72 women had claims declined by ACC for failed tubal ligation operations, such as Ms H, the mother at the centre of yesterday's Supreme Court verdict.

In 2004, gynaecologist Dr Keith Allenby, of the Counties Manukau District Health Board, performed keyhole surgery on Ms H, manipulating the instruments by remote control and viewing his work through a tiny camera mounted on them.

The operation was to place permanent clips on her fallopian tubes, to block them to prevent eggs from being fertilised by sperm.

But one of the clips was mistakenly placed on a ligament, which in some cases can appear like a fallopian tube.

The doctor declined to comment yesterday, but his lawyer, Harry Waalkens, QC, said Dr Allenby was pleased and relieved by the Supreme Court decision, which meant Ms H's civil damages claim against him and the DHB would instead go to ACC.

The Supreme Court said pregnancy resulting from an allegedly negligent tubal ligation was, for the purposes of ACC's legislation, a personal injury caused by medical misadventure, for which cover was available.

Mr Waalkens said Dr Allenby denied negligence and medical error because what had happened was a well-recognised risk of the procedure and he had explained this to Ms H. "He maintains he gave proper advice this was a risk that might happen."

Ms H gave birth by caesarean section in 2005. She filed a civil case in the High Court because another claimant with a similar case, Ms D, failed in the Court of Appeal to win ACC cover.

Ms H, whose civil case was fast-tracked to the Supreme Court to decide on ACC cover, was claiming compensation for pain, suffering and loss of amenities, loss of earning capacity and future earnings, and legal costs.

Mr Waalkens said the sum was not quantified, but he was aware of other claims for up to $250,000.

The cases involved unwanted pregnancies, unwanted births and failures of screening for conditions such as spina bifida and Down syndrome.

He said the Supreme Court ruling would mean several cases could now go to ACC instead of damages claims in the High Court.

"There's quite a few waiting for this. I've got three. People are not well served by suing for damages through the courts in these sorts of cases because they are always defended, because the doctor says it wasn't negligence," Mr Waalkens said. "Then they have the problem of proving what damages they are entitled to."

Ms H's lawyer, John Miller, who also has other cases waiting, said she was neutral on whether her case should go to civil action or ACC.

ACC said it would not comment for several days because of the complexity of the issues in the 38-page judgment.

COMPO CHANGE

* ACC has been forced by the Supreme Court to provide cover for women who have a baby as a result of a failed sterilisation operation.
* Previously compensation was denied to women whose operations had failed to make them sterile.
* From 1992 to 2003, 72 women had claims declined by ACC for failed tubal ligation operations.