One of the primary reasons for medical malpractice claims in the healthcare industry is gynaecology negligence. Compensation claims for negligence are often related to contraception, surgery, and failure to perform sterilisation procedures. When a doctor fails to conduct a sterilisation operation, it can result in an unexpected pregnancy, which becomes the basis for the claim. Therefore, the failure to perform sterilisation is a common reason for medical malpractice claims.

A wrongful conception suit made its debut in South African law in the Behrmann v Klugman case. Mr B and his partner filed a lawsuit against a surgeon for damages after a failed vasectomy resulted in the birth of an undesired child. The plaintiffs filed a lawsuit against the defendant, a surgeon, seeking damages. The plaintiffs' claim was founded on carelessness and a breach of contract. According to the plaintiffs, the surgeon allegedly pledged to conduct the vasectomy with the requisite expertise and care, to ensure that Mr B would be left permanently sterile. Neither contractual nor criminal obligation was acknowledged by the defendant. However, based on the evidence, the court determined that the plaintiffs did not establish with a preponderance of the evidence that there was an express or implied agreement between them and the defendant to the effect that he provided such an undertaking or promise. This led to the claim being rejected.

In the cases of Edouard v Administrator Natal/Administrator Natal v Edouard, the case also dealt with “wrongful conception or pregnancy”. In order to deliver their third child via c-section, the respondent's wife was hospitalised at a local hospital. Because they couldn't afford to have any more children and the wife wanted to be sterilised, they also asked for a tubal ligation to be done at the same time. A year after postponing the tubal ligation procedure, the wife gave birth to her fourth child. The defendant filed a lawsuit for damages due to a breach of contract, as well as general damages for his wife's anguish, suffering, and loss of amnesties due to the failure to execute the sterilisation procedure and the costs of sustaining and raising the child born as a result. The court rejected the respondent's claim for discomfort, pain, and suffering, loss of amnesties, and loss of life because there was no supporting evidence for such a claim in the older sources and because South African courts have repeatedly stated in more recent years that only patrimonial loss may be recovered in contracts.

In the Friedman v Glickman case, a mother instituted a claim on behalf of her infant. The lawsuit for wrongful death filed on behalf of the infant did not have legal support for the claim that the plaintiff acquired the infection while still in utero. The infant's delictual claim (as of the time of her birth) against the gynaecologist for permitting her to be born with her impairments was subsequently considered by the court. Gynaecological conditions in children are not the gynaecologists’ fault, thus there is no legal basis for the infant's wrongful death lawsuit. Therefore, the unborn foetus may not have a claim, even if it is born healthy.

Medical malpractice is a very common occurrence, especially in the gynaecology field regarding surgeries and sterilisations. It is important to read the fine print of a medical contract before surgery especially one that involves a child being or not being born in the future. Doctors may be held liable for medical negligence if they are responsible for the failure of sterilisation.

WRITTEN BY LIZANNE SCHOLTZ

Lizanne Scholtz is a candidate attorney at Miller Bosman Le Roux.While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein.  Our material is for informational purposes and should not be construed as legal advice.