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Costly surgery! Government ordered to pay $10 million after medics cut woman's tubes without permission

Published:Sunday | November 30, 2014 | 12:00 AM

Barbara Gayle, Justice Coordinator

The Government will have to pay more than $10 million to a Jamaican woman who now lives in the United States (US), Juliet Robinson, after she was left infertile when doctors at the Spanish Town Hospital cut her fallopian tubes without her knowledge.

Robinson had gone to the hospital in February 1995, when she was 28 years old, to give birth to her fourth child. A caesarean section (C-section) was performed to deliver the baby.

After the operation, the doctors went to perform a second operation and cut her tubes (tubal ligation). As a result of that operation, Robinson was left unable to naturally become pregnant.

Robinson told the court that while she agreed to the C-section, she refused repeatedly any offer of having her tubes tied.

She said she did not know that any such operation was done on her until 1999, while living in US, when she did medical tests and was informed by a gynaecologist that both tubes were cut.

In 2001, she filed a negligence suit in the Supreme Court against the hospital, the Ministry of Health, the attorney general and three doctors who participated in the surgery.

Robinson, who was represented by attorneys-at-law Dundeen Ferguson and Ronald Koathes, said she tried to get pregnant in 1999 and when that did not happen she and her husband started fertility treatment. She said that was when they consulted a specialist and was told about the tubal ligation.

Robinson described the frustration and anxiety she and her husband suffered as a result of the situation. She said she also started treatment for in vitro fertilisation in 2001 and stopped, then continued the treatment between 2008 and 2009.

She subsequently gave birth to her fifth child in September 2009, but the baby was conceived by in vitro fertilisation.

Robinson disclosed that her efforts to become pregnant from 1999 to 2009 caused a strain on her relationship with her husband.

Dr Danielle Clair, a certified obstetrician and gynaecologist who practises in the US, was called as Robinson's expert witness. Clair indicated that in the US, it would be assault and battery for a doctor to perform an operation such as cutting the patient's tube without her consent.

She opined that, in Robinson's case, the conduct of the doctors amounted to failure to exercise due care and skill in the operations.

EMERGENCY PROCEDURE

However, the defendants contended that the surgical procedure to cut the claimant's tube was an emergency procedure to save her life. They said after the baby was delivered, Robinson developed excessive bleeding around the vessels of the uterus and medical procedure was done to stop the bleeding and save her life.

Under cross-examination by attorney-at-law Harrington McDermott, who represented the defendants, Clair accepted that the uterus could be injured during a C-section resulting in bleeding.

But she argued that the injury would not be to the extent that would necessitate the cutting of both tubes.

She explained that the major blood vessel supplying the uterus was different to those supplying the fallopian tube.

In handing down the $10-million judgment, Mr Justice Courtney Daye found that the nurse's note supported the claim that Robinson did not consent to any tubal ligation.

The judge also issued a reminder that the 1994 Cairo Declaration on Population and Development, to which Jamaica is a participant, states that there is a duty of the State to inform every person about their reproductive care and health and about their fertility.

Daye said the declaration incorporated a person's decision on their reproductive health as a human right. The judge found that there was a breach of duty of care to the claimant.

Daye said he was unable to accept or rely on the evidence of the doctor who performed the operations. The judge said he did not accept the explanation that inadequate medical records were kept of Robinson's operation due to being short-staffed and the heavy workload of doctors.

According to Daye, the medical notes need not be so elaborate but ought to report the vital medical facts.

The judge said he accepted Claire's evidence that the effect of the tubal ligation was to render Robinson infertile.

"(The doctors') treatment of the claimant and, vicariously, the Spanish Town Hospital fell short of the standard of practice of a responsible body of medical opinion and skill in the speciality and of a gynaecologist, surgeon and health-care provision. The treatment was not reasonable and rational," held Daye.

The judge said the defendants failed to produce evidence that there was bleeding around the vessel to the uterus, and Robinson was not informed about the tubal ligation.

In handing down judgment Daye said Robinson was entitled to general damages covering her physical and emotional pain and suffering commencing from 1998, as well as expenses incurred for fertility treatment and in vitro fertilisation.

He said she was also entitled for loss of amenity where the enjoyment with her husband was diminished due to the tubal ligation. The judge said she was entitled to damages for the scarring of the tubes and infertility, adding that the medical report was that her fertility was zero per cent.

The defendants were ordered to pay $8 million in general damages with interest at three per cent from November 2002 to this year. Special damages of US$$14,862 was awarded with interest from February 1995 to this year.