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Tubal ligation procedure case - Medical Misadventure etc

#1 User is offline   hukildaspida 

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Posted 17 February 2012 - 10:57 PM

http://www.nzherald....jectid=10785989

Doctors won't sterilise if they can be sued, court told

By Matthew Backhouse
6:13 PM Thursday Feb 16, 2012


Doctors will stop performing sterilisation operations if women who later become pregnant are able to sue, the Supreme Court has been told.

The court today heard submissions in a test case which centres on whether pregnancy following a failed sterilisation can be deemed a "personal injury caused by medical misadventure".

If the court finds it is, ACC will have to provide compensation. If not, women will have to sue the doctor who performed the operation to get compensation.

The case comes after Terri Hannam sued Middlemore Hospital doctor Keith Allenby after she became pregnant a year after undergoing a tubal ligation procedure in 2004.

She applied for ACC cover but was refused - like more than 70 other women between 1992 and 2003.

An earlier Court of Appeal ruling found pregnancy was not a personal injury, closing the door to ACC compensation and allowing civil cases against doctors to proceed.

Dr Allenby has appealed that ruling in the Supreme Court.

His lawyer, Harry Waalkens QC, told the court today that cases in which women became pregnant after sterilisation were of high risk to doctors and health professionals.

"Doctors aren't going to do it if you've got that risk ... it's the only area that you are going to be sued."

He argued that a pregnancy arising from a failed sterilisation operation should be considered a personal injury.

The Accident Compensation Act 2001 did not specifically exclude pregnancy from personal injury and it was not the intention of Parliament to do so.

To exclude pregnancy following a failed sterilisation would go "completely against the tenet of the social contract" that ACC provided.

Manukau District Health Board (DHB) lawyer Paul White said if cases were pursued civilly, it would be not only doctors but also DHBs who would be hit by the costs.

Because DHBs were government-funded, as was ACC, the cost of compensation would in essence be transferred from one Crown entity to another.

Dealing with cases through ACC would offer certainty rather than exposing parties to litigation, he said.

Solicitor-General David Collins, who is acting for ACC as an interested party in the case, said pregnancy was not a personal injury and Parliament did not intend it to be in cases of medical misadventure.

"Pregnancy is a unique, natural, biological process that has to occur," Mr Collins said.

"It's the combination of these factors that distinguishes pregnancy from anything else which can occur to the human body."

Pregnancy had been a personal injury before 1992, when Parliament changed the ACC law to cut costs, and subsequent amendments had taken on the features of the 1992 law, he said.

Now, someone who picked up 8kg of books and strained their back would be covered by ACC but a woman who strained her back as a result of carrying an extra 8kg of weight during pregnancy was not.

"That is because personal injury does not cover pregnancy or the consequences of pregnancy," Mr Collins said.

Ms Hannam's
lawyer, John Miller, did not make an oral submission other than to say he would accept the court's decision.

Speaking outside court, Mr Miller told APNZ his client would be happy for either outcome.

"The implications are that if the doctor wins, that means that her case is covered by ACC, which means she can't continue suing the doctor and will have to rely on any entitlements she gets from ACC.

"If, on the other hand, ACC win and they say that pregnancy is not covered by the ACC scheme, if it's not covered you can still sue for damages in New Zealand, and that's what we'll be doing."

Mr Miller said there was "not really" a preferred outcome for his client.

"It doesn't bother us. But I think philosophically I would prefer it to come under ACC, because I think that's better for claimants, better for the country," he said.

"We replaced suing for personal injury in New Zealand because of the length it takes, the time it takes, the costs and the procedural difficulties you have, whereas ACC is a nice clean scheme."

The five Supreme Court justices hearing the case reserved their decision
.

- APNZ
By Matthew Backhouse | Email Matthew
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#2 User is offline   Gloria Mitchell 

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Posted 18 February 2012 - 12:23 AM

So just whose butts are covered by acc? If acc don't cover this one and patients can sue for the failed (tubal ligation etc)surgery....we won't do it? Someone must have some idea of the % of failures for this procedure. I personally know two. I also know of one case where tubal diathermy.....ruptured the bowel...and nearly killed the young lady.

Huh.....I rest my case.

Gloria.

Did you really think it was all about patients/injured people?
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#3 User is offline   hukildaspida 

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Posted 20 February 2012 - 08:45 PM

http://www.nzlawyerm...69/Default.aspx

Pregnancy can be personal injury, says High Court

By Darise Ogden

A DISTRICT Court decision that pregnancy is a “physical injury”, and therefore a “personal injury” under the Injury Prevention, Rehabilitation and Compensation Act 2001 (the 2001 Act) has been upheld by the High Court.

In Accident Compensation Corporation v D and Anor (16 May 2007, High Court, Wellington CIV 2006-485-765), Justice Mallon found that “pregnancy” was capable of being described as a “physical injury”, and that it would be covered by the 2001 Act where it was caused by medical error or mishap.

Prior to the introduction of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act), the Courts awarded payments for pre-birth expenses and loss of amenities and/or pain and suffering caused by unwanted pregnancies arising out of failed sterilisation operations (see XY v Accident Compensation Corporation (1984) 2 NZFLR 376). However, claims for expenses incurred in the maintenance of the child were declined, with Justice Jefferies saying in XY, at 380, that “after the birth of a normal healthy child the injury is entirely healed”.

From 1992 until 2003, the Accident Compensation Corporation (ACC) declined 72 claims brought as a result of failed tubal ligation procedures. This, said Justice Mallon, was because the view taken seemed to be that the 1992 Act required there to be a “physical injury” and that “pregnancy” did not come within the natural meaning of “injury” (at [49]). As reported in the judgment at [5], the ACC’s policy was that pregnancy could not be considered an injury as “[w]hile it may be an undesired event following tubal ligation, it is still a natural physiological function, rather than a physical injury”.

Discarding the rhetoric of whether a child born as a result of a failed sterilisation case was a “blessing” or a “mixed blessing”, and with no binding authorities on the issue as to whether a pregnancy was a “physical injury”, Her Honour considered the issue to be one of statutory interpretation, saying “[t]he meaning of the words “physical injuries” must be considered in their context and in light of their purpose” (at [12]).

Her Honour found that the Australian and UK case law on failed sterilisation cases illustrated that “pregnancy” was able to be described as an “injury” either because it could be said to be “harm”, as found by Justice Kirby in the High Court of Australia case Cattanach v Melchior (2003) 199 ALR 131, or an invasion of bodily integrity, as found by Lord Justice Hale in the UK Court of Appeal case Parkinson v St James Hospital [2001] 3 All ER 97. In Cattanach, the High Court of Australia upheld the decision of the Supreme Court of Queensland, which found the surgeon who negligently performed the sterilisation procedure liable for the reasonable costs of raising and maintaining the child, who was born healthy, until he reached the age of 18. In Parkinson, the UK Court of Appeal held that the surgeon who negligently performed a sterilisation operation that led to the birth of a disabled child was liable only for the special needs and care relating to the child’s disability and not the ordinary costs associated with his upbringing.

In order to determine whether or not a pregnancy constituted “physical injury” in the context of the 2001 Act, and in light of its purpose, Justice Mallon considered the physical impacts of pregnancy. After surveying the various stages and features of pregnancy as set out in an extract from the Australian Medical Association Journal (features that included nausea and vomiting, increased heart-rate, stretch marks, tiredness, swollen ankles, leg cramps, backache, and breathlessness), Her Honour concluded that “[i]f these kinds of changes and resulting effects were suffered by some other impact upon the body, … there would be little difficulty in calling them ‘harm’, detrimental physical impacts, impairment or interference” (at [75]).

While acknowledging that these changes are “the natural process that enables human beings to regenerate the species”, she found that “when viewed from the perspective of a woman’s body in its pregnant state as compared with its pre-pregnant state”, the physical impacts were capable of being described as an injury (at [76]).

Any concern that this decision could open the floodgates, with women all over New Zealand who “accidentally” fell pregnant suddenly being covered by the 2001 Act, was quickly nipped in the bud with Her Honour stating, in agreement with submissions made by counsel for the second respondent, that pregnancy arising from consensual sexual intercourse was not an accident within the terms of the 2001 Act.

Leave has been granted to appeal the decision to the Court of Appeal on the grounds that the High Court was wrong in law in concluding that pregnancy is a “physical injury” and can therefore constitute a “personal injury” under the 2001 Act, said ACC Legal Services solicitor John Roberts.

22 June 2007
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#4 User is offline   hukildaspida 

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Posted 09 May 2012 - 07:46 PM

How much time and money has this cost for all parties concerned?

How much have various Lawyers been paid to argue this out over how many years?

How much has it cost in
http://www/acc.co.nz levies?

At a guess this case could be one of around 70 women who could have pursued it.

We trust ACC will use commonsense and inform those other 70 who may have applied and been turned down the same legal right for cover and entitlements.



http://www.nzherald....jectid=10804625

'Sterilised' woman who became pregnant unable to sue surgeon
12:51 PM Wednesday May 9, 2012


A woman who became pregnant, despite having her tubes tied, has been allowed to take her case to the Supreme Court.

The Supreme Court issued its unanimous decision today to allow the woman to seek cover from ACC.

However, the court also ruled that she was not able to sue the surgeon who performed the operation or the Manukau District Health Board which employed the surgeon.

The court heard how the woman had an operation in 2004 to have her tubes tied.

One year later she gave birth to a child.

The woman took her case to the High Court, Court of Appeal and now the Supreme Court.

The Supreme Court ruled today that the operation constituted a personal injury and should therefore be covered by ACC.

As a consequence, that allowed her to seek cover from ACC.


- APNZ

http://www.courtsofn...ts-supreme-2012
Supreme Court of New Zealand
9 May 2012
MEDIA RELEASE – FOR IMMEDIATE PUBLICATION
ALLENBY v H AND OTHERS

SC 70/2011 [2012] NZSC 33
PRESS SUMMARY
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.
In 2004 a woman had an operation intended to render her sterile. The operation failed to achieve that purpose. In early 2005 she gave birth to a child. She brought proceedings claiming damages against the surgeon and the District Health Board which employed him. The question before the Supreme Court was whether, on the assumption that the surgeon was negligent, she had cover under the Accident Compensation scheme for personal injury caused by medical misadventure. If she did have cover, that would bar her common law claim. The surgeon and the District Health Board argued that she had cover. The Accident Compensation Corporation argued that she did not. The woman herself took no position, indicating that, depending upon the outcome of the appeal, she would either maintain her damages claim or seek her entitlements under the Accident Compensation scheme.
It was submitted by the Corporation that, since amendments to the scheme in 1992, cover has not been available in the assumed circumstances of this case. The appeal concerned the provisions of the Accident Compensation Act 2001 (then known as the Injury Prevention, Rehabilitation, and
PO Box 61, Wellington, New Zealand
Telephone 64 4 918 8222 Facsimile 64 4 914 3560
2
Compensation Act 2001) as they stood in 2004, before a series of amendments.
The Supreme Court has unanimously held that an impregnation resulting from a medical misadventure, in the form of a negligently performed sterilisation operation, was a personal injury for which cover was available under the Act. The 1992 amendments had not changed the law in this respect. The Court has said that cover also remained available in respect of a pregnancy caused by rape because that is a personal injury caused by an “accident” to the rape victim. The term “personal injury” is used in the statute in an expansive way and has a statutory meaning.


ORDER FORBIDDING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR PARTICULARS LIKELY TO LEAD TO IDENTIFICATION OF FIRST RESPONDENT.
IN THE SUPREME COURT OF NEW ZEALAND
SC 70/2011
[2012] NZSC 33
BETWEEN KEITH ALLENBY Appellant
AND H First Respondent
AND MIDDLEMORE HOSPITAL OF COUNTIES MANUKAU DISTRICT HEALTH BOARD Second Respondent
AND ACCIDENT COMPENSATION CORPORATION Interested Party
Hearing: 16 February 2012
Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ
Counsel: A H Waalkens QC and C L Garvey for Appellant J M Miller and M Dao for First Respondent P N White and B P Mills for Second Respondent D B Collins QC Solicitor-General, B A Corkill QC and S L Scott for Accident Compensation Corporation F Geiringer for Intervener, Doctors for Sexual Abuse Care
Judgment: 9 May 2012
JUDGMENT OF THE COURT
A The appeal is allowed. The question framed in the High Court is answered “yes”.
B Costs are reserved.
__________________________

http://www.nzlii.org/databases.html
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#5 User is offline   hukildaspida 

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Posted 09 May 2012 - 08:05 PM

The answer to that Gloria may well lie in this decision ALLENBY v H AND OTHERS SC 70/2011 [2012] NZSC 33 - 9 May 2012. (see post #4)

It looks like
http://www.acc.co.nz longstanding BA Corkill QC "conflicts of interest" all over the place pops up again in Litigation with his associate A H Waalkens QC.

Just how much do these two QC's get funded by us taxpayers per year?

Must be a very tidy sum.

Maybe it's time our friends in the media did some OIA's and got full disclosure of their financial gains and how much they have cost us in Court costs over the years....

Those whom are in Legal Private Practices must ask questions and get answers.


Bruce Corkill QC
http://accforum.org/...uce-corkill-qc/


View PostGloria Mitchell, on 18 February 2012 - 12:23 AM, said:

So just whose butts are covered by acc? If acc don't cover this one and patients can sue for the failed (tubal ligation etc)surgery....we won't do it? Someone must have some idea of the % of failures for this procedure. I personally know two. I also know of one case where tubal diathermy.....ruptured the bowel...and nearly killed the young lady.

Huh.....I rest my case.

Gloria.

Did you really think it was all about patients/injured people?

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#6 User is offline   hukildaspida 

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Posted 10 May 2012 - 10:52 PM

http://www.nzherald....jectid=10804786

Court rules ACC must cover failed sterilisation
By Martin Johnston
5:30 AM Thursday May 10, 2012


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.
By Martin Johnston | Email Martin

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Posted 13 May 2012 - 11:39 AM

Botched-op mum's years of trauma
By Carolyne Meng-Yee
5:30 AM Sunday May 13, 2012
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Ms H still wants an apology from the doctor. Photo / Thinkstock
A mother who became pregnant after an operation to tie her tubes failed has broken her silence to encourage other women to come forward.

The woman, identified in court documents only as Ms H, went as far as the Supreme Court to get a ruling that the pregnancy was a personal injury and thus covered by the Accident Compensation Corporation. She says she wants the law changed so other women don't suffer as she did.

"The main reason I fought so long is I don't want this to happen to anyone again."

In July 2004, Ms H, 42, was shocked to discover she was 20 weeks pregnant.

"I thought, 'Oh my God'. I couldn't abort because it was too late. I was 20 weeks," she said tearfully.

She was a working mum living in rural Auckland with her two daughters, now 21 and 8, from a previous relationship. "The relationship with the baby's father was not good. We had no money. That's why I had my tubes tied."

Article continues below


The baby boy she had in March 2005 was adopted out.

Ms H said the physical scars from the caesarean section were a constant reminder but the emotional scars ran even deeper.

"The last seven years have been hell. This experience has traumatised me. I still can't drive. My hair started falling out. I have regular panic attacks. [The doctor] just screwed up my whole life."

Tubal ligation involves placing permanent clips on the fallopian tubes to prevent eggs from reaching the uterus for fertilisation. But in Ms H's operation, one of the clips was reportedly placed on a ligament.

Ms H said she was not told about the risk. "I know the risk is one in 300, that's fine - that's the failure [rate]. But [gynaecologist Dr Keith Allenby] did not tell me this could happen."

Dr Allenby told the NZ Herald he did not accept he placed a clip on a ligament rather than on the fallopian tube. He did not respond to calls from the Herald on Sunday.

This week, ACC was ordered by the Supreme Court to provide cover for women who had babies after failed sterilisations. The court ruled any pregnancy from an alleged negligent tubal ligation was a personal injury caused by medical misadventure.

Ms H's lawyer John Miller said a number of retrospective cases would be looked into.

ACC was unable to comment because of the complex issues involved.

http://www.nzherald....jectid=10805465
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#8 User is offline   hukildaspida 

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Posted 05 June 2012 - 10:15 PM

http://www.nzlawyerm...93/Default.aspx

Pregnancy can be a “personal injury”, says Supreme Court
By Craig Sisterson

A WOMAN who becomes pregnant following a failed sterilisation has suffered personal injury caused by medical misadventure, for which she will have cover under the accident compensation scheme, the Supreme Court has held in Allenby v H & Ors [2012] NZSC 33 (9 May 2012), overturning an earlier decision of the Court of Appeal in a similar case.

“I do not consider there to be any convincing reason based on the statute’s text or purpose for treating pregnancy as being outside the scope of ‘personal injury’ as defined in the Act,” said Chief Justice Dame Sian Elias at [19]. “I consider that impregnation following a failed sterilisation is a physical impact to the person of the woman being treated and is within the meaning of personal injury caused by medical misadventure.”

In January 2004, H had an operation which was intended to render her sterile. The operation failed to achieve that purpose; a clip had not been correctly attached to one of her fallopian tubes. She became pregnant, and in early 2005, gave birth to a child by caesarean section. She brought proceedings in the High Court claiming damages from the surgeon and the District Health Board which employed him. The issue was whether she could sue for damages, or was covered for medical misadventure under the provisions of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (now the Accident Compensation Act 2001) (2001 Act), barring her common law claim.

Because in a similar case, Accident Compensation Corporation v D [2008] NZCA 576, a majority of the Court of Appeal had determined that cover did not exist in such circumstances (on the basis that pregnancy was not a “personal injury” under the legislation because it was not a “physical injury” – those phrases suggesting a need for harm or damage), the High Court made an order removing the question of whether pregnancy caused by medical misadventure could be covered by the accident compensation scheme directly to the Court of Appeal. The Court of Appeal delivered a brief judgment following its earlier decision (Allenby v H [2011] NZCA 251) and leave to appeal was granted to the Supreme Court to fully consider the issue.

H indicated to the Supreme Court that, depending on its determination, she would either maintain her damages claim or seek her entitlements under the accident compensation scheme. The Accident Compensation Corporation appeared as an interested party to make the argument that cover was not available and to oppose arguments in favour of cover made by the appellant surgeon, supported by the District Health Board.

“If the events in this case had occurred prior to the commencement of the Accident Rehabilitation and Compensation Insurance Act 1992, it is common ground that the first respondent would have had cover for her pregnancy,” said Justices Blanchard, McGrath, and William Young at [39]. “We have to determine whether things changed as a result of the reforms and restructuring of the accident compensation scheme by the 1992 Act, whose provisions were, for present purposes, carried forward in the Accident Insurance Act 1998 and again in the 2001 Act without substantive change.”

A person has cover for personal injury suffered in New Zealand caused by medical misadventure (section 20(1) and 20(2)(B) of the 2001 Act) and for personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure (section 201(1) and 20(2)(f)). Personal injury relevantly means physical injuries, including, for example, a strain or a sprain (section 26(1)(B)).

The Supreme Court noted at [40] that the form and history of the legislation before the 1992 Act, as it related to pregnancy consequent on medical misadventure or sexual violation, cast some light on the legislative purpose of that Act. “The same question of whether the pregnancy is a personal injury as defined by the legislation from time to time arises in relation to both situations.” The Supreme Court noted at [46]-[47] that while the 1992 Act defined “accident” as a specific event or series of events involving the application of force external to the human body, and made no specific mention of pregnancy in the Act, there had also been “no statement of any intended omission or limitation of the existing coverage for pregnancy resulting from medical misadventure or from rape” in a series of reports and discussions leading up to the 1992 reforms.

It was most unlikely that Parliament, having expressly extended the scheme in 1974 to give cover for pregnancy resulting from rape, would have sought to remove that cover in 1992 without “very directly” addressing the subject in the new legislative provisions, held the Supreme Court at [68]. “It is all the more unlikely that Parliament would have been invited to do so in an indirect way when no mention was made in any of the parliamentary materials and no such change had been recommended by the Law Commission.”

The question, noted the Supreme Court at [71], was whether the language used in the 2001 legislation leads the Court to find that the previous coverage for pregnancy resulting from rape or a failed sterilisation had been removed. “We are not persuaded by the arguments advanced by the Corporation that the 1992 Act, and consequently the 2001 Act, did in fact remove the existing cover in either of these respects.” Said the Court at [74], “It would be quite extraordinary if, on the argument made for the Corporation, there were to be coverage for a rape victim for any physical harm suffered during the assault and for any mental injury whether or not she had suffered such physical harm, but any impregnation resulting from the rape was not covered as a physical injury.”

Denial of H’s coverage for her pregnancy consequent upon medical misadventure, said the Supreme Court at [78], “would not be consistent with the overall spirit of the statute”, which appeared to the Court to still, after 1992, be intended “to provide universal coverage for accidents and for the consequences of medical misadventure”.

The Supreme Court allowed the appeal, and held that H had cover under the 2001 Act for the physical effects of her pregnancy.

NZLawyer, issue 184, 18 May 2012
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#9 User is offline   hukildaspida 

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Posted 25 September 2014 - 02:37 PM

Mums sue ACC for cost of raising unplanned children
DEIDRE MUSSEN
Last updated 05:00 25/09/2014

http://www.stuff.co....lanned-children

Three children were enough for a mother who went into hospital to have her tubes tied in 1997. But she is now a mother of five, and says the botched sterilisation has had "huge financial implications".

"They're good kids, but if I had stopped at number three, I would be kicking up my heels now. Instead, I've still got child commitments."

The woman is one of at least 11 pursuing ACC for the cost of raising children as a result of failed sterilisations.

In its most recent estimate, in 2011, Inland Revenue estimated the cost of raising a child until the age of 18 at $250,000. Wellington ACC lawyer John Miller, a father of four who is acting for the women, said: "Personally, I think that's a bit light."

The unnamed mother said the family had to buy a van to transport all the children, and she had lost earnings from staying at home to raise the unplanned child, who is now nearly 16.

She later had a fifth child before having a second - successful - operation to tie her fallopian tubes. Her two sons born after the failed sterilisation were dearly loved, and called themselves "miracle babies". "They got through when no-one else would."

The actions against ACC follow a Supreme Court ruling in 2012 that the corporation could cover cases of unplanned pregnancy. But so far it has accepted claims only for costs associated with the pregnancies, and has refused to pay the much higher bills for raising the children.

It has paid out $40,470 on 18 accepted claims for pregnancies from failed sterilisations since the court judgment in May 2012, including six that were previously declined. It refused 27 claims, mainly because it deemed the pregnancies were not caused by treatment.

But Miller, who took the original Supreme Court case, said women faced significant financial impacts for such unplanned births, including lost wages while raising them and extra expenses for care, such as schooling, food and clothing.

One woman had twins after a failed sterilisation, another had two failed sterilisations, and many had experienced major difficulties, including marriage break-ups.

"It could be quite catastrophic for some, having an extra mouth to feed. The reality of life is that a child is wonderful to have, but it does change your future circumstances, your financial circumstances and career."

The women pursuing compensation were at varying stages of legal actions, and the amounts being sought were yet to be determined for each case, he said.


ACC spokeswoman Stephanie Melville
said its entitlements did not extend to the costs of raising children as a result of failed sterilisations. "The courts have never suggested that a child itself can constitute a personal injury."

THE STORY SO FAR 2005:

A woman gave birth in an Auckland hospital after a failed tubal ligation the previous year.

ACC refused her claim that her pregnancy was a coverable result of medical error, stating pregnancy was not a personal injury.

2007: ACC's refusal was overturned on review because the High Court had ruled in another case that such a pregnancy was a personal injury.

2008: ACC appealed against the High Court decision, and the Court of Appeal overturned it, ruling the pregnancy was not a personal injury.

ACC also appealed in the Auckland woman's case, and the Court of Appeal reinstated its decision to decline her cover. Since ACC offered no cover, it meant she could sue her doctor for damages.

2012: Her case went to the Supreme Court, which ruled she could be covered by ACC for the "physical effects of her pregnancy", because she had suffered a personal injury caused by medical misadventure.

2014: 11 clients of Wellington lawyer John Miller are individually claiming ACC cover for failed sterilisations.

- The Dominion Post
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Posted 21 August 2015 - 05:29 PM

ACC to appeal botched sterilisation ruling

HAMISH MCNEILLY

Last updated 15:44, August 20 2015


http://www.stuff.co....lisation-ruling

ACC will appeal a decision awarding compensation to a woman who gave birth after a botched sterilisation operation.

The woman, who has permanent name suppression, gave birth to a son in June 2006, after having a sterilisation procedure eight years earlier.

The surgeon clamped her bladder instead of a fallopian tube, resulting in the unwanted birth and her having to give up work to care for the child.

Peter Sara, a specialist in accident compensation law, won a landmark decision against ACC that effectively awarded her weekly compensation.

A spokeswoman for ACC confirmed it had filed an application for leave for an appeal.

"This will allow us the appropriate time to consider the court's decision and decide how we will proceed."

Sara questioned the decision to appeal.

"Is it really right that doctors can mess it up, leave somebody with a child that they really shouldn't have had, and for the state to walk away saying 'them the breaks?' "

His client had originally sued the doctor and the hospital for economic loss – the cost of bringing up a child and her loss of income – "but she can't recover that now because of a Supreme Court decision".

That decision was based on another case where a judge ruled pregnancy from a failed sterilisation was an accident and should be covered by ACC.


Sara said that forced his client to pursue claims through ACC "but now that has been taken away from her as well".

He confirmed he had been contacted by other people in a similar position to his client.

"What is going on with these medical operations if they fail all the time . . . they should be exceptionally rare."

ACC was not in a position to confirm the number of claims for botched sterilisation operations, which is now the subject of an Official Information Act request.

- Stuff
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Posted 02 August 2016 - 03:19 PM

ACC claim over unwanted pregnancy fails

Wednesday, 27 July 2016
The New Zealand Herald
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Belinda Feek

Belinda Feek is a NZ Herald reporter

http://m.nzherald.co...jectid=11682418



By Belinda Feek

A woman's 10-year battle for compensation from ACC over an unwanted pregnancy has been dismissed by the High Court.

The woman, who has name permanent suppression, fell pregnant in 2006 after a failed sterilisation operation eight years earlier.

It was discovered that the filshie clips were attached to the woman's bladder wall instead of her fallopian tube.

She took ACC to the district court after her application for costs - claiming her pregnancy was a personal injury - was turned down by the organisation.

The woman won and was granted cover for her physical effects of her pregnancy, but not the mental effects.

ACC determined that she was entitled to backdated, weekly compensation for the period May 15, 2006 and July 27, 2006 as she was unable to work during that time.

However, the woman appealed on the grounds that she thought she'd be owed more, and submitted that the damages continued past child birth and included the fact that she now had a "live and dependent child".

The woman says she was unable to return to her former employment because of her parenting responsibilities.

Her lawyer, Peter Sara, argued that the consequence of the covered pregnancy was the birth of a live child.

He said that was a "reasonably foreseeable consequence of a negligently performed sterilisation procedure which, if not covered, could be the subject of a civil suit claiming damages".

However, he acknowledged that, in terms of the law, for his client to have a continuing entitlement to compensation, ACC had to be able to find that the bringing up of a child after birth was part of the personal injury suffered by the mother.

But the High Court rejected her argument and found the district court judge was wrong in finding that she was unable to return to her pre-injury work in terms of the Act in regards to her entitlement to weekly compensation.

The court found that a person can only qualify for compensation under physical or mental inability.

It also found that in terms of the Act, "pregnancy will cease to be an injury when there are no longer any physical or mental disabilities associated with the pregnancy rendering the mother unable to engage in her pre-injury employment".
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