Couple and gynae settle claim out of court

A DURBAN couple who sued their gynaecologist for more than R5 million for the maintenance and care of their baby daughter, who was conceived after he performed a sterilisation operation on the mother, have settled out of court.

The matter was set down for trial before Durban High Court Judge Anton van Zyl this week but was adjourned by consent, the order reflecting that liability had been resolved.

Attorney Altus van Rensburg, who acted for eManzimtoti-based gynaecologist and obstetrician Dr Peter Massel, said yesterday that details of the settlement were confidential.

The couple – who cannot be named to protect the identify of their child, who is now four years old – had two children and, deciding that was enough, approached Massel at the end of 2009 for advice on sterilisation.

According to documents before the court, Massel recommended that the woman have surgical bilateral tubular litigation of her fallopian tubes, explaining that it was permanent and non-reversible.

The woman – herself a nurse – signed a consent form and the procedure was done in February the following year.

Seven months later, she fell pregnant with her third child. She remained under Massel’s care during her pregnancy, and the little girl was born at 33 weeks by emergency caesarean section in early May 2011.

The couple alleged Massel had been negligent because he had not informed them that the operation could be unsuccessful, and should have advised the man to have a vasectomy. They also alleged the specialist had not done the operation properly “and had failed to perform the litigation on the right-hand-side tube” by not severing it between ligations. They also alleged he had misrepresented to them that the surgery had been successful.

Because of this, they were entitled to the reasonable costs of maintaining the child up until the age of 21 – estimated at R5 million – and general damages of R300 000.

The specialist denied any liability, saying he had advised the woman of the risks and possible failures of the procedure. He said the surgery had been complicated by “dense adhesions”, meaning only a small portion of the right-hand tube was visible, but he had acted correctly in ligating two portions of the tube and cauterising the central area.

In an expert report submitted on behalf the couple, gynaecologist Dr Eduard Langenegger said doctors were required to give information to their patients on a range of sterilisation procedures and their risks and consequences.

He said there was no record of the specialist complying with this, and this had resulted in a “missed opportunity” for them to choose another form of long-term contraception. He said, for example, a vasectomy “was 10 times safer”, with a 1:1 000 to 1:2 000 failure rate while sterilisation was 1:200.

But Durban gynaecologist Dr Reg Roos, who filed an expert report on behalf of Massel, said the risks of failure in the two procedures were “pretty much the same”.

“Despite the best care, there is always a risk, albeit a small one, of failure associated with tubal sterilisation. In my experience – 42 years – patients desirous of this procedure are usually aware of the risks and, in spite of that, it remains the preferred choice of the large majority of couples over vasectomies.”

He said Massel had used a well-recognised and acceptable technique when he performed the procedure.

“It is a medical fact that the body attempts to repair damage to any of its organs by reestablishing, in this case the fallopian tubes, a connection from the uterus to the ovaries.

“It is not known if this happened or whether there were other reasons for its (the procedures) failure,” Roos said.

The lawyer acting for the couple did not respond to requests for comment.

Despite the best care, there is always a risk