NSW woman gets $400,000 payout after Filshie clips did not prevent her falling pregnant

A woman who underwent surgery to avoid falling pregnant has been awarded more than $400,000 for medical negligence after she unexpectedly conceived another child.

The 39-year-old, referred to by the pseudonym Jodie Lee, sued obstetrician and gynaecologist Nita Dhupar over the elective tubal ligation surgery she performed in 2014.

The procedure was supposed to permanently block Ms Lee's fallopian tubes using Filshie clips — 14-millimetre-long titanium medical devices which lock into place using a hinge.

Just under a year later, Ms Lee began experiencing nausea, vomiting and sensitivity to food smells, and found out she was pregnant.

Ms Lee gave birth by an emergency caesarean section and her regular doctor noticed one of the clips was out of place.

In awarding $408,700 plus costs to Ms Lee, District Court Judge Leonard Levy noted there was no doubt the child at the centre of the case was "loved and cherished".

But the pregnancy and birth had "significant adverse effects on the plaintiff's life, on the amenity of her life, on her emotional wellbeing, and on her capacity to work", the judge said.

"The plaintiff not only developed mixed feelings about the birth of the fourth child, but she also developed a major depressive disorder on learning of and then experiencing the progress of her pregnancy, and all that this entailed for her," Judge Levy said.

"That psychological disorder continues to affect all aspects of the plaintiff's life."

In a detailed 300-page judgment, Judge Levy criticised Dr Dhupar for giving unreliable evidence to the court about disputed matters.

In her defence, Dr Dhupar argued the pregnancy was the result of an inherent risk of failure associated with the surgery and the patient was warned of the risk.

But the court heard the doctor had backdated pre-operative consultation notes from May 2014 to falsely reflect that she had given Ms Lee a pamphlet about the procedure, including its risks.

The court heard two years later — upon receiving notice of pending legal action — Dr Dhupar backdated a sticker peeled off the pamphlet to include the 2014 consultation date.

Judge Levy said Dr Dhupar's denial of a cover-up was "unconvincing".

Dr Dhupar's handwritten and typed surgery notes were also found to be factually inaccurate, including that she failed to list an assistant surgeon.

In addition, photographs taken of the applied clips were not clear or comprehensive enough.

Dr Dhupar attempted to "shift responsibility" for that shortcoming onto an "unnamed hospital staff member" when the task of taking the photographs was hers, the judgment said.

Judge Levy found Dr Dhupar breached a duty of care and said a finding of negligence followed.

The majority of the damages awarded was for non-financial loss, however, the court also awarded amounts for past financial loss, future loss of earning capacity, future treatment expenses and past out-of-pocket expenses.