Failed Sterilisation and Vasectomy Clinical Negligence Claims Lawyers

Compensation can be claimed where there has been inappropriate advice given concerning which procedure to have to effect a sterilisation or vasectomy, or where there has been substandard surgical care that amounts to actual Medical Negligence.

Failed Sterilisation and Vasectomy poses the danger of cute consequences, however, it is far from joyful anticipation of a new arrival for a couple who find themselves in this position. There can be enormous practical, as well as financial, hardship caused to families in these circumstances.

It is important to speak to specialist medical solicitors for advice. You should not face this situation alone.

Sterilisation

Sterilisations are commonly successful, but these procedures tend to be left to more junior doctors in the NHS. Often a junior surgeon to mistake surrounding tissues for the fallopian tube. This can lead to the sterilisation clip being applied to a ligament, instead of the fallopian tube. This inevitably leads to an unplanned pregnancy, usually within 12 months of the surgery.

However, if a pregnancy occurs after a 12-18 month period, then this will be down to the body’s own healing abilities, rather than a surgical error. This is because, sometimes, the fallopian tube can regenerate itself by forming a tube around the clip and finding it’s way back to the ovary. This natural healing process is called ‘tubal lumen regeneration’.

Vasectomy

There can be non-negligent reasons for the failure of vasectomy, the obvious one being unprotected intercourse soon after the procedure before the remaining live sperm downstream from the vasectomy site are completely “flushed” out of the system. Typically, it takes 20-25 ejaculates (or 3 months of time) for the live sperm to be eliminated from the tubes after a vasectomy. Provided a patient has been fully informed about this, and advised about using contraception until the ejaculate is “cleared” of sperm after the vasectomy, then this is not negligent.

Much less common are vasectomies that fail due to the blocked sperm tubes reconnecting on one or both sides after the procedure (‘recanalisation’).

The frequency of this depends mainly on how the blockage was made by the surgeon during the vasectomy procedure in the first place. Early on after vasectomy, the scar tissue blockage is softer and may be more easily penetrated by live sperm than the same scar tissue after it has hardened several months later.

During this period  (usually within 4 months of the procedure), the ends of the tubes do not actually reconnect, but the soft scar tissue between them becomes riddled with tiny passages where live sperm have driven through in attempts to bypass the obstruction. Initially, you may get appropriate, decreasing sperm count results on testing, but the level may then stop falling and remains constant, or even rises.

Techniques such as the use of non-absorbable surgical clips or sutures, placing each end of the cut vas deferens away from each other (fascial interposition) or thorough burning (cautery) of the inner hole of the tubes are associated with the lowest recanalisation rates. Combining two or more of these techniques may lower recanalisation rates even more than the use of one approach alone.

Vasectomies can also fail due to failure to properly identify the sperm tubes during the procedure and a failure to block both sides. The vas deferens tubes exist in the scrotum along with other structures, including blood vessels and nerves. If something other than the vas deferens is selected for blockage, sperm will remain in the ejaculate. This results in a persistent, and often normal, sperm count in the ejaculate after the vasectomy. It is more likely to happen in cases of prior scrotal surgery that may obscure the anatomy, including surgery for undescended testis and prior vasectomy reversal.

If treatment goes wrong in sterilisation or vasectomy, there are various claims that may result:

  • Wrongful conception: In addition, an action in contract may also arise if the sterilisation procedure was performed outside the NHS in the private sector.

  • Negligence: A breach of duty arises when an operation is not carried out in accordance with the practice accepted as proper by a reasonable body of gynaecologists (Bolam test). Negligence also occurs when there is omission in appropriate pre-operative counselling.

  • Wrongful birth: The negligent act deprived the mother of the possibility to prevent the conception of a disabled child or to have a lawful abortion

Women are entitled to recover general damages for pain and suffering during pregnancy and delivery, and loss of earnings during pregnancy. However, a 2000 court judgement held that the costs of bringing up a healthy child, or loss of earnings because of child-rearing responsibilities, are not recoverable (McFarlane v Tayside Health Board). Although, a case for compensation for the costs of bringing up a healthy child was upheld in the case where the mother was disabled (Rees v Darlington Memorial Hospital NHS Trust 2002) as this parent was not in the same position as able-bodied parents. However, there is a sum that is allowed to reflect the loss of the family’s opportunity to live life in the way that had been planned before the pregnancy. If a woman is proven to suffer from a psychiatric disorder, caused by the pregnancy itself, that continues to prevent her from working after the pregnancy, then a  loss of future earnings claim may be permitted.

Compensation that is limited to the special upbringing costs associated with rearing a child with a serious disability is allowed (Parkinson vSt James’s & Seacroft University Hospital Trust 2001, Salih v Enfield Health Authority 1991).

Both parents can claim for shock and distress on discovering the child’s condition as disabled, and the increased stress in bringing up the child. They can claim for lost earnings for bringing up the child, which they would not have lost had the child been healthy (McLelland v Greater Glasgow Health Board 2001).

In addition, parents that chose sterilisation to avoid the risk of a child with congenital abnormalities can recover the costs associated with the child’s disabilities, even though the disabilities had not been caused by the clinician’s negligent sterilisation.

Real Past cases

A very large award to a family when a significantly disabled child was born after a failed sterilisation procedure. The court allowed the extra costs of caring for and raising a disabled child

£180,000 after a sterilisation operation failed resulting in the birth of a fifth child, severe depression for the mother and her inability to work. The family lost their home as a result.

 

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Christine Brown

Senior Solicitor

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