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Legal implications of ineffective sterilization
Published online by Cambridge University Press: 02 January 2018
Extract
Sterilisation (vasectomy in the case of the male and tubal ligation or laporoscopy or other variants in the case of the female) is a common method of contraception. It is perceived as having none of the practical and aesthetic disadvantages of ‘mechanical’ methods and none of the health risks associated with oral contraception. It seems to be generally assumed that these procedures are one hundred per cent effective. Indeed, they probably are the most effective methods available, but there are at least two possible sources of failure. First, the procedure may not be performed correctly, though in the case of vasectomy this does not present a very serious problem if, as is normal vasectomy practice in this country, fertility tests are carried out over a fairly extended period before the patient is advised that he may rely upon the operation.
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References
1. It is estimated that in the United Kingdom about I million women of child bearing age and about 1 million men have been sterilised: The Times, 15 October 1984.
2. 450 So 2d 822 (1984).
3. Sometimes called ‘late recanalization’, the expression ‘early recanalization’ being applied to the actual reuniting of live tissue which may take place if the procedure is not properly performed. In this article recanalization means late recanalization only.
4. [1984] 1 All ER 513.
5. There may be strict liability with regard to defects in goods supplied under a medical contract (see Bell in (1984) 4 LS 175) but sterilisation procedures would not seem to offer much scope for the application of this. Cf Samuels v Davis [19431 1 KB 526.
6. Sees 11.
7. In Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 3 All ER 99 a warranty of fitness of a building was implied in the particular circumstances.
8. See, for example, the well-known case of Hawkins v McGee 146 A 641 (NH 1929). There is widespread advertising of facilities for cosmetic surgery.
9. [1984] 2 All ER 513.
10. Ibid at 520.
11. Marvin v Talbott 30 Cal Rptr 893 (1963).
12. The medical equivalent of the salesman's claims which Learned Hand J characterized as ‘rather designed to allay the suspicion which would attend their absence than to be understood as having any relation to objective truth’: Vulcan Metals Co v Simmons Mfg Co 248 F 853 (1918).
13. Bailey v Harmon 222 P 393 (Col 1924).
14. Hawkins v McGee, n 8, supra.
15. The consent form used by one well-known clinic operating in this area incorporates such a warning. There remains, of course, the possibility of an overriding, collateral, oral warranty.
16. Compare the view, reported to the writer, of a very eminent member of the medical profession, that while there might be a very small risk that one day British Airways might lose a 747 in mid-Atlantic he did not think they were obliged to inform boarding passengers of this.
17. William v St Helens & District Hospital Management Committee 29 April 1977, mentioned in F v R, infra. See also Waters v Park, (1961) Times 15 July.
18. (1983) 33S SASR 189.
19. Eg bilateral salpingectomy.
20. In particular, Chatterton v Gerson [1981] 1 All ER 257. See now Sidaway v Bethlem Royal Hospital [1985] 1 All ER 643.
21. See (1983) 33 SASR at 195.
22. (1980) 109 DLR (3d) 455. A claim based on warranty of effectiveness failed on the facts. It appears that the doctor had been at pains to point out to the plaintiff the irreversibility of the operation. The possibility of deliberate reversal is indeed probably more likely to be in the mind of a patient than the possibility of ineffectiveness.
23. See n 20 supra.
24. That is to say, to seek an abortion. As explained below, the failure to warn can hardly be said to be causative of the pregnancy.
25. And who says, with Macbeth, ‘But yet I'll make assurance double sure and take a bond of Fate’ (Act IV, Sc 1).
26. The contrary statement of the Privy Council in Selvanayagam v University of West Indies [1983] 1 WLR 585 is inconsistent with the overwhelming weight of authority.
27. [1984] 3 All ER 1044.
28. Ibid at 1049, 1053. It is notorious that there is difficulty in drawing the line between the two concepts.
29. Ibid at 1055.
30. (1979) 123 SJ 406.
31. (1983) Times 3 January.
32. Though she asserted that she believed herself to be from 26 to 28 weeks pregnant.
33. The trial judge had concluded that the plaintiff had gone ahead with the pregnancy in order to be able to sue the defendant but the Court of Appeal held that there were fatal flaws in his assessment of the plaintiffs veracity.
34. See Lord Reid in McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621.
35. [1984] 3 All ER at 1053.
36. Ibid at 1055.
37. The difficult passage at 1055g-h may just possibly imply that it is easier to treat refusal to have an abortion as a failure to mitigate than as an intervening cause, but the point is not pursued.
38. The question may be further complicated in cases of unsuccessful vasectomy, for the plaintiff will then have to persuade someone else to undergo an abortion.
39. See eg Troppi v Scarf 187 NW 2d 511, 519 (Mich 1971); Sherlock v Stillwater Clinic 260 NW 2d 169 (Minn 1977). See also s 43.6(b) of the California Civil Code: ‘the failure or refusal or a parent to prevent the live birth of his or her child shall not be a defence in any action against a third party, nor shall the failure or refusal be considered in awarding damages in any such action.’
40. Roe v Wade 410 US 113 (1973).
41. Troppi v Scarf n 39 supra, where the same attitude was taken to abortion.
42. Scuriaga v Powell, n 30 supra; Stills v Gratton 127 Cal Rptr 652 (1976).
43. Troppi v Scarf n 39 supra; M v Schmid Laboratories 428 A 2d 515 (NJ 1981).
44. McKay v Essex Area Health Authority [1982] QB 1166.
45. For the possibility of claims by siblings, see below.
46. See Anns v London Borough of Merton [1978] AC 728 per Lord Wilberforce, already cited almost times without number. It is true that this is the language of the tort of negligence and Peter Pain J, dealing with the contract claim in Thake v Maurice, referred to traditional authorities on public policy in contract, but with the shift in attitude towards the burden on questions of policy which has followed the Anns case it is suggested that nothing should turn for this purpose on the classification of the claim.
47. The American law up to 1981 is fully discussed in a note in (1982) 68 Va L Rev 1311.
48. Two well-known examples are The Wagon Mound (No 2) [1967] 1 AC 617 and Petition of Kinsman Transit Co 338 F 2d 708 (1964). In fact the ‘disproportionality’ argument has been used as a criticism of the law of negligence: Atiyah, Accidents, Compensation and the Law (3rd edn), p 473.
49. Perhaps Byrne v Deane [1937] 1 KB 818 provides a very remote analogy, albeit in an utterly different context.
50. [1983] 2 All ER 522.
51. See eg Coleman v Garrison 349 A 2d 8 (Del 1975).
52. McKernan v Aasheim 687 P 2d 850 (Wash 1984).
53. Yet might not many thousands of parents say that, while their child was an ‘accident’ or unplanned, yet they would not now reverse that situation even it they could?
54. 628 SW2d 568 (1982).
55. It is not easy to see how the court in Udale's case felt able to include an element in the award for ‘disturbance to the family finances’.
56. [1984] 2 All ER at 526.
57. Ibid.
58. In fact, counsel for the defendant conceded that as a general rule the extra costs of raising an abnormal child above those of a healthy one should be recoverable. Some American jurisdictions allow such a limited range of recovery (eg Dumer v St Michael's Hospital 233 NW 2d 372 (Wis 1975) (failure to diagnose rubella in mother)). Cf Turpin v Sortini 182 Cal Rptr 337 (1982) (child entitled to recover extraordinary expenses attributable to disability).
59. [1983] 1 AC 410 at 430.
60. It is curious that Waller LJ mentions the speech of Lord Edmund Davies in McLoughlin v O'Brian without adverting to the fact that it contains a robust refutation of Lord Scarman's thesis. Further guidance on the whole question is likely to come from the appeal in Leigh & Sillivan v Aliakmon Shipping [1985] 2 WLR 289. Though the Court of Appeal was divided as to the result none of the judges seems to subscribe to the Scarman thesis.
61. See for example, the prolonged inactivity over the problem of the ‘lost years’, where inertia prevailed until the House of Lords created a situation threatening double recoveries.
62. For example, the campaign which was whipped up for legislation on surrogate motherhood before the Warnock Report had been fully digested.
63. It might be possible to conduct a pragmatic enquiry into some of the issues of policy (eg the risk of feelings of rejection) though it is unlikely that the findings would be decisive. 64. 352 NYS 834 (1974).
65. Of course, Junior Books v Veitchi [1983] 1 AC 520 and its progeny arguably indicate a contrary policy on this issue in another context.
66. In Thake v Maurice future upkeep was calculated on the basis of supplementary benefit scales. ‘That is right. Samantha has been born into a humble household and the defendant should not be expected to do more than provide her with necessaries’: [1984] 2 All ER at 527. Presumably, therefore, if the child were born into a ‘top slice’ household the damages could include, eg, school fees.
67. [1984] 3 All ER at 1056.
68. 260 NW 2d 169 (Minn 1977).
69. But not of course entirely: the deduction from the cost of upbringing in Emeh of child allowance is an example of the correct application of the Restatement rule.
70. Though it is sometimes enthusiastically cited by courts which deny recovery altogether: The Fulton-Dekalb Hospital v Graves 314 SE 2d 653 (Ga 1984).
71. (1945) 70 CLR 266 at 278: ‘But when there are two interests adversely affected you cannot treat recompense for one as a gain arising from the occurrence and operating in relief of the loss or injury to the other interest. Indeed, even when one of two separate interests is benefited in consequence of a wrongful act, the benefit cannot be set or against an injury to the other.’
72. [1978] I WLR 746. See also Taylor (Wholesale) v Hepworths [1977] 2 All ER 784.
73. There was no claim for loss of rent, but the plaintiffs accepted it would have been proper to make an offset against such a claim.
74. [1970] AC 1. Of course, the 1948 Act and nearly all the case law is concerned with benefits received not from the defendant but from a third party.
75. S Il(1).
76. S 38(1).
77. Limitation Act 1980 s 11(4)(b)
78. Ibid, s 33.
79. It would have to be argued that a person's physical condition was impaired when he was led to act in reliance on an erroneous belief that a physical act could not have its normal consequence.
80. Cf McKay's case, n 44 supra.
81. His claim would then ‘include damages in respect of personal injuries to [another] person’: s 11(1).
82. In most contexts the issue hardly matters since the mother may claim such expenses in her own right. Before the Administration of Justice Act 1982 medical expenses may have been recoverable by a husband on the basis that they were incurrd in mitigation of a claim for loss of consortium. It remains to be seen whether they are still recoverable on the basis of a legal obligation to maintain (see Lord Goddard in Best v Samuel Fox & Co Ltd [1952] AC 716 at 733). The matter becomes even more obscure if father and mother are not married.
83. [1973] 2 QB 233.
84. Or, perhaps, that he will become so during the usual three-month period after the operation.
85. She appears to have been a party in Thake v Maurice.
86. The position is theoretically different in those jurisdictions in the United States where tort limitation statutes purport to run from the doing of the negligent act; but the effect of this is often removed because courts have adopted the principle that time does not run until the discovery of the wrong.
87. [1983] 2 AC 1.
88. Whether either this proposition or Pirelli itself are consistent with Junior Books v Veitchi remains to be seen.
89. [1983] 2 AC 1, 16.
90. [1983] 2 All ER 833.
91. Ibid at 840. But what scope does this leave for Lord Fraser's dictum? The only purpose of a security gate is to keep out intruders.
92. [1984] 1 WLR 1274, 1288. See also London Congregational Union v Huniss [1985] 1 All ER 335 (building subject to risk of flooding not doomed from start); Kensington etc AHA v Wettern Composites Ltd [1985] 1 All ER 346.
93. It does not seem likely that the courts would now deny a duty because mother and father were unmarried. But suppose at the time of the negligence they were unknown to each other. Does the doctor owe a duty to every woman the father impregnates?
94. The mother was the only plaintiff in Udale's case, n 50 supra.
95. See Thake v Maurice, supra.
96. In any case, the problem is only serious if the court infers that there was a long gap between recanalisation and pregnancy and it may be reluctant to do so: see text at (2) above.
97. Cmnd 9390, 1984.
98. Ibid, para 1.1.
99. Ibid, para 4.22.
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