A judicially misconceived birth

I see that both Scott Wickstein and Bernard Slattery have already blogged on yesterday’s Cattanach v Melchior decision, where the High Court dismissed an appeal from a Queensland judgment where substantial damages had been awarded to a couple (the Melchiors) who ended up with a healthy baby boy even though Mrs Melchior had had a sterilisation procedure (a tubal ligation) some years previously. Unfortunately the comment box discussion on both blogs has gone somewhat off-track, not least because my co-blogger Geoff Honnor posted some erroneous observations about what the Court actually found. In fact, Dr Cattanach was not found to have performed the tubal ligation negligently at all. His negligence consisted in failing to give Mrs Melchior advice that she should check to make sure that her right fallopian tube had been removed when she was 15 (as she believed and had told Dr Cattanach). Chief Justice Gleeson explains the situation in the following passage:

In 1992, Dr Cattanach recommended, and subsequently performed, a tubal ligation. Although it was claimed at trial that he did so negligently, that claim was rejected. The finding of negligence made by the trial judge, and upheld by the Court of Appeal, rested on a different basis. The trial judge found that, when Mrs Melchior first consulted Dr Cattanach, she told him that, when she was 15 years old, her right ovary and her right fallopian tube had been removed. When Dr Cattanach performed the tubal ligation, what he saw appeared consistent with that history. Accordingly, he attached a clip only to the left fallopian tube. In 1996, at the age of 44, Mrs Melchior discovered that she was pregnant. In 1997, she gave birth to a son, Jordan. It turned out that, contrary to her belief, her right fallopian tube had not been removed. The trial judge found that, by reason of certain aspects of her condition, it was not negligent of the doctor to have failed to observe that at the time of the sterilisation procedure. The finding of negligence was based upon a conclusion that Dr Cattanach had too readily and uncritically accepted his patient’s assertion that her right fallopian tube had been removed, that he should have advised her to have that specifically investigated, and that he should have warned her that, if she was wrong about that, there was a risk that she might conceive. The case was decided as one of negligent advice and failure to warn.

The proposition that the doctor’s failure to give such advice was legally negligent was not a ground of appeal to the High Court, and I haven’t checked whether it was a live issue at earlier stages of the appeal process. However, I must say that as a matter of first principles I think it’s a bit problematic. Negligent professional advice causing financial loss has long been a recognised cause of action in tort. Failure to give advice of possible adverse consequences (even quite unlikely consequences) of medical treatment has been much more controversial, although the High Court accepted that principle some years ago now (in Rogers v Whittaker in 1992). This decision seems to go a significant step further, in holding that failure to advise of something that should have been blindingly obvious to anyone, and which doesn’t require medical qualifications to realise, is also actionable. Why should Dr Cattanach necessarily be legally obliged to tell Mrs Melchior that there might be a problem if it turned out that HER advice to him was wrong and that her tube hadn’t been removed after all? At the very least I would have thought Mrs Melchior’s damages should have been reduced for her own contributory negligence in telling the surgeon that her tube had been removed without bothering to check that that was really the case. Why weren’t they? I’m not sure, and I’ll look back at the judgments at earlier stages when I get a chance. This seems to be a case of casting the entire onus of care on the doctor (or rather his insurer) and absolving the patient of any obligation to take care for her own welfare. The possible insurance and other consequences of holding that a doctor is legally liable for failing to check the accuracy of every single thing a patient tells him when taking a history are very considerable, and worthy of far more discussion than they apparently received.

The Cattanach decision is problematic in various other aspects as well. This is a classic example of judicial activism at its worst, and puts Australia’s tort law out of kilter with both Britain and the predominant approach in most US States (there’s no single common law of the US, a strange and somewhat archaic aspect of the American legal system). The law in those places doesn’t allow recovery of damages for the birth of a healthy child, even where that occured as a result of negligence. Australia is now rapidly outstripping the US as a happy hunting ground for litigious plaintiffs.

The majority (the Labor appointees McHugh, Gummow and Kirby JJ, joined by John Howard’s personal appointee Callinan J, who is reliably right wing on Aboriginal issues, but all over the shop on most other things) also appear to have ignored the principles laid down by the High Court itself as recently as 1999 for extending tort liability for conduct where the only consequence was pure economic loss (and not any injury to person or property). Until Perre v Apand in 1999 the common law generally didn’t permit recovery of damages at all in cases of pure economic loss. In Perre, the Court held that this shouldn’t be regarded as an iron-clad rule, but nevertheless stressed that such cases were frequently problematic, and that liability for pure economic loss should be extended only hesitantly into new areas. The 4 majority Justices didn’t even mention the Perre principles, except in passing in a footnote. Instead, they pretended that the case was a “simple” one of application of ordinary established principles: if there’s negligence the plaintiff should recover. Callinan J put it most crudely (at least the others had the wit to realise they were playing fast and loose with existing principles, and concentrated carefully on obfuscating that fact):

The only matter in this appeal that was in issue was what both parties characterized as an entitlement or otherwise to damages for economic loss. I think that characterization, although necessarily general and therefore imprecise, is reasonable in the circumstances, the parties having put aside, for the purposes of this appeal, any controversy with respect to damages for any physical assault, operation, intrusion or physical contact, of any kind. That being so, the case necessarily becomes, as McHugh J suggested early in the argument, a relatively simple one. The arguments of the appellants should be rejected.

The reasons why courts throughout the common law world (not just Australia) have always been reluctant to extend negligence liability to cases of pure economic loss are quite compelling IMO. They’re set out in Perre starting at paragraph [5]. The most relevant consideration for the situation we’re discussing is dealt with in Cattanach by Chief Justice Gleeson in the following passage:

The first reason for caution is the potential indeterminacy of the financial consequences of a person’s acts or omissions, and the need for “some intelligible limits to keep the law of negligence within the bounds of common sense and practicality”. In this context, indeterminacy does not mean magnitude. By focusing on the parent-child relationship, it is possible to draw a line short of adverse effects upon siblings and others. But even if account is taken only of foreseeable adverse financial consequences to the parents, there is no reason to suppose they will cease when the child turns 18, or to restrict them to those that form the subject of the present claim. If the cost of birthday and Christmas presents is to be included, why not, in an appropriate case, the expense associated with a wedding? If the cost of schooling is included, why not, in an appropriate case, the cost of tertiary education? Furthermore, as was noted earlier, the adverse financial implications of the assumption of parental responsibility might extend beyond the incurring of additional items of expenditure. What basis in principle is there for distinguishing between child-rearing costs and adverse effects on career prospects, which, in the case of some parents, might far exceed the costs of raising and maintaining a child?

Reference has already been made to another reason for caution in this area, which is the lack of precision in the concept of economic loss, as distinct from injury to person or property, which is usually readily identifiable. What kinds of detriment or disadvantage flowing from the parent-child relationship would be regarded as financial loss or harm? Parents might go through their lives making financial and other arrangements, and adjusting their circumstances, to accommodate the needs or reasonable requirements of their children. To what extent, and in what circumstances, would this count as economic harm?

So far, attention has been confined to financially negative aspects of the parent-child relationship. But why should that be so, especially if we are dealing with a claim that comprehends moral and natural obligations, as well as legal obligations? There was a time when the law imposed obligations on children to care for their parents. …

In modern society, legal obligations of children to support their parents have largely disappeared. But with an ageing population, and increasing pressure on welfare resources, the financial aspects of caring for parents are likely to become of more practical concern. Unless attention is confined to strict legal obligations, (and, if it were, the respondents’ claim would need substantial revision), then what justification is there for ignoring the natural and moral obligations owed by children to parents, and the financial consequences that may entail? Why should we focus exclusively on child care and ignore care of the aged? It is difficult to justify treating a relationship as damage, and then measuring the consequential harm by reference only to those aspects of the relationship that are easy to count, and that arise sooner rather than later. Although our society does not regard children as economic assets, it does not follow that they should be treated as unmitigated financial burdens.

Gleeson CJ, Hayne and Heydon JJ got it right in this case. Interestingly for lovers of irony, it also illustrates why John Howard was ill-advised to appoint an inferior intellect like Callinan J to the High Court merely because he was anti-Aboriginal. All three conventionally-appointed conservative Justices adhered closely to precedent and mainstream legal reasoning. This is a decision that should be legislatively reversed. Queensland Premier Peter Beattie has already indicated that he’s considering doing so.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Geoff Honnor
Geoff Honnor
2022 years ago

So…….how am I ‘erroneous’ exactly?

Geoff Honnor
Geoff Honnor
2022 years ago

My apologies for the first two commments which you may wish to delete.

My conclusion about the Court’s decision in regard to the surgeon’s responsibility is no different to yours Ken.

I don’t believe the Court was correct in assessing his liability – neither do you it seems.

Ken Parish
Ken Parish
2022 years ago

Geoff,

On Slatts’ blog you said:
The surgeon was aware of her assumption and didn’t check to see that it was so. But the tube hadn’t been removed at all in 1967 and he thus failed to deliver the sterilisation that he was contracted to perform. It’s a pretty standard expectation that a sterilisation should deliver what it promises and the surgeon’s ineptitude clearly militated against that occurring.
It seems to me not invidious that Mrs Melchior should seek redress as a result.
The first bolded words are incorrect. The court didn’t find that Dr Cattanach was negligent for having failed to check that Mrs Melchior had had a previous tubal ligation. It found that he was negligent in failing to advise Mrs Melchior that SHE should check. It’s a significant difference for the reasons I explain in the main post.

The second bolded section suggested to me that you agreed with the decision (as, more generally, did the tone and thrust of both your comments). However, apparently that isn’t so, so we’ve got that straightened out!

Geoff Honnor
Geoff Honnor
2022 years ago

I most certainly agree that the surgeon was negligent and I believe that Mrs Melchior was absolutely justified in seeking redress. I believe that the Surgeon should have incurred a financial penalty; I don’t think he should have incurred the costs of rearing the Melchior’s son.

How could Mrs Melchior ‘make sure’ that her right fallopian tube had been removed, without surgery?

Dave Ricardo
Dave Ricardo
2022 years ago

Ken,

you political spin on who’s who on the High court is full of holes. McHugh has shown hinself to be conservative many times. So has Gummow.

I agree about Callinan. A big C conservative, Tim Fischer called him. The first part is right, in any case.

On the case itself, you’ve been reading too much AMA propaganda. Anything grief those smug bastard doctors get is fine by me.

Ken Parish
Ken Parish
2022 years ago

Geoff,

Tort law doesn’t exist to penalise anyone. That’s the function of the criminal law, or medical board disciplinary proceedings. Tort law exists to compensate plaintiffs who suffer actionable, quantifiable damage as a result of the negligence of another.

Mrs Melchior could have verified whether her fallopian tube had been removed by seeking her previous medical records from the previous treating doctor. No doubt Dr Cattanach could also have done that, although he would have needed to obtain a signed release from Mrs Melchior first. However, as I said, the court didn’t hold that Dr Cattanach was negligent in failing to verify removal; it held that he was negligent in not telling Mrs Melchior that SHE should do so. I wouldn’t have had a major problem with this aspect of the case had the court held that Dr Cattanach was under an obligation to check, provided that it also held that Mrs Melchior was also not without responsibility in that regard.

At the end of the day, much might depend on the evidence as to how positively and strongly Mrs Melchior asserted that her tube had previously been removed. If she gave that information positively and without any tinge of doubt or uncertainty, I really don’t see why the doctor ought necessarily be nevertheless put on enquiry at pain of massive legal liability.

On the other hand, she was only 15 years old when the first medical procedure was performed, and maybe that’s also relevant. At such a tender age, perhaps it’s not unreasonable to expect a doctor of ordinary prudence to entertain the possibility that she might not have had a complete grasp of what was done to her back then, and therefore have been under a stronger obligation to advise and warn than might have been the case had he been dealing with a woman who had undergone a previous surgical procedure as an adult. I don’t know to what extent any of these factors formed part of the trial judge’s reasoning because, as I mentioned in the original post, this aspect was not a ground of appeal in the High Court and therefore is only discussed in passing.

Ron Mead
Ron Mead
2022 years ago

It’s interesting to see the High Court progressing even further into its activism, despite the neo(!)-conservative Heydon being relegated to the minority in this case. I seem to recall Ken being quite scathing of Heydon’s anti-activism attitudes in some posts shortly after his appointment earlier this year. Now it seems he’s at least attempting to restore some sanity to the Court, albeit unsuccessfully.

I’m not qualified to assess Judge Callinan’s degree of intellectual inferiority or otherwise, but I think Kirby’s consistency in being on the nutter side of most split decisions is even more of a worry. After all his vote was as decisive as Callinan’s in this case.

Ms Melchior was quoted in today’s press as denying that her son was anything but “unwanted”. Otherwise, she says, she would have had an abortion. Presumably she had no moral objections to abortion, simply that she wanted to proceed with the birth now that she was pregnant. Just like most mothers do when they discover an unintended pregnancy. It appears that the production of her child resulted from this voluntary decision on her part. Isn’t there some legal principle of an obligation for plaintiffs suffering economic loss to mitigate their loss as soon as its likelihood is discovered?

Ken Parish
Ken Parish
2022 years ago

Dave,

McHugh and Gummow certainly tend towards conservatism on many issues, notably native title, implied rights (and constitutional law generally) and so on. However, they’ve tended to form part of an expansionary, activist block in relation to negligence liability. There are numerous examples, of which Perre v Apand and yesterday’s decision are good examples. So too is the Brodie/Ghantous decision in 2001, where the four Labor-appointed Justices joined together to extend the law of negligence by abolishing the old immunity of governments and local authorities for “non-feasance” in relation to repair of roads, footpaths, bridges etc. there are many other examples. The ideological orientation of High Court Justices also tends to be more evident in industrial relations appeal and judicial review matters.

I’m not suggesting that Justices are party political animals who calculatedly decide cases on a political partisan basis, but one would be naive to think that a judge’s general political orientation is irrelevant to the way they see and decide at least some cases. This sort of “legal realism” would be regarded as quite unremarkable, almost self-evident by American lawyers, but many Australians still seem to find such suggestions problematic and even scandalous.

Ken Parish
Ken Parish
2022 years ago

Ron,

Are you seriously suggesting that the mitigation principle should be construed and extended so as to oblige a pregnant woman to terminate her pregnancy or have her child adopted on pain of being disqualified from an award of damages? Apart from the fact that many would find such a rule morally repugnant, in many/most States abortion is still prima facie a crime, unless the mother’s health is in danger. In reality, there are enough doctors who interpret the exception very loosely so that we really have a system almost indistinguishable from abortion on demand, but you still must commence with the proposition that it’s prima facie a crime. Thus, you’re suggesting that the High Court should impose a requirement that a plaintiff is obliged to mitigate otherwise actionable damage by committing a criminal act!!

Ken Parish
Ken Parish
2022 years ago

Just to avoid having the discussion go off at a tanget, I should say that I’m not suggesting there’s an absolutely invariable tendency for Labor-appointed Justices to decide in favour of expanding negligence liability and Tory-appointed ones to favour the status quo. There are some cases where a Labor Justice went with the tories, and others (like Cattanach) where a Tory judge went with the Laborites. There are even some cases where most or even all justices declined to extend the scope of negligence. Nevertheless, I DO suggest that there’s a clearly identifiable ideological trend in the negligence decisions viewed over time.

cs
cs
2022 years ago

Ken and Dave

Ok, we all agree on Callinan. Beyond that, and without buying into the substantive issue of this case, all my observations would support Dave.

I have watched McHugh in particular … OK, mainly because Jeannette McHugh is a good and treasured friend of mine … and I must say I have been disappointed with his decisions. Don’t get me wrong, I think he is a very good lawer and high court justice. To me, however, his pattern appears to follow the intellectual lines of argument very soundly, and then to err, however slightly, on the side of caution. This is not necessarily to cover all the meanings of conservativeness, but it is sufficient to frustrate me … sometimes bitterly.

However, whenever I look at his judgements, they make sense. In some ways he’s too smart by half. And when he steps out on an issue, I think his position is to be respected in its own right and followed closely, not automatically pidgeon holed. The wildest and many ways most wonderful thing about the high court is its independence. Yes, they have their political colours, and the political parties all like to try to be the venriliguists to the dummys they appoint. Yet the killer is that they are not looking to get a political job, or dependent in any way.

Truth, in these circumstances is always likely to get a better look-in than ordinary politics. OK, to some extent, we see all the justices through the prism of the particular cases we follow, so I don’t know how much of the field we cover between us, or where the respective individual balances lie. To some extent, however, we are probably reaching across a no-mans land where neither of us have it nailed.

Yet, my read is that this careful and precise man has made a break. He doesn’t go swimming in dangerous waters, and I suspect we may be rewarded by confining the analysis to the merits.

Ron Mead
Ron Mead
2022 years ago

Ken, I agree with the points you make about abortion. My remarks were a flat-footed attempt at being tongue-in-cheek. However it seems that it’s politically correct these days to be pro-“choice” as if proceeding with a known pregnancy is just a matter of choice, like which movie will we go and see tonight. These days it seems it’s only the dreaded neo(!)-conservatives who appear to have any ethical objections to abortion.

I think the point I was trying to make about this judgement is that I agree with John Anderson that it reduces a child to that of being a mere commodity, a thing, or even worse a severe misfortune like a cancer. And if you discovered a cancer subsequent to an initial mis-diagnosis you would presumably seek treatment to mitigate if not cure its effects.

Ken Parish
Ken Parish
2022 years ago

Chris,

In general terms I agree with what you say about McHugh. In fact, as I’ve commented before on this blog, he’s my favourite judge. Gummow also fits your description. Nevertheless, there are “leeways of choice” (as the late great Julius Stone put it) in appellate decisions, and both McHugh and Gummow make much greater use of those leeways in tort personal injury and industrial relations decisions than they do in most other matters. It doesn’t mean that their reasoning will read as dodgy, especially to the non-specialist, nor am I suggesting that this phenomenon lacks integrity. Nevertheless, if you read Cattanach with knowledge of the cases and doctrines that went before, you see that they DO engage in some judicial sleight of hand to reach the decision they do.

Simply compare the joint judgment of McHugh and Gummow JJ with either that of Gleeson CJ or Heydon J (which both explain well the conventional position with pure economic loss cases and analyse how those principles apply to the situation of birth of a healthy child as a result of medical negligence). McHugh and Gummow don’t even so much as mention Perre v Apand let alone make any attempt to analyse the facts of Cattanach by reference to the principles for extension of pure economic loss set out there. the only oblique reference to Perre is in a footnote to this arrogantly dismissive sentence: “It does not advance understanding greatly, one way or the other, to describe the expenditure required to discharge that obligation as “economic loss””. Yet Perre is a very recent decision (1999) and the definitive word on pure economic loss cases, which for the first time opened the gate to recovery in such cases, but with strong precuationary principles set out to ensure that judges did not willy nilly ignore the inherent difficulties. Perre effectively said that one should be very cautious about extending liability for pure economic loss. McHugh and Gummow completely ignore that and start from a precisely opposite presumption: that there should always prima facie be liability for any form of damage caused by negligent acts unless there is a compelling reason for providing an inmmunity from liability. It’s an audaciously clever line of reasoning, and sounds a lot like commnsense, but it’s diamtrically opposite to the principles laid down in the leading High Court decision in the area, decided only 4 years ago. On any view this is judicial activism.

Moreover, it’s judicial activism of a type that dishonestly obfuscates even the fact that a dramatic change to existing doctrine is taking place. My jurisprudential hero Julius Stone argued that there was nothing wrong with judges making use of the “leeways of choice” to shape and develop the law, but that they should honestly acknowledge what they were doing, and attempt as far as possible to set out and analyse all the public policy and other considerations (social, economic etc) that weighed in favour of and against developing the law in that way. Sometimes the High Court does this, but on this occasion the Labor judges (with Callinan along for the ride) have effected a quite major development of the common law by subterfuge, and without any meaningful attempt to grapple with public policy and other considerations at all. Instead they embark (at para[69] and following) on a question-begging exercise exercise of asserting that “public policy” and “judicial policy” are two different things, culminating in this sweeping conclusion: ” … the courts can perceive no such general recognition that those in the position of Mr and Mrs Melchior should be denied the full remedies the common law of Australia otherwise affords them. It is a beguiling but misleading simplicity to invoke the broad values which few would deny and then glide to the conclusion that they operate to shield the appellants from the full consequences in law of Dr Cattanach’s negligence.” Again, framing the issue in that way obfuscates the fact that they’re actually approaching the issue from the opposite direction to the conventional one, and also avoids having to grapple at all with public policy and other issues flowing from such a dramatic change (because they’re obfuscating the fact that the change is even being made).

It may well be that there are persuasive reasons for extending the law of negligence to cover situations of this sort. It may well be that the insurance and other consequences are greatly exaggerated by the doctors and insurers, and that there are principled answers to the majority Justices’ (mainstream) arguments that the boundaries of liability in such a case are inherently so indeterminate as to be incapable of any but the most arbitrary and uncertain delineation (see the quote from Gleeson extracted in my main post). But McHugh and Gummow make no attempt at all to grapple with any of these issues. That’s why I object strongly to their approach in this case, and label it illegitimate judicial activism.

Ken Parish
Ken Parish
2022 years ago

Come to think of it, I’ll withdraw my concession about McHugh that “nor am I suggesting that this phenomenon lacks integrity”. His and Gummow’s reasoning in this decision DOES lack integrity if that word is to have any sensible meaning. I should point out here that the word “integrity” has a jurisprudential provenance. American jurisprudential scholar Ronald Dworkin has a theory he calls “law as integrity” which postulates that an appellate judge’s task in developing the law is to strive for “best fit” having regard to logic, precedent, history, language, cultural, social and economic factors etc. He acknowledges that it would take a “superhuman” judge to succeed in taking all these things into account comprehensively, but nevertheless the disciplined task of striving to do so is (he argues) what gives the judicial role its “integrity” and sustains its democratic legitimacy.

McHugh is quite overtly a devotee of Dworkin’s approach. Unfortunately Dworkin’s theory, unlike Stone and American legal realists starting with Oliver Wendell Holmes Jnr, doesn’t insist that “integrity” necessarily requires that one must always spell out expressly in reasons for decision all the social, economic and other public policy reasons for developing the law in a given direction.

McHugh is quite frequently a serious offender in obfuscating the fact that he’s making choices that could equally well go the other way, and therefore in spelling out the public policy considerations that motivated him to make a particular choice. Wakim (which declared a substantial part of Australia’s system of jurisdictional cross-vesting unconstitutional) and Eastman (the decision that severely restricted the scope of the High Court’s appellate jurisdiction) are both examples of cases where McHugh reasoned in a way which denied that he was making choices where other principled options were potentially open, and thereby avoided discussing in any meaningful way the public policy considerations militating for and against the choice he actually made. This mode of judicial reasoning lacks integrity in its dictionary sense, if not in the sense Dworkin uses it.

Geoff Honnor
Geoff Honnor
2022 years ago

What do you think the outcome should have been here, Ken?

Ken Parish
Ken Parish
2022 years ago

Geoff,

I wouldn’t have had a major problem if the majority Justices had reasoned, analysed and reached the conclusion they did in an honest, principled fashion (i.e. with “integrity). However, my own view accords with that of Gleeson and Heydon:
(1) the potential heads of damage in a case of this sort are so wide and indeterminate as to make it inappropriate to extend negligence liability to cover such situations.
(2) You can’t sensibly compensate for the cost of rearing a child, while ignoring the compensating benefits (some quantifiable and some not) that children also bring (especially emotional, financial and practical support in the parents’ old age).

Geoff, I note that you agree that the doctor shouldn’t have to pay for the child’s upbringing, but believe he should be “penalised” for his negligence. As I’ve already commented, that misconceives the purpose of tort law. However, the fallacy in your approach is also demonstrated by the fact that, apart from a small allowance for pain and suffering, the only things for which Mrs Melchior sought and obtained damages were the costs of raising the child. That is for the simple reason that, at least where the child born is healthy, that’s the only quantifiable damage that will be suffered by the parents. Thus, if you say the doctor shouldn;t have to pay for the child’s upbringing, you’re effectively saying the plaintiff shouldn’t be permitted to recover damages in such a situation.

Geoff Honnor
Geoff Honnor
2022 years ago

My sense is that she should have been able to be confident that her legtitimate decision to be sterilised had been fulftlled via professional surgical intervention. I remain confused as to how she might be expected to validate the integrity of her sterilised/non-sterilised state without expert examination – which is why my initial – and wrong assumption – about Cattenach’s liability was made. If in fact his only omission was in failing to advise Mrs Melchior of the fact that the onus was on her to verify what occurred in 1967 then I’m even more confused. How can a surgeon legitimately proclaim ‘sterilisation’ with a fully intact fallopian tube still in situ? More importantly, if doubt existed, to any degree, would he not check when carrying out the ligation on – the supposedly – one remaining tube? They’re right beside each other, after all……

Perhaps I’m just confused…….

“Confused of Sydney”

Ken Parish
Ken Parish
2022 years ago

Geoff,

You can find the trial judge’s decision in Cattanach here. It’s well worth reading. Having done so myself, I discovered that, like you, I have also misstated precisely what conduct (or rather non-conduct) the judge found to be negligent. It wasn’t found (as I had suggested) that the doctor had been negligent in failing to advise that Mrs Melchior should go and obtain the medical records. That was because the original surgical procedure had taken place some 25 years before, and the evidence was that the records were unlikely still to exist. Thus neither the doctor nor Mrs Melchior were in a position to obtain them.

Instead, the finding was one of failure to advise the patient as explained in the following passage. After analysing the evidence about whether it was negligent not to arrange various tests that might conceivably have revealed that the right tube had not been removed (contrary to Mrs Melchior’s instructions) and concluding that it wasn’t (negligent, that is), the judge found as follows:
Given the obvious drawbacks to such a procedure in terms of the discomfort likely to be experienced by the patient, I do not think it can be said that Dr Cattanach was negligent in failing to arrange it. However in the circumstances of this case, given the reasons for caution in acting on Mrs Melchior’s history, to which I have already adverted; given that there was no unequivocal evidence of the removal of the tube by way, for example, of a sighting of its stump; and given her clearly expressed desire for sterilisation – reflected in Dr Cattanach’s letter to the Redland Hospital which refers to Mrs Melchior’s “strong request”- I consider that it was incumbent on Dr Cattanach to ensure that Mrs Melchior was informed, firstly, that the absence of the tube had not been positively confirmed; secondly, that if it should prove to be present she faced significantly higher prospects of becoming pregnant than was usually the case after sterilisation (between 2 and 4 per cent according to Dr Molloy, as opposed to a chance of between 2 and 4 per thousand, a ten-fold increase in risk); and thirdly, that there was available a procedure in the form of the hysterosalpingogram which was likely to disclose the existence of a functioning fallopian tube. The risk of pregnancy was material in both senses used in Rogers v Whitaker; that is to say, it was one to which a reasonable person in Mrs Melchior’s position was likely to attach significance, and one to which Dr Cattanach should have been aware that she was in fact likely to attach significance.
Note that the actual facts dispose of one of the concerns expressed in my original post. That is, the nature of the advice that the judge held should have been given was medical and non-obvious to a layman, and hence doesn’t represent an extension of the principles in Rogers v Whitaker.

Nevertheless, in other respects the facts reveal the arguably absurd lengths to which doctors have to go to satisfy the Rogers principles. That is, despite the fact that the judge found Mrs Melchior DID instruct Dr Cattanach that she had had her tube removed before; that she was likely to have done so with a misleading air of authority and certainty that was likely to have misled the doctor; that both an ultrasound and inspection at the time of subsequent surgery were consistent with the history Mrs melchior had given; that there were various reasons why the range of possible tests available to confirm the absence or otherwise of the right tube were at least arguably not advisable; and, last but not least, that Dr Cattanach DID advise Mrs Melchior of the possibility that the operation might not in fact succeed in rendering her sterile; nevertheless Dr Cattanach was held to be negligent. In effect, that is because, although he told her in general terms that the operation might not succeed, he failed to tell her that if it turned out that the tube had not in fact been removed, the chance of pregnancy increased from between 2 and 4 in 1000 to between 2 and 4 in 100. The Rogers principles dictate that it’s negligent not to advise a patient of a possible increase in risk of that magnitude (for tiny to small), because it might conceivably impact the patient’s decision on whether to have the operation, or whether to authorise other diagnostic procedures even though they would have been painful and of dubious usefulness.

Geoff Honnor
Geoff Honnor
2022 years ago

It begins to dawn on me that virtuallly not a single public utterance on this matter – from Anderson’s tedious God-bothering on down – will have been made with possession of the full facts.

More frighteningly, the ‘facts’ appear to be at best tangential, at worst irrelevant, to the debate. I may just have had a Margo Moment….

Tysen
Tysen
2022 years ago

How did they conclude that the failure to advise Mrs Melchior of her specific risk caused the child’s birth?

If the Doctor had said to her that even if she was previously advised that one of her tubes had been rendered non-functional that there was a margin of error in that previous advice which would play a clinically significant part in the success of the present procedure (ie if he had told her of both risks – the risk of conception should he unsuccessfully perform the procedure (4-6 in 1000) as well as the risk of conception if he successfully rendered the present tube non-functional but that the previous diagnosis that she relayed to him was inaccurate (4-6 in 100)) that it would have caused her to change her mind? It’s possible that she would have changed her mind but doesn’t it have to be more than just possible for it to be a substantial cause of the financial harm that resulted? Or do they answer that by saying she was desperate to be steralised and therefore she definately would have taken additional precautions?

Ken Parish
Ken Parish
2022 years ago

Tysen,

Good question. I’m not totally certain (not being a torts specialist), but I assume on first principles that it IS necessary for there to be a clear finding of a causative link between the failure to give advice and the damage that was ultimately suffered. Certainly in Rogers v Whittaker there was an express finding that the ungiven advice would have entailed the patient doing something different had it been given, which would have resulted in the damage not occurring. Similarly in Cattanach. The trial judge found: “Mrs Melchior’s evidence, which I accept on this point, was that had she been aware of the risk of pregnancy she would have had any tests necessary to ensure that the sterilisation had been effective. …

In the circumstances I conclude that Dr Cattanach was negligent in terms of particular (a); that is, in failing adequately to inform Mrs Melchior of the possibility that the procedure would fail to be effective because of the possibility of the continuing existence of the right fallopian tube so as to give her the option of considering further investigation in the form of a hysterosalpingogram. That negligence was a material cause of her pregnancy and the birth of Jordan.”

woodsy
woodsy
2022 years ago

Like Geoff I’m confused. I thought the High court was there to set precedents so that the legal system could function reasonably efficiently. If this is the sort of decision that they are going to make there’s a high probability that the system will suffocate under the weight of mischevious litigation.

What damage did the family suffer from the birth of a healthy baby for christ sake? I agree with Anderson (and that’s a first for me, I generally regard him as a dickhead)it reduces a human being to a commodity. How much do you spend on Xmas presents ! That the high court should spend it’s time on such weighty matters is ridiculous. It is also an insult to all those couples who are desperate to have a baby. If Melchior didn’t want to bear the cost of raising her baby then adopt it out to one of the thousands of couples that would gladly spend all they owned on a healthy child. The whole case is bullshit!

woodsy
woodsy
2022 years ago

Like Geoff I’m confused. I thought the High court was there to set precedents so that the legal system could function reasonably efficiently. If this is the sort of decision that they are going to make there’s a high probability that the system will suffocate under the weight of mischevious litigation.

What damage did the family suffer from the birth of a healthy baby for christ sake? I agree with Anderson (and that’s a first for me, I generally regard him as a dickhead)it reduces a human being to a commodity. How much do you spend on Xmas presents ! That the high court should spend it’s time on such weighty matters is ridiculous. It is also an insult to all those couples who are desperate to have a baby. If Melchior didn’t want to bear the cost of raising her baby then adopt it out to one of the thousands of couples that would gladly spend all they owned on a healthy child. The whole case is bullshit!

Geoff Honnor
Geoff Honnor
2022 years ago

Wayne, from everything the Melchiors have said, they love Jordan and don’t regret him – now he’s here – for one minute. I don’t know that anyone can reasonably dispute that as an external observer.

Mrs Melchior appears to feel that she was done over by Medicine Inc when her sole intent was to prevent giving birth to a child who might have been subject to a genetically derived illness that she and her husband could pass on. At least that’s how I understand it.

Random_Prose
2022 years ago

I thought Heydon was a cricket player, wow, he must be a bit of a go getter, aye.

Herbert Thornton
Herbert Thornton
2022 years ago

Maybe doctors who want to avoid actions of this sort should now tell women who want to be sterilised that tying their tubes isn’t reliable & they should instead have a complete hysterectomy.

trackback
2022 years ago

Disgusting decision

Remember when judges were wise men, not activist fools doing the bidding of ambulance chasing sharks. Deputy PM John Anderson speaks for decent Australians on a disgraceful court decision: A HIGH Court decision to award damages for the birth of…