Failed Sterilization and Omission to Warn: The Causation Problem

In Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161 M had undergone a vasectomy arranged by the defendants in 1984. The defendants advised him that the operation had been successful and that he did not need to use contraception in the future. In 1988 the plaintiff began a sexual relationship with M and he told her that he had been sterilized. The plaintiff also consulted her GP who assured her that the chances of becoming pregnant by M were minute. Following this neither the plaintiff nor M used any form of contraception, but in 1989 the plaintiff became pregnant. She claimed damages from the defendants for the expenses of the birth, the cost of bringing up the child and loss of earnings. The Court of Appeal held that a woman who knew and relied on the fact that her sexual partner had undergone a vasectomy did not have a cause of action in negligence against the person who performed the surgery or advised her partner about the effects of the surgery if she became pregnant as a result of the failure of the vasectomy to achieve complete sterility. This was despite the fact that the man (M) had been assured that the vasectomy had been successful and he did not need to use contraception in the future

Applying Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643

[19871 2 All ER 888

[1994] 5 Med LR 432

[1995] 6 Med LR 371

[1996] 7 Med LR 71

This danger is not limited to plaintiffs, of course. Defendants also have to confront the moral hazard of adjusting or selecting the evidence that best suits their case

(1988), [1994] 5 Med LR 285, 289

Although see the comment of Roger Clements in (1993) 4 AVMA Medical and Legal Journal (No. 2) p. 19, stating that the failure rates for male and female sterilization are very similar, and that the plaintiff's expert evidence in Gold was not challenged. But see also McLennan v Newcastle Health Authority [1992] 3 Med LR 215 where the plaintiff was told that vasectomy had a smaller failure rate than female sterilization by tubal ligation. Of course, hysterectomy might reduce the risk of pregnancy even further but in Lybert v Warrington Health Authority [1996] 7 Med LR 71 the expert evidence indicated that hysterectomy would not be undertaken purely for contraceptive purposes

[1986] 1 All ER 497

This argument also succeeded in Lybert v Warrington Health Authority [1996] 7 Med LR 71

If the sterilization operation itself has been performed negligently there will be no difficulty in proving causation. The plaintiff's refusal to undergo an abortion when she discovers that she is pregnant does not break the causal link between the breach of duty and the financial loss sustained by the plaintiff: see Emeh v Kensington and Chelsea Area Health Authority [1984] 3 All ER 1044. But in a Thake v Maurice situation a blanket unwillingness to have had a termination of pregnancy would undercut causation, because the failure to warn would not have altered the plaintiff's conduct.

It should also be noted that the risk of a sterilization operation failing to achieve complete sterility is not necessarily the only risk associated with the procedure. In Walsh v Family Planning Services Ltd [1992] 1 IR 496 the Supreme Court of Ireland held that, notwithstanding medical evidence to the contrary from some of the witnesses, there was an obligation to warn a patient about to undergo a vasectomy that very rarely, for no known reason, some patients experience pain for some years after the operation, affecting sexual function. McCarthy J. said that: ‘In determining whether or not to have an operation in which sexual capacity is concerned, it seems to me that to supply the patient with the material facts is so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical doctor would fail to make it. What then is material? Apart from the success ratio of the operation, what could be more material than sexual capacity after the operation and its immediate sequelae? Whatever about temporary or protracted pain or discomfort, the only information given to the plaintiff and his wife on the score of sexual capacity, upon which they placed so much emphasis, was that contained in the brief paragraph headed ‘Does it affect your sex-life? No.’ (at pp. 520–521)

Chatterton v Gerson [1981] 1 All ER 257, 265, per Bristow J.