Failed sterilization

Question 1

• failed sterilisation of the plaintiff
• gave birth to two children
• already had 5 children
  1) physical consequences of the failure of the operation
  2) recoupment of the cost of rearing the two children
• first time in Irish law if entitlement to recover damages for the cost of rearing a healthy child born subsequent to a failed sterilisation
• awarded damages for failing to tell the patient that a tubal ligation had failed
  
  • The defendant conceded that in the event of a finding of negligence the plaintiff is entitled to damages for the pain suffering and inconvenience of pregnancy and childbirth and for having to have the sterilisation repeated.
    -no payment to raise healthy child
    
    • benefits of a child outway the costs - floodgates concern
    • open question if reward pain and suffering (in this case conceded) but the cost of children rejected

Answer 1

Byrne v Ryan [2007] IEHC 207, [2009] 4 IR 542

Question 2

• First case in England to decide on the issue of suing for the costs of a pregnancy and of raising a child after a negligent sterilisation procedure
• decided they did not want any more children - failed vasectomy - became pregnant with a healthy baby girl
• It would not be fair, just and reasonable to allow a claim for the costs of raising the child
  
  • considerations of distributive justice indicated that the law did not permit the parents of a healthy but unwanted child to claim the cost of its upbringing
  • policy consideration
• damages for the pain, suffering and inconvenience of pregnancy and childbirth, and to special damages for extra medical expenses, clothing and associated loss of earnings
• a conventional sum was allowed for loss of parental autonomy
  
  • very low sum - for being denied an important aspect of their personal autonomy

Answer 2

McFarlane v Tayside Area Health Board [2000] 2 AC 59

Question 3

• Mother had a visual disability. Gave birth to a healthy child after a negligently performed sterilisation operation.
• She claimed the cost of rearing the child.
• Held: the policy considerations which prevented recovery of the costs of a child’s upbringing in McFarlane still held good - not entitled to recover the extra costs of raising her child which were attributable to her disability.
• conventional award of GBP 15,000, reflecting the parents’ loss of opportunity to limit their family and live life the way it had been planned, irrespective of the individual circumstances of the parents
  
  • The basis of the conventional award is unclear -acknowledgment of loss of autonomy
  • departed from McFarlane in 3 ways: 1) award was to be on top of an award to the mother for the pregnancy and birth, 2) the sum was to be the same in all cases, 3) sum was to be fixed at £15,000, three times the amount

Answer 3

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309

Question 4

availability of damagesin the UKfor a child born subsequent to a failed sterilisation who is born with a disability (as opposed to born healthy)
- parents might be entitled to an award of compensation for the extra expenses associated with bringing up a child with a significant disability, since the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s negligence

Answer 4

Parkinson v St James & Seacroft University Hospital NHS Trust [2001] EWCA Civ 530