This judgement was an appeal from a decision delivered by the First Hall, Civil Court in January 2006. This case concerned a claim for damages by spouses X and Y in relation to a medical procedure carried out on X who was admitted to St Luke’s Hospital to give birth to her second child by Caesarian Section. X, after discussing the matter with her doctor, had signed a consent form authorising the medical team to carry out a procedure known as tubal ligation, i.e. to cut her fallopian tubes to prevent further conception. The defendant, under the supervision of the medical consultant Dr Donald Felice, allegedly carried out the procedure. However, a few months later, X found out that in spite of this procedure performed, she fell pregnant once again.

X and Y claimed that due to this, X would have to once again endure another traumatic Caesarian section operation as well as be exposed to the dangers of having two Caesarians in a short span of time. They further claimed that they could not afford to bring up another child since they were dependent on Y’s income, which amounted to the equivalent of the national minimum wage.

The plaintiffs therefore requested the court to find the defendants liable for damages suffered as a result of negligence and non-observance of regulations and to condemn the payment of damages in their favour.

The defendants, among other things, claimed that they should not have been sued and that the patient’s husband had no juridical interest in the dispute unlike his wife who actually underwent the operation in question.

The First Hall, Civil Court had held that the proper defendant was Dr Olga Avramov alone since she had conducted the disputed operation. Since the law fails to define the level of responsibility to be exercised by such doctors, the courts have consistently relied on the Civil Code provisions interpreted and adapted accordingly. The courts have concluded that the law subjects the profession to a level of responsibility expected to be exercised in the particular profession. The latter decision, apart from making reference to various learned authors, based itself on the Civil Code provisions on tort which essentially establish the principles that:

• Every person shall be liable for the damage which occurs through his fault;

• A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias;

• No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.

The First Hall, Civil Court also made reference to the UK judgement Hucks v. Cole (1968) wherein it was held that: “A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things sometimes went amiss in surgical operations and treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was liable when he fell below the standard of a reasonably competent practitioner in his field so much that his conduct might be deserving of censure or inexcusable.”

The court considered that with operations of this nature, there were rare cases when in spite of the medical procedure whereby the fallopian tubes were cut, conception was still possible. The plaintiffs alleged that the procedure was not carried out at all. However, a histology report proved otherwise.

The court held that medical negligence had to be proved. This case however, seemed to be a mere result of misfortune in that X was one in a million to fall pregnant despite the procedure. The only negligence that could be imputed on the defendant, according to the court, was the fact that X was not made aware of the possibility, albeit remote, of becoming pregnant after the operation. However, the court stated that it would be unjust to go as far as labeling such as professional negligence. Therefore, the First Hall, Civil Court ruled in favour of the defendants, rejecting the plaintiffs’ claims for damages.

The plaintiffs appealed requesting the Court of Appeal to revoke the First Hall’s decision and to find the defendants liable for damages.

The court made reference to a significant amount of case law, both local and foreign. One case in particular was the American case, McNeal v. United States of America (1982) which concerned the same facts as the case under discussion. Dr Richard Stock, an expert in the field, was quoted to have stated that, “even if a tubal ligation is properly performed, it is always possible for the ligation to fail so that the patient might conceive a child in the future.”

Regarding the issue as to whether X should have been informed of the remote chances of pregnancy following the operation, the Court of Appeal recognised that the generally-accepted medical practice is that a doctor is under no obligation to provide a patient with all the information relating to the medical procedure in question. The obligation to inform is limited to that information which according to medical practice, should indeed be given.

The court held that it did not seem to be an accepted medical practice for doctors conducting a tubal ligation, to inform their patients of the remote risk of conception. The procedure was carried out properly with the intended effect being that the couple would not have more children. The doctors could not be found liable for something that happened by chance, which was essentially out of their control.

For these reasons, the appeal was rejected and the decision of the First Hall, Civil Court confirmed.