Health Law Insight – failed sterilization procedure


In Dhupar v. Lee [2022] NSWCA 15, a doctor was held responsible for the birth of a healthy baby following a failed sterilization procedure.


On August 26, 2014, the Appellant, Dr. Nita Dhupar, Obstetrician and Gynecologist, performed a laparoscopic tubal ligation on the Respondent, Ms. Jodie Lee. The surgery involved using ‘Filshie clips’ to clamp the fallopian tubes, with the aim of providing permanent contraception. Approximately nine months after undergoing the operation, the respondent became pregnant.

Ms Lee later sued Dr Dhupar for malpractice, alleging that the doctor had failed to properly apply the Filshie clips or inspect whether they had been properly applied. The claim was successful at the first hearing in the NSW District Court and Ms Lee was awarded damages of $408,700.00 plus costs. Dr Dhupar appealed the decision to the NSW Court of Appeal, both on liability and damages.

The call

The appellant advanced a total of twenty grounds of appeal. The substantive grounds against liability attacked the trial judge’s reasoning underlying the conclusion that, more likely than not, the pregnancy was attributable to Dr. Dhupar’s departure from good professional practice in the Filshie Clips app. It was therefore in dispute whether the failure of the procedure was due to the negligent insertion of the Filshie clip by Dr. Dhupar, or simply the result of an unrelated event.

The main points of contention were around potential explanations for how Ms Lee could have gotten pregnant after the procedure; the proceedings report by Dr. Dhupar; the appearance of the left clip on the intraoperative photographs; discovered during caesarean section and salpingectomy; and the appearance of the clip on the HSG.

While each of these individual issues were important issues for the Court to consider, it was ultimately held that the resolution of the paramount issue – that is, whether, more likely than not, the clip was not properly closed – depended on the mutually supportive effect of all the circumstances, not one or more of them taken in isolation.

This, however, is subject to exception – where an assumption which might explain the circumstances appears inconsistent with an irrefutable fact, that assumption may be excluded. It was therefore necessary for the Court to examine in depth each of the above questions.

There was no doubt that pregnancy could occur after tubal ligation, without neglect. The Court considered the leading literature, which discussed possible circumstances in which tubal ligation may fail. Nevertheless, the majority of sterilization failures occurring within nine months of the procedure have been confirmed to be attributable to operator error.

Dr. Dhupar said that, in line with her usual practice, after applying Filshie’s clips, she inspected the tube and checked that the clips were locked. She also testified that at the cesarean she observed that the left Filshie staple was involved in adhesions on the left fallopian tube. However, Dr. Dhupar’s limited recollection of the procedure, combined with the fact that the operating surgeon could not identify the left clip during the salpingectomy, undermined the proposition that Dr. Dhupar followed his usual practice.

Intraoperative photographs of Filshie’s clip application, as well as hysterosalpingogram (HSG) images, did not conclusively show whether the left clip was open or closed. These images were nevertheless able to confirm that the clip had been placed incorrectly and in a way that would increase the chances of an incomplete closure. Likewise, the images showed no ongoing fistula or recanalization.


Using the evidence before the trial judge, the Court of Appeal was unable to conclusively identify any other potential explanation for pregnancy after tubal ligation.

It was in these circumstances that the Court of Appeal unanimously concluded that the trial judge was correct in concluding that, on a balance of probabilities, Ms. Lee’s pregnancy was attributable to an error on the part of the negligent operator. It was more likely than not that Dr. Dhupar misapplied the clip (as demonstrated in the intraoperative photographs), failed to fully close and lock the clip (an inference from the circumstances), and/or that he had not properly checked that the left clip was completely closed and locked (because such a check would have revealed that it was not). Dr. Dhupar’s appeal was therefore dismissed.


This question highlights the persuasiveness of a logical circumstantial case where the respondent’s alternative explanations for the outcome are highly unlikely.


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