Claim against gynaecologist for tubal ligation billed but not performed

Organisation: Position: Deadline Date: Location:
Dhavraj

Dr Kesevan Dhavraj

A KwaZulu-Natal gynaecologist is being sued for damages after a couple conceived after a requested tubal ligation was not performed, although the doctor billed the medical scheme for carrying out the procedure.

The Witness reports that Dr Kesavan Dhavaraj is being sued for close on R3m by Celestie Row and her husband, Wellington, after she unsuspectedly conceived a baby believing her gynae had performed the tubal ligation she had requested.

Dhavaraj, however, is fighting back, saying that Row did not sign the required consent form, which was why he did not perform the procedure. While he admits a bill was submitted to medical aid by his practice indicating that he carried out the procedure, he says this was an error that was only picked up after he received the court summons.

The case came before Pietermaritzburg High Court Judge Piet Koen, and he reserved judgment.

The couple’s attorney, Silvia da Silva, said her clients were pleased that the matter has finally been heard.

The report says the court heard that Row was pregnant with her second child and told the doctor that when he does a C-section, he must also do a tubal ligation because the couple did not want to have any more children. They also could not afford to support another child. Row claims that she signed the consent form and left it with the secretaries at Dhavaraj’s practice. But one of them says this could not have happened as all patients are told to take the form with them to hospital.

On 15 February, 2011, Row’s second child was born and she thought that the procedure had been done. It has been agreed between the parties involved that it in fact was never done.

The report says three months afterwards, Row found out she was pregnant again. She and her husband agreed not to give the child up for adoption and did not want to abort the baby because of their religious beliefs.

Advocate Venesen Naidoo, SC, argued for the couple that there was an agreement in place between the doctor and his clients, but the doctor did not abide by it. He said that the doctor’s conduct showed he was aware of the agreement. For instance, after Row’s second child was born, he told her that he would not be seeing her again. She took this to mean she will not be having any more children. He said the court can infer that by billing the medical aid he knew that there was an agreement in place for him to do the tubal ligation.

The judge remarked that the doctor’s billing did not appear to be up to standard because he had also billed Row for a consultation that did not happen.

The report says advocate Altus Janse van Rensburg, for the doctor, argued that there was no agreement concluded regarding the tubal ligation. Dhavaraj claims that his only instruction was that he would deliver the child by C-section and perform no other procedure. During the consultation prior to the birth, Row was uncertain about the procedure and said she would tell him if she decided to do it.

Dhavaraj also said that on the day the Rows’ second child was born, he had prescribed oral contraceptives for her and nine days later he advised her to return to him in six weeks’ time for a tubal ligation. She denies these allegations.

The report says the claim is for the cost to construct an additional room for the child, maintenance until the child is self-supporting and general damages.

The Witness report

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