Relying on his clinical notes and the absence of a signed consent form, the Pietermaritzburg High Court has rejected a R14m claim against Dr Kesavan Dhavaraj for a failed tubal ligation.
The Pietermaritzburg couple accused the obstetrician of not sterilising the mother after the birth of their second child, reports The Times. Judge Piet Koen ruled Dr Kesavan Dhavaraj’s version that the couple had not signed a consent form for the procedure – and his notes that recorded that he had told the wife she must come back to him about having the procedure done –could not be gainsaid.
However, in light of the fact that the specialist actually claimed for the procedure from their medical aid, which he later claimed was an administrative mistake, the report says the judge ordered that each party pay their own legal costs.
The couple, who cannot be named to protect the identity of their children, claimed for constructing an additional room at their home for their daughter, maintenance of her and the “pain and shock” at falling pregnant.
The report says the couple’s second child was born at St Anne’s Hospital by caesarian section on February 2011. They said at a prior consultation, they had discussed a tubal ligation (TL) with Dhavaraj and assumed it had been done straight after the birth. In fact, they claimed, there was so much joy in the operating theatre after the birth of their son and the doctor had uttered words to the effect that he would not be seeing them again. But a few months later, when she took her baby to another doctor and mentioned she was not feeling well, she discovered she was pregnant with her third child, a girl who eventually born January 2012.
According to the report, the couple said they had specifically told Dhavaraj before the birth of their son that they did not want to have any more children. “He counselled us on the various methods of contraception and, in particular, the possibility of a tubal ligation.”
But the doctor said the couple was “undecided”. “It was agreed that they would consider their position. I was at no stage informed of the decision and the relevant forms were not signed.”
Judge Koen is quoted in the report as saying the two versions were “mutually destructive” and the couple could only succeed in their claim if the court accepted on a preponderance of possibilities that their version was true. Crucial, he said, was the lack of any signed consent and the hospital records did not reflect a “TL” procedure.
However, on his billing sheet, the doctor had recorded the procedure and the code that he had done in preparation of the consent. He testified that it was only during consultations with his lawyers ahead of the trial that he discovered the claim had been submitted and immediately took steps to have the amount reversed.
The judge said: “The raising of that fee with medical aid and it being paid would have obviously reinforced their belief that there was an agreement that the TL would be done.” But, the report says, this flew in the face of the doctor’s clinic notes, which recorded he had advised her the TL had not been performed on that day and that she was to come back in six weeks to discuss it further.
“Their claim fails in the absence of proof that consent was actually come to or was brought to his attention.
“They maintain that they signed a form and gave it to a member of his staff. But the hospital records show no such consent.
“Their evidence is dependent on personal recollection more than eight years later. As against that are the notes of the specialist, which have not been impeached and which cannot simply be ignored.”
See also:
[link url="https://www.medicalbrief.co.za/archives/claim-gynaecologist-tubal-litigation-billed-not-performed/"]Claim against gynaecologist for tubal ligation billed but not performed[/link]
[link url="https://select.timeslive.co.za/news/2019-03-12-couple-falls-pregnant-sues-obstetrician-for-r14m-and-loses/"]The Times report[/link]