The Failed Tubal Ligation: Bringing a Wrongful Birth Case to Trial
| Publication year | 1988 |
| Pages | 849 |
| Citation | Vol. 17 No. 5 Pg. 849 |
1988, May, Pg. 849. The Failed Tubal Ligation: Bringing A Wrongful Birth Case to Trial
Some courts allow recovery of the costs of raising a healthy child born as a result of a negligent sterilization.(fn1) More allow recovery for raising a profoundly ill child where the risk of the child being born defective was known and, but for the physician's negligence, the mother would not have become pregnant or would have terminated the pregnancy.(fn2) Both of these types of cases have generally come under the rubric "wrongful birth."(fn3)
Many lawyers representing plaintiffs who have borne a healthy child after a failed sterilization assume that the major issue confronting them is assessment of damages because negligence is self-evident. On the contrary, the difficult part of such a case deals with liability. In most cases, pregnancy after sterilization does not necessarily mean negligence. Practitioners must know how to identify the actionable case.
This article explores the practical aspects of bringing to trial a wrongful birth case arising out of a failed tubal ligation, since negligence is not always as self-evident as many lawyers assume.
There are a number of female sterilization or tubal ligation techniques. In each, the objective is the same: to block the fallopian tubes in order to prevent sperm and egg from uniting.(fn4)
The most effective methods use a laparoscopy or a mini-laparotomy approach. A mini-laparotomy "allows the fallopian tubes to be cut, cut and tied, tied or clipped; while laparoscopy allows them to be coagulated, coagulated and cut, clipped or ringed."(fn5) Laparoscopy has a small advantage over mini-laparotomy because it is quicker and less painful, results in fewer complications and offers a better view of the pelvis.(fn6) According to studies reported in the medical literature, laparoscopy "can be performed easily and safely with the patient under local anesthesia."(fn7)
There are many techniques to occlude, destroy or interrupt the fallopian tubes, including clipping, ringing, suturing, cutting and burning.(fn8) All of these techniques may be implemented by either a mini-laparotomy or laparoscopy.
Laparoscopy, commonly known as the "belly-button operation," has become the most popular. Whether a physician coagulates, rings or uses another method, the basic procedure is similar. After making a small incision just beneath the navel and injecting carbon dioxide into the abdomen, the physician can telescopically see the structures in the abdominal cavity, including the fallopian tubes, through an eyepiece in the laparoscope. An instrument is then inserted through the incision either at the navel or just above the pubic bone, to grasp the tube and interrupt or "ligate" it.
The operating surgeon must first identify the tubes. Each tube may be thought of as having three parts: the distal or fimbriated end; the isthmus, which is the midportion; and the cornual end, which is the closest to the uterus. The surgeon must identify the fimbriated end first and then trace the tube to avoid grasping the wrong structure, such as the round ligament.
In the cauterization technique, the tubes are interrupted by burning a portion of each, often creating a gap in the tube. Ordinarily, it is recommended that the cornual end be coagulated "to ensure a full thickness destruction of the tube."(fn9) In the banding or ringing technique, a band or ring is placed around a knuckle of tube, thus occluding it.(fn10) These are the most common laparoscopic sterilization techniques, and they can be done on an outpatient basis. Another technique, salpingectomy, where a part of each fallopian tube is removed from the abdomen, requires hospitalization.
If a potential client says that she has had a child following a tubal ligation, to determine liability the client's fallopian tubes, as well as other structures in the abdomen, must be examined to learn the cause for the sterilization...
To continue reading
Request your trial