Malpractice in Female Sterilization
In order to permanently prevent a woman from becoming pregnant, a physician may perform one of a number of sterilization procedures. Sterilization may be accomplished through the removal of the uterus, both ovaries, both fallopian tubes, or a closure of the fallopian tubes. A tubal closure is currently the most common procedure when the sole purpose of the procedure is to prevent pregnancy.As with any other surgical procedures, the performance of a sterilization operation can lead to a claim of medical malpractice. In fact, sterilization is the second most common area in which gynecologists and obstetricians are sued.One basis for a medical malpractice claim resulting from sterilization is the physician’s failure to obtain informed consent from the patient. In addition, the physician may be liable if the consent was not based on an adequate disclosure of the risks and alternatives to the procedure.
By far, the most common basis for sterilization-related medical malpractice claims is negligence resulting in a failed sterilization. Patients have also filed successful actions against physicians for negligence leading to internal injuries, such as injuries to the bowels and the urinary tract resulting from perforation and burns. These burns can occur only if the electrocautery comes into direct contact with the bowel, so it is a frequent area of potential malpractice claims.
Some courts have recognized the existence of a cause of action for failed sterilizations based on breach of contract or warranty, either express or implied, where there was evidence that the patient was told that the operation would prevent future pregnancies. However, in a case where a consent form signed by the patient included a clause stating that “this operation is intended to produce sterility, although this result is not being guaranteed,” a court failed to find a cause of action for breach of contract. Other courts have concluded that statements made by a physician concerning the seriousness of a sterility procedure and giving opinions as to its probable outcome did not constitute an express warranty as to the outcome of the procedure. They were only necessary and proper statements prior to the procedure. For the breach of contract theory to be applied, a physician must offer more than mere reassurance or opinion. He or she must make a promise.