24 Dec 2008

Court ruling may deter sterilisations

6:11 am on 24 December 2008

A Court of Appeal ruling that unwanted pregnancies do not qualify for ACC compensation may discourage gynaecologists from doing sterilisations in future.

That is the view of ACC law expert John Miller, after the court ruled that a woman who became pregnant despite a tubal ligation cannot be covered by ACC.

In the court's view, the unwanted pregnancy does not fall under the definition of personal injury. "If a medical misadventure had not resulted in an injury there would not be cover," the court said, "and that is in effect what occurs in the case of a pregnancy, albeit unwanted."

Earlier court rulings had stated that the woman was entitled to cover, but ACC appealed to the higher court.

Mr Miller says the new ruling may open the floodgates to claims for damages against doctors if sterilisation operations fail to prevent pregnancy. Faced with the risk of litigation, the doctors are less likely to want to do the operations in the first place.

He believes this is the only area of medicine in New Zealand where doctors are not now fully protected by ACC.

Fight may go on

The woman's lawyer says she is reluctant to give up her fight for compensation and may yet carry it further.

If the case goes to the Supreme Court, lawyer Alex Hope says it will focus on the minority judgment of Justice William Young, who considers that pregnancy qualifies as an injury under the Act.

Mr Hope says his client, who now lives in Australia, is unhappy with the latest ruling.