Post 21 Legal problems after vasectomy - and a late reprieve!

Don's heart sank when he saw the letter sitting on his desk.  The envelope was of high quality, it bore a first class stamp and had a London postmark.   In his experience such letters rarely brought good news.  With great reluctance he opened the envelope.   The note paper was thick and expensive, certainly not the sort used in the health service!   He read the address on the top of the page. It caused a shiver to pass down his back.

                          Williams, Cummings and Lane.  solicitors

                                     25 Chancery Lane


Along the bottom of the page was a tag line in smaller type

                                                            Specialists in medical negligence

 With an increasing sense of foreboding Don read the letter         
Dear Mr Fraser
Re Frederick Makin
We write to inform you that we act on behalf of the above named client upon whom you undertook a vasectomy operation. This operation was undertaken in a negligent fashion as a result of which Mr Makin has fathered a child. Further details will be forwarded to you in due course. It is expected that the damages will be in the region of £90,000. 
Yours etc
Harvey Lane

Don’s first reaction was one of anger.   He had been a consultant for twenty years during which time he had devoted himself to his patients and to the health service.   How dare they accuse him of negligence?    He worked long hours; he was ‘on call’ for emergencies every third night and every third weekend; and he was regularly reprimanded by his wife for putting his patients before his  home life.

And how on earth did they arrive at the figure of £90,000?   To repeat the vasectomy operation, if indeed it had failed, couldn’t possibly justify such a sum in compensation.    And if Mr Makin - whoever he was - had the joy of a baby in the house, he damn well ought to be grateful.   Don and his wife had always wanted a family but had not been so fortunate.

Even as these thoughts raced through his head, he already had an idea as to the likely cause of the problem.   He was probably being sued not because the operation had failed, but because the patient hadn’t been warned that failure was a possibility. These were the early days of male sterilisation and a standard ‘consent for sterilisation’ form had yet to be produced.

Within a couple of days, a review of Frederick Makin’s medical records confirmed that there was indeed no written record that he had been warned the operation might fail and that he might father a child. 
Then, three weeks later a further letter from Williams Cummings and Lane arrived detailing their justification for the £90,000 claim. The inventory included everything from a pram when the child was a baby, to a bike as he grew up, and driving lessons when he reached the age of 17!!   Their reasoning was that had Mr and Mrs Makin known that the operation might fail, they wouldn’t have had it performed; they would have practised an alternative form of contraception.   But now they had another child, he was entitled to have the same benefits in his life as his older siblings.

Now considerably alarmed, Don rang his medical insurance company.   He was relieved to learn that not only would they support him with legal advice, they would also cover the damages should the case be lost.   Strangely however, though he was reassured that his own money was not at risk, he remained deeply hurt and angry by the accusation of negligence.   He regarded this as an unjustifiable stain on his reputation.

The question that particularly troubled him was the legal test upon which the court would make its judgement.   This was whether  giving a warning that the operation might fail was the accepted medical practice at the time the vasectomy was performed.    If it was, the case was lost!   Don thought that it was not usual to give such a warning but the medical insurance company were less sure.    A meeting was arranged for the matter to be discussed.

“The problem ,” the legal advisor began, “is that we are reasonably certain that an ‘out of court’ settlement could be reached at a figure of about £30,000.   The danger of course, is that if the matter is contested in court and we lose, then the damages will be the full £90,000, with costs to pay on top of that.”

Don argued that settling out of court too readily, simply encouraged others to follow suit and that in the long run, it was cheaper to contest the matter.   He said that if a few claimants lost their cases, received no compensation and had to pay costs, then there would be fewer spurious claims in the future.   The truth was that although he wouldn’t admit it, his pride was at stake; the accusation of his alleged ‘negligence’ still rankled.    Eventually, albeit with some reluctance, the insurance company backed down and a date for the court case was fixed.

As the day of the trial approached, Don became increasingly anxious and moody.   At home he was irritable and found difficulty sleeping.   At work he began to lose his concentration and his confidence.   He wondered how he would cope when cross examined by some silver tongued barrister under oath.   He spent long hours in the medical library researching the subject.   Certainly he found a number of instances where surgeons had reported vasectomy failures but at the time of Mr Makin's operation, no recognised professional body had formally recommended warning patients of this  complication.   It seemed to him that in the absence of such a recommendation, the outcome of the court case would be a matter of opinion.   It could go either way.    He realised that an out of court settlement now looked a better option and thought that perhaps he shouldn't have argued his point of view with the insurance company quite so forcibly.    He rang the insurers to tell them so.

“Too late now, I’m afraid,” came the reply.   “A date for the trial has been set, a judge has been appointed and briefed, and in any case, if we were to make an offer to the claimant now, it would certainly be refused.   They would recognise that we were conceding defeat.”

A couple of days later, as Don got more and more concerned, one of his pals, a surgeon in a neighbouring hospital, rang him.    He sounded cheerful.

“I’ve got some interesting news for you,” he said.   “I operated today on an old patient of yours, a chap called Makin.    He told me that he was making a claim against you.   Obviously I pricked up my ears and probed for more details.    I thought you would be interested to know that the operation I was doing was a repeat vasectomy.”

“So.....?” Don enquired, not understanding the significance of this news.

“Well, don’t you see?   His legal argument is that had he known his first vasectomy operation might fail, he would never have had it done. Well, from his own experience, he does now know the operation can fail, yet despite that, he’s had it repeated.    He’s undermined his own argument.    His case completely collapses.”

There was silence for a moment while Don considered this new information.

“Why so it does,” Don said as a huge smile of relief light up his face.  “I’ll phone the medical insurance company at once.   Thank you so much.”

Then he rang his wife and told her the good news.

“Well that’s a great relief,” she said.   “Now perhaps you’ll go back to being your old self again.”

Thought for the day    

If it it’s not written down, it didn’t happen.

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 Extract from doctor’s letter: Examination of genitalia reveals that he is circus sized.