Case Study: Failed Implanon

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The patient was a multiparous married woman who attended upon the doctor, a MIPS member, for an Implanon implant. This was “inserted” during the normal window of the new cycle, as per the manufacturer’s specifications.

The patient later complained of “feeling pregnant”. The pregnancy was confirmed by beta HCG testing, and an ultrasound examination quickly identified that the Implanon rod was not present in the upper arm.

This was the doctor's first Implanon insertion after completing the training. As to why the implant was not found in situ remains a mystery. The doctor was adamant that the procedure was carried out as specified in the literature and in accordance with the recent training provided.

The patient brought an action against the doctor for “wrongful life”.  She and her husband sought over $250,000 in damages for the costs of rearing a child that was unplanned. 

The patient had seven other children. All lived at home, were well cared for and were being educated at a local government school. 

The expert evidence gathered by MIPS indicated that the impact of an eighth child in such an environment was not as financially significant. A larger house was already required. A vehicle to transport a larger family was already required. Hand-me-down issues opposed to ab initio purchases were more likely.

The patient was intractable and on the available evidence, MIPS felt the case on quantum was defensible. The case ran to verdict in the NSW Supreme Court.

The Trial Judge found on the balance of probabilities that the Implanon rod was not inserted at the time, and that there was a breach of the doctor’s statutory duty of care. Evidence adduced at trial also revealed that (some) three months prior to Trial, the patient has taken into her care a sister’s child. It was apparent to the Trial Judge that this was a caring, large family that was adequately able to cope with the additional child.

The Judge awarded a modest sum for the pain and suffering associated with the additional pregnancy, and a further, modest sum associated with costs of educating the child at a similar standard to that of his siblings.

MIPS had made an Offer of Compromise, and formally lodged this with the Court. It amounted to less than half of what the patient was asking in pre trial damages. Offers of Compromise are utilised to provide protection on the issue of costs, and provide sanctions for such costs when a verdict fails to achieve what has been offered.

In this case, the verdict failed to exceed MIPS’ Offer of Compromise. MIPS petitioned the Court for all costs incurred from the date that the Offer of Compromise was lodged.

The Trial Judge has discretion in this regard and unfortunately applied it in this case, not granting the Order for costs. Albeit losing the legal argument on the point of costs, the matter was a victory on the issue of damages, and reinforces MIPS values of only settling where the quantum is fair, reasonable and indicated on the evidence.