unsuccessful claim for allegedly failing to warn a patient of the risk of
pregnancy after an endometrial ablation, the Court of Appeal unanimously
dismissed the patient’s appeal with costs ordered after she failed in her claim
against Associate Professor Alan Lam in the Supreme Court of NSW in 2014.
A/Prof Lam reflects on the case and how he prepared for the trial, and shares
his key lessons for members.
In late 2004, A/Prof Lam,
former President of the Australasian Gynaecological Endoscopy and Surgical
Society, performed an endometrial ablation on Lisa Neville to treat severe
Ms Neville fell pregnant in December 2005 after undergoing
the endometrial ablation because she was allegedly under the misapprehension
that it was not possible for her to fall pregnant and therefore she did not use
contraception or undergo tubal ligation.
She gave birth to a boy with
what the court considered “significant” disabilities in August 2006.
Neville alleged that A/Prof Lam was under a duty to advise her that following
endometrial ablation there remained a risk of conception, albeit unlikely. As a
result, she sought damages associated with the pregnancy, including the
additional costs of raising her disabled child.
Defending the lawsuit
the “right thing”
A/Prof Lam said he was “totally surprised” when Ms
Neville filed the claim and experienced a gamut of emotions.
it was imperative to do the “right thing” to fight the case on behalf of the
profession and to defend the standard of care he has always espoused and
believed was delivered to Ms Neville.
“One would rather not have to go
through it, but one needs to go through it and I chose to once I spoke to
Avant,” he said.
Emotional roller coaster
litigation process as an emotional roller coaster ride, A/Prof Lam was
“While the process seems very longwinded, arduous
and traumatic, in fact, justice prevails,” he said.
“There were times
when I felt angry or down that this was happening, at times I felt elated that
finally I would get an opportunity to answer the questions that they put forward
and there were times that I accepted it - that this is perhaps the reality of
While all doctors deal with the impact of a claim against them
differently, A/Prof Lam didn’t feel the need to turn to friends or colleagues
during the process due to the ample support he received from Avant and his wife
of 25 years, Deanne. He also let off steam playing golf and tennis. “It was a
journey that I felt I could ‘walk alone’ shall we say, with the guidance of
Avant,” he said.
Journal articles prove important
A/Prof Lam authored in 1992 also proved important to the case. These included an
article published in the Australian and New Zealand Journal of Obstetrics and
Gynaecology which advised that following endometrial ablation “women are
advised to either continue with a safe method of contraception or to consider
simultaneous laparoscopic tubal sterilization.”
“The article specifically
raised issues that funnily enough many years later came to bear significantly
upon my practice as well as the outcome of the case,” A/Prof Lam said.
“The words were very much a reflection of the caution that I believe we,
gynaecologists who consider offering this procedure, should take to ensure that
our patients are fully informed of the risks and benefits of that technique.”
His Honour Justice Beech-Jones in 2014 found
that after considering the contemporaneous evidence and “apparent logic of
events,” he was satisfied that A/Prof Lam gave Ms Neville the appropriate advice
at a consultation in October 2004.
His Honour said Ms Neville “failed to
discharge the onus she bore of proving that A/Prof Lam did not provide the
advice that she alleges he was obliged to.”
The court ultimately
dismissed the claim against A/Prof Lam.
Lessons for members
A/Prof Lam emphasises to members the importance of taking and documenting
comprehensive medical notes, and providing information pamphlets and diagrams to
patients and documenting these in the patient’s medical notes.
often happen some years after the event and the only records that we have to go
on are our medical records, so I can’t emphasise how crucial medical records
are,” he said.
Since the case, he has also developed an informed
consent form which patients are asked to review and sign before any
“We use this as a checklist to ensure that the information
that we provide in order to gain informed consent is as thorough and complete
with every patient as I would like to see,” he said.
“Not only does the
doctor have the chance to review the steps that he or she should ideally be
taking, but it also gives the patients a reality check and an opportunity to ask
any remaining questions before undergoing the procedure.”
Since the case,
A/Prof Lam has joined Avant’s Medical Experts Committee – NSW Panel of Experts
to share his personal experience with members.
“I’ve gained a much
greater insight into the level of professionalism of Avant as an organisation
and I’ve gained a lot of respect for the type of work that Avant provides and
come to appreciate how important it is for its members,” he said.
to support resources
Members who are dealing with the stress of a claim
or complaint need different types of support. Doctors can access a range of
resources including Avant’s
Health and Wellbeing website which offers tailored information to maintain
your physical, mental and financial health. Avant’s Personal Support Program on
1300 360 364 also provides a range of support options for members who are
suffering health issues, including a confidential counselling service.
For more information on informed consent, view Avant’s
Risk IQ resources:
Avant’s Risk IQ factsheet: Consent
in difficult situations or click here
to watch our short five minute video on gaining consent and material risk with
Jo Montgomery, Senior Risk Manager at Avant.
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