A gynaecologist has been cleared of liability for not sterilising one of his patients, which resulted in her having an unplanned child. 

Celestie Row and her husband, Wellington, were claiming about R3 million damages from Dr Kesavan Dhavaraj following the birth of their third child.

Their attorney, Silvia da Silva, said that her clients were “exceptionally disappointed” with the ruling. “While we respect the judgment, we have been instructed to appeal,” she said.

In a reserved judgment handed down this week in the Pietermaritzburg high court, Judge Piet Koen said the issue in this case was whether the doctor had contractually bound himself to perform a tubular ligation on Celestie.

He found this was not the case.

The judge ordered that the parties pay their own costs.

He reasoned that the couple’s persistence in their claim was reasonable because they were armed with proof that their medical aid paid the doctor for the procedure. “Why charge for such a procedure if it was not done? Otherwise it could be a fraudulent claim. In the ordinary course this would indeed be a strong probability factor against the defendant [doctor] unless explained satisfactorily,” he said.

The doctor explained that his administrative staff made an error, said the judge. From the evidence, it appeared that the doctor’s administrative claims process was fraught with problems, found the judge.

“Either claims are made for work not done, which would be fraud by either the defendant [the doctor], or an employee for personal gain, or the administrative process is very unreliable.

“The primary inference would of course be that the work claimed for had in fact been done and could not now be denied, which no doubt would have weighed heavily with the plaintiffs’ [couple’s] legal advisors in having advised them to pursue the action,” he said

The judge said the couple’s case was that the doctor did not perform the ligation on February 15, 2011.

They claimed that eight days earlier, they concluded a partly written and oral agreement with the doctor at his surgery for him to perform the procedure when he delivered her baby by caesarean section.

They claimed that he told them the ligation surgery was successful and he did not administer any birth control to the woman.

The doctor, on the other hand, denied there was an agreement to perform the procedure after the birth, said Judge Koen.

The doctor said the couple were undecided on the procedure and said they would revert to him but they did not.

He said that the day after the birth, he prescribed an oral contraceptive for Celestie and told her to return six weeks later if she wanted to undergo the procedure. No such appointment was kept, maintained Dhavaraj.

The judge said it was not disputed that the hospital did not receive a consent form for the sterilisation procedure. The question for him to decide was whether there was still an agreement between the parties to perform the procedure.

The judge said the couple did not prove there “was a complete meeting of the minds” regarding every aspect of the negotiations.

The doctor did not get back to The Witness with comment.