Is the gynaecologist responsible?

Is the gynaecologist responsible?

"A couple of friends of mine have just had their fourth child at nearly 50 years of age, even though the wife's gynaecologist had assured her that she could no longer become pregnant. That's not the problem, they're covering this child with love, but they find themselves in great financial difficulty as a result of this event. Isn't the doctor who did his job badly supposed to take responsibility in such a case?

Blaise, Geneva

The question of the financial loss resulting from the birth of an unwanted child has been dealt with extensively in doctrine and case law in connection with medical errors during operations designed to prevent pregnancy.

While the cantonal courts have long denied, for obvious ethical reasons, that the birth of an unwanted child can constitute "damage", the Federal Court has recently accepted that a woman who instructed her doctor to perform a sterilisation by tubal ligation and then became pregnant as a result of an error in the performance of this medical procedure could claim compensation.

The Supreme Court found that the parents' legal obligation to maintain the child constituted a debt against their assets. It is not the child itself, therefore, but this obligation to maintain, in other words the loss of assets it represents, that constitutes damage in the legal sense of the term.

However, in order for the surgeon or gynaecologist to be held liable for giving his patient incorrect advice, his conduct must be the natural and appropriate cause of the damage suffered by the parents of the unexpectedly born child. Thus, when the injured party adopts conduct that proves to be disadvantageous for him, liability for the damage can only be attributed to a third party insofar as the damage is causally related to the legitimate expectations of the injured party that have been disappointed.

In this case, therefore, it will be necessary to examine the extent to which the woman's gynaecologist was really able to assure her that she could no longer procreate without undergoing definitive medical intervention. In addition, the doctor could object that the damage could have occurred regardless of this inaccurate information and the behaviour that followed, because even contraceptives are never 100% safe.

As you can see, the search for evidence in such a trial is likely to be quite trying for your friends if the doctor does not spontaneously accept his error.