Implanon claim dismissed against doctor

3 April 2012

Phil Gleeson, Perth

Contraception is one of those things you want to get right - and so is giving evidence.

Implanon is a sub-dermal contraceptive implant introduced to Australia in May 2001. It was heralded as one of the safest and easiest ways to get contraception right. Unfortunately for its manufacturers, the 18 months following Implanon's introduction to Australia were associated with an unprecedented number of adverse incident reports to medical indemnity insurers which included almost 100 unintended pregnancies. A proportion of the unintended pregnancies resulted, strangely, from failure to recognise that the implant had not been inserted at all.

Maurice Blackburn's Anna Walsh ran the first Implanon case against a doctor in New South Wales in 2004. In that case, it was alleged that in 2001 the plaintiff's GP failed to insert the Implanon rod into her arm at all. Following the alleged insertion, the plaintiff was concerned that she could not feel the rod in her arm and raised her concerns with the doctor. She was assured that everything was fine. Seven months after this visit, the plaintiff fell pregnant with her fifth child. The plaintiff underwent an ultrasound and hormone tests which were consistent with no rod ever having been inserted into her arm. The doctor offered no expert evidence in his defence at the trial and was ultimately found to be negligent. The plaintiff was awarded almost $150,000 for the pain and suffering of going through a fifth pregnancy and for the costs of raising her child.

Recent legal action

The most recent Australian case focusing on Implanon was in the Supreme Court of New South Wales for Samantha Hollier against General Practitioner Rachel Sutcliffe. Ms Hollier claimed that Dr Sutcliffe had incorrectly inserted the implant on 16 October 2006. Ms Hollier claimed that as a consequence of the incorrect insertion, she had developed a severe reaction to the device including leg soreness and unremitting pain in the arm into which the device had been inserted.

In determining whether fault should rest with the doctor, Justice Hulme was required to balance the evidence provided by Dr Sutcliffe against the evidence given by Ms Hollier. Ms Hollier's case was that the Dr Sutcliffe had used a poor insertion technique, forcefully pushing upon the obturator. Dr Sutcliffe gave evidence that she had adopted a competent professional practice technique.

Justice Hulme found that Ms Hollier's evidence had been internally and externally inconsistent, while Dr Sutcliffe presented as a most careful witness who was impressive in her recollection of detail. Justice Hulme was critical of inconsistencies in Ms Hollier's testimony when she was recounting the events immediately after her consultation with Dr Sutcliffe as well as inconsistencies in the history she had provided to authors of medical reports tendered in evidence. Without Justice Hulme's confidence in the quality of her testimony, it was not surprising that her claim against Dr Sutcliffe was dismissed and Ms Hollier was ordered to pay costs.