I was interested to see the recent NSW decision in Hollier v Sutcliffe [2010] NSWSC 279, delivered on 23 April 2010.  

The case concerned alleged side-effects following insertion of an Implanon device in October 2006.

Some years ago, there was a spate of litigation associated with this contraceptive device, primarily related to failures of insertion of the device resulting in unwanted pregnancies.  I am still involved in 1 such case proceeding through the courts.

In this case, the Plaintiff claimed that following insertion she had developed a severe reaction to such device, resulting in diffuse symptoms including leg soreness, pain in her upper limb into which the device was inserted and pain to her armpit.  

Remarkably and a source of difficulty for the Plaintiff at trial, it was clear that although the Plaintiff had seen the GP who had inserted the device, on the day following its insertion (and at that time both she and the GP had palpated the device), she had said nothing about the abnormal symptoms, she claimed to have experienced.  Her explanations why this was, were difficult to understand.

The device was removed with the assistance of a further general practitioner.  Despite initial improvement following this, the Plaintiff claimed that her condition then deteriorated.

Medical expert witnesses gave concurrent evidence ("hot tubbed" as it is known), that if the procedure occurred as the GP alleged, this was appropriate.  On the other hand, if the procedure had been performed as the Plaintiff claimed, involving her forcefully pushing upon the obturator, then this was not appropriate technique. 

In other words, the outcome as to breach of duty depended upon whether the patient or doctor’s account of the initial procedure was accepted.

As may have been guessed given the above comments, the trial judge was not persuaded to accept the Plaintiff’s evidence.  He found ‘the evidence of the Defendant was consistent within itself and consistent with objective independent evidence.  On the other hand, the evidence of the Plaintiff was both internally and externally inconsistent in a number of respects." [115]

Apart from the issue with her explanation for not expressly mentioning her symptoms full extent when seeing the Defendant GP on the day following insertion, as not infrequently occurs, the Plaintiff had problems because of divergence in her account of events provided to subsequent clinicians [118].  This is a point always worthy of careful consideration – it is an obvious line of attack by a defendant in cross-examination.