Couple awarded $50,000 in accidental pregnancy


Urologist negligent in aftercare of vasectomy patient, Ontario judge rules


From Tuesday's Globe and Mail

September 9, 2008 at 3:57 AM EDT

Six months after being medically assured that his vasectomy was a complete success, a Whitby, Ont., human-relations manager - Gary Philion - was horrified to learn that his wife was pregnant.

The 44-year-old man received a second shock when his urologist, Steven Smith, responded to Mr. Philion's panicky phone call with a question: "How many extramarital affairs has your wife had?"

In a decision that bristled with indignation over Dr. Smith's negligent aftercare, an Ontario Superior Court judge has made a rare award of about $50,000 to Mr. Philion and his wife, Kimberley.

Mr. Justice A. W. Bryant concluded that Dr. Smith erred by not cautioning his patient that a second, post-vasectomy sperm test was necessary to reduce the risk of an accidental pregnancy.

Judge Bryant said the 2001 incident disrupted the Philions' careful life planning. He said they were forced to purchase a larger home to accommodate their third child, a daughter who is "healthy, happy and loved."

Providing the information that would have prevented Ms. Philion's accidental pregnancy "was a matter of common sense," Judge Bryant said.

"Dr. Smith made no attempt to speak with Mr. Philion to explain his interpretation of the laboratory analysis or to inform him how the pregnancy occurred - except to suggest that his spouse was having sexual affairs."

Judge Bryant was also critical of an expert urologist who testified for the defendant, saying that the man quibbled to avoid answering questions, and "assumed the role of an advocate for Dr. Smith."

David Leonard, a lawyer for Dr. Smith, said in an interview that the decision is "disappointing," since no number of sperm tests can truly remove the possibility that severed sperm ducts could spontaneously reconnect.

"The first test confirmed that surgery was successful," Mr. Leonard said. "The tubes were snipped and the flow of sperm was stopped. The issue became recantilization, where the two ends of the tube reconnect spontaneously."

Mr. Leonard said that recantilization can occur at any time, even years after a vasectomy.

"The incident of this occurring is extremely remote," he said. "I think it was the first time this had occurred in Dr. Smith's career, and he has done over 10,000 vasectomies."

Mr. Philion had his vasectomy on Aug. 13, 2001. He had a sperm test six weeks later, and was informed by Dr. Smith's receptionist on Oct. 24 that the test showed a sperm count of zero. About four weeks later, Ms. Philion conceived.

Mr. Philion's lawyer, Vusumzi Msi, conceded at trial that the procedure was competently performed. The sole legal issue revolved around whether Mr. Philion had been given sufficient information afterward.

Judge Bryant was highly critical of Dr. Smith's cursory notes about the Philion case, saying: "I find that Dr. Smith's records are inaccurate, misleading and lack relevant patient information.

"These reports - and the July 9, 2001, entry on the chart - do not contain any meaningful information about his management of the post-vasectomy risk of fertility or pregnancy," he said.

Mr. Leonard said he does not believe that Judge Bryant went as far as to say that doctors cannot give their patients "a green light" to engage in unprotected sex until they have undergone two negative sperm tests.

"The issue is, when do you time the [second] test properly?" Mr. Leonard added. "The evidence here was that the recantilization could easily have taken place six months later, so a second test wouldn't have stopped the pregnancy."


Read the decision


Commentary in the Globe and Mail by the Ottawa Men's Centre

Ottawa Mens, from Ottawa, Canada wrote: Every day, some women tell men, that "they can't get pregnant", "I'm safe" and deliberately LIE to find themselves a "sperm donor" and a "child support payor".
They choose their victims by genetics, present and future income.

The moral of this story is if you are male and dont' wish to be an unwitting sperm donor, listen very carefully when a new date asks lots of interesting questions.

Sperm thieves have a profile, two common professions are doctors and especially recently graduated female lawyers.

If you happen to earn a high income, single with good genetics watch out. So, if can't say no, use a condom, tie a knot in it and take it home.

Ottawa Mens, from Ottawa, Canada) wrote: Justice Bryant didn't need any energy drinks to stay awake in this trial, nothing like the subject of shooting sperm to keep the court awake.

Dr. Smith's notes just failed to have all the standard 'C.O.A.' documentation, like the need for 15 odd ejaculations and a second sperm test.

The decision does raise some interesting points.
The decision says that among the agreed facts by the parties was that Mr. Philion is the biological father of the child, yet there is nothing mentioned that a DNA test was done.

Lots of men have end up shooting live rounds when they are firing blanks, it happens a lot. One wonders why Dr. Smith did not get the patient to initial all of their responsibilities and his instructions.

The second interesting fact that Doctors know they can get sued and the primary defense is to have the patient's signature acknowledging that they have been appropriately informed.

Dr. Smith did not help matters by shooting his mouth off suggesting that his wife had had other affairs.

Negligence and duty to inform are obvious, theft of sperm is another almighty problem that happens every day and is ignored by the courts without any recourse, in fact the victims end up paying, often in over six figures for decades until the 2nd phd.