The courts examine the nature of a treating team’s duty of care to a patient undergoing embryo transfer and the degree of responsibility borne by the consultant O and G.

In the recent case of G and M v Armellin¹, the ACT Supreme Court of Appeal considered a consultant’s duty of care to a patient in the context of in vitro fertilisation (IVF) treatment performed in a private fertility facility. The decision is interesting in regards to how the courts – both at the primary hearing and the appeal – evaluated the relevant professional responsibility owed by a consultant as compared to that of the rest of the treating clinical team.

Background

Ms G and Ms M first consulted Dr Robert Armellin on 17 December 2002 seeking help for Ms G to become pregnant. Initially, they sought to have her impregnated by artificial insemination using donor sperm. After three unsuccessful attempts using artificial insemination, they were enrolled in an IVF program. That program involved the assistance of the Canberra Fertility Centre (‘the Centre’).

In July 2004, Ms G gave birth to non-identical twin girls following successful IVF by Dr Armellin on 12 November 2003. Ms G and her partner Ms M claimed they only wished to have one child, that they told Dr Armellin this, and alleged the doctor was negligent in inserting two embryos instead of one during the IVF procedure. Ms G and Ms M sued Dr Armellin for damages including the cost of raising the second child. However, they did not sue the fertility clinic where the procedure took place and Dr Armellin did not join the clinic as a third party to the proceedings.

At the trial², Bennett J of the ACT Supreme Court found that Dr Armellin had not been negligent in the context of the Centre’s existent practice of determining the number of embryos to be implanted. Ms G and Ms M appealed against this decision. The ACT Court of Appeal found that Dr Armellin was ultimately responsible for the embryo transfer procedure and had breached his duty of care by failing to confirm the number of embryos for transfer with the Centre staff.

Dr Armellin sought leave to appeal to the High Court of Australia. High Court judge Heydon J noted that the Court of Appeal differed from the trial judge on one point – whether Dr Armellin was negligent in permitting more than one embryo to be transferred contrary to the wishes of Ms G. In dismissing³ Dr Armellin’s application for appeal, Heydon J found that the contest was a factual one, that no question of law meriting an appeal had been identified, and that the reasoning of the Court of Appeal had not been successfully attacked.

Recounting the facts

The following is a summary of the factual findings the Court of Appeal relied upon in reaching its decision.

At Ms G’s and Ms M’s consultation with Dr Armellin on 11 August 2003 the following occurred:

• Ms G told Dr Armellin that she did not want a multiple pregnancy.
• Dr Armellin told the couple there was a risk of multiple pregnancy and advised them of the rate of that risk in the event of the transfer of two embryos.
• Dr Armellin told the couple that the chances of successfully becoming pregnant diminished unless more than one embryo was transferred.
• Ms G and Dr Armellin discussed the possibility that one embryo could produce more than one child. Ms G accepted that risk but understood it to be a low risk.
• Ms G and Dr Armellin discussed the number of embryos to be transferred. Ms G told Dr Armellin that she would let him and the Centre know before the embryo transfer whether she wanted one or two embryos transferred. No decision was made at this consultation about that matter.

On 12 August 2003, Dr Armellin wrote to the couple’s referring practitioner about the consultation which occurred on the previous day. The letter said ‘…one or two embryos will be transferred…’ and then continued, ‘At this stage [G] is not sure as to how many embryos she wishes to be transferred but she will let us know before an embryo transfer…’ .

Ms G and Ms M attended the Centre on 11 September 2003. Ms G completed a form that day, concerning the IVF program at the Centre. Ms G filled in the form and signed a request for IVF or gamete intrafallopian transfer. A nurse at the Centre told Ms G and Ms M to indicate on the form that ‘up to two’ embryos were to be transferred and to let the Centre know any time up to the procedure as to how many they wanted transferred. The signed form referred to ‘embryo transfer of one to two embryos’.

On 10 November 2003, Ms G underwent a procedure to harvest eggs produced after the administration of hormone medication designed to stimulate the production of eggs. Six eggs were harvested. Five eggs were successfully fertilised with donor sperm. Before implantation there were only four healthy embryos available for implantation.

On 11 November 2003, a discussion occurred between Ms G and someone from the Centre about the number of available embryos. Ms G did not tell that person how many embryos she wanted transferred at that time.

Ms G was admitted to the John James Memorial Hospital, where the Centre was located, on 12 November 2003. Ms G and Ms M did not tell the Centre, nor were they asked by the Centre, how many embryos they wanted transferred. Ms G decided to have one embryo transferred after she arrived in the theatre at the hospital.

Immediately before the procedure and before Ms G was sedated, she told Dr Armellin that she only wanted one embryo transferred. Ms G was then placed under sedation. Prior to the procedure, Dr Armellin completed an operation record which said: ‘…embryo transfer one embryo under sedation’. At that time, Dr Armellin believed that one embryo was to be delivered by the embryologist for transfer, but accepts that two were actually transferred.

Neither the embryologist, nor the Centre, had received notice from Dr Armellin of Ms G’s decision for only one embryo to be inserted. Dr Armellin believed that the number to be transferred had been organised between the couple and the Centre. While the embryologist inserted the embryos, Dr Armellin was responsible for the transfer procedure. The Centre assumed that two embryos would be required in circumstances where:

• The Centre had not been in contact with the couple concerning the required number.
• There was no communication between Dr Armellin and the Centre or the embryologist on the required number of embryos to be inserted.

The first decision – findings of the primary judge on Dr Armellin’s alleged negligence

Bennett J⁴ found that these IVF procedures occurred within a system of divided responsibility which involved the participation of a number of separately qualified people. After an analysis of the system in place, Bennet J found that the Centre should have ensured that the embryologist provided the requested number of embryos as nominated by the patient. Bennet J concluded⁵ that Dr Armellin was entitled to rely upon Centre staff to do what they were responsible for, namely to provide the number of embryos as nominated by the patient.

Bennet J⁴ found that it was reasonable for Dr Armellin to have:

• Relied upon the Centre to act in accordance with their procedure;
• Confirmed the number of embryos to be implanted with Ms G; and
• To notify the embryologist accordingly.⁶

Accordingly, Bennet J found Dr Armellin was not negligent in failing to personally tell the embryologist just prior to the procedure of the number of embryos to be inserted.

Decision overturned – the reasoning of the ACT Supreme Court of Appeal

In a unanimous judgment the Court of Appeal overturned the decision of the trial judge. The Court of Appeal, while noting the involvement and responsibilities of the Centre and its staff, found that Dr Armellin was ultimately responsible for the implantation procedure, commenting: ‘If there was a firm system in place requiring Ms G to have informed the staff of the Centre the day before the procedure about the number of embryos to be transferred, Ms G should have been told in clear terms about its existence. She was not told that at all. She was told that she could let Dr Armellin know before the transfer about the number of embryos to be transferred, as confirmed in Dr Armellin’s letter of 12 August 2003. If that was not the case, Dr Armellin should not have said so in that letter. If a system was in place, Dr Armellin varied it.’⁷

The Court of Appeal found that this was not a situation where Dr Armellin could rely upon the Centre and its systems to determine the number of embryos to be implanted. The Court concluded that: ‘It was negligent, in the circumstances, for Dr Armellin simply to assume that the embryologist was complying with the wishes of the appellants. That is especially so, given the arrangement about notifying Ms G’s decision as confirmed in the 12 August 2003 letter and the absence of evidence of the appellants ever making a firm choice before the procedure about whether one or two embryos should be transferred.’⁸

Conclusion

The decision of the Court of Appeal provides further⁹ useful guidance on understanding the factors a court will find relevant in determining various responsibilities and respective liabilities of a treatment team when assessing a medical negligence claim. The timing of when the final decision by the patient could be communicated to the Centre and the consultant was critical to ensuring the patient’s wishes and expectations could be met. The ultimate responsibility of the consultant was highlighted by the Court of Appeal in this case. However, in the author’s respectful view, the decision does not necessarily mean that a consultant will be automatically liable for the failings of another member of the treating team solely by virtue of being the senior clinician.

The information in this article is general information relating to legal and/or clinical issues within Australia (unless otherwise stated). It is not intended to be legal advice and should not be considered as a substitute for obtaining personal legal or other professional advice or proper clinical decision-making having regard to the particular circumstances of the situation.