NEWS ANALYSIS: A German doctor has been held responsible for a child born after he inserted a contraceptive device in the mother. Tom O'Dowd considers the judgment's implications
A federal appeals court in Germany recently ruled that a doctor must pay a patient €600 per month because she got pregnant sometime after he inserted a contraceptive implant in her arm.
The monthly payment must continue until her child reaches 18 years of age and the now-absent father is to be compensated for the maintenance he has been paying towards the child.
It has shocked German medical associations, popular newspapers and bloggers.
Most are upset for the child as it seems to be labelled as an official mistake for which the parents have been compensated.
Contraceptives do fail. Failure is divided into two categories: user or method failure.
User failure is fairly common as the patient may forget to use the now wide variety of methods available.
Indeed, manufacturers are continually striving to invent methods of contraceptive delivery that reduce user failure.
This has given rise to patches, implants and hormone-coated intrauterine devices (IUD) that are now in common use.
In addition, there are the once-off "morning after" or emergency contraceptive pills which are in widespread use in Ireland and elsewhere.
These are best taken as soon as possible after unprotected sex and certainly within 72 hours as effectiveness falls off the longer the patient leaves it.
Method failure occurs where a pregnancy occurs despite proper use.
For doctors, the pitfall is where the patient taking the pill is prescribed antibiotics which reduce the effectiveness of the pill.
Also IUDs can be expelled, especially in the months after fitting and not be noticed by the patient.
These issues are usually explained well by the doctor when the patient starts a new method of contraception and also in the manufacturer-provided patient information material.
But not everyone pays attention or reads leaflets for what has become a routine medical consultation.
Obtaining contraception has become more of a consumer transaction than a medical consultation with most patients being well informed and in good health.
Indeed, some argue that doctors should be removed from the prescription of the pill; after all, in some countries, it is available direct from pharmacies.
For the implant or "bar in the arm", as my patients call it, the failure rate is very low, at about one in 1,000. It is inserted under the skin in the arm via a small incision and contains a single hormone, progesterone, which is released slowly over a three-year period. It can be taken out at any time to plan a pregnancy or because of side effects.
The German judgment has highlighted an additional failure which is that of the competence of the doctor fitting the device. It means the doctor having to assume responsibility for perhaps inadequately fitting devices.
Many years ago a very pro-life obstetrician triumphantly regaled a group of us general practitioners with accounts of babies being born "waving IUDs in their hands as they came into the world".
It now seems that doctors and nurses will have to teach patients to check regularly for the presence of the implant, especially in the months following insertion. It somewhat defeats the attempt to get around the issue of user failure but makes sense for any women currently using the implant.
German doctors think it will open the doors to other cases. Family planning in Ireland has had a colourful history and has attracted liberal-minded doctors, nurses and pharmacists who served patients quietly and discreetly. Most GPs now provide full contraceptive advice in a non-judgmental and competent manner.
By Irish medicolegal standards, the German award, which totals €130,000, is on the small side.
What seems to have attracted attention is the monthly payments to the child. They have the look and feel of paternity payments.
However, as a means of paying out medicolegal awards it has its merits.
Some doctors and lawyers have been critical of massive one-off awards which require good financial management and foresight on the part of the patient. The size of these awards depend on predicting the patient's future health and life expectancy. Also one-off payments do not allow a patient to go back if the money is inadequate or to return unspent funds if cure or death occurs.
Doctors in Germany have been awakened to the hazards of contraception. While German newspapers are critical of the mother, they welcome doctors being held to account in the same manner as shoddy plumbers. Germany today, Ireland tomorrow.
Prof Tom O'Dowd is professor of general practice at Trinity College Dublin and a practising GP