Burke v. Rivo

551 N.E. 2d 1 (1990)

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Nature of the Case

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Facts

P met with D to discuss her desire not to have more children. Her family was experiencing financial difficulties. She wanted to return to work to support her family and to fulfill her career goals. D recommended a bipolar cauterization procedure and he guaranteed that she would not again become pregnant if she did so. In February 1984, D performed a laparoscopic bilateral tubal ligation by bipolar cauterization. On June 25, 1985, a pregnancy test confirmed that P was pregnant. On February 12, 1986, she give birth to a fourth child, and the next day she underwent a second sterilization procedure, known as bilateral salpingectomy. A pathology report showed that there had been a recanalization of the left fallopian tube. P sued D and assert that, if D had told her of the risk of recanalization, however small, she would initially have selected a different sterilization procedure. The judge concluded that a physician may properly be held liable if his negligent performance of a sterilization procedure permits conception. The judge also accepts as a valid potential basis of liability that, as alleged in the complaint, D negligently failed to advise P of the risk that the operation might not achieve its purpose. The court transferred the case on the issue of damages.