Negligence in Detecting Disability in Pregnancy: Molloy v El Masri [2014] SADC 53
Tuesday 10 June 2014 @ 10.40 a.m. | Torts, Damages & Civil Liability
In the District Court of Adelaide, in the case of Molloy v El Masri [2014] SADC 53, a woman who gave birth to a child with a disability has successfully sued her doctor for failing to detect the pregnancy in time to abort the child.
The Facts
The woman was in her late 40s when she became pregnant and was 48 when she gave birth in June 2006 to a boy with Down syndrome.
The woman claimed she consulted her GP, Randa El Masri, in December 2005 about symptoms including tiredness, emotional outbursts and breathing issues. The woman said she also told Dr El Masri about irregular vaginal bleeding over a number of months.
The court heard the doctor gave the woman asthma medication and information about menopause. The next April, a home-testing kit showed the woman was pregnant.
She again saw the doctor, a gynaecologist and a counsellor, to tell them she did not want to have a child but could not terminate the pregnancy because it was at 33 weeks. The woman alleged the GP was negligent in her care and assessment and the birth left her unable to return to her teaching work and she claimed undisclosed damages for the psychological, emotional and financial consequences of giving birth, including the costs of raising a child with Down syndrome.
The Arguments of the Doctor
Dr El Masri denied negligence, saying she exercised "due care and skill appropriate to her position, in her examination, advice, treatment and supervision of the plaintiff".
Alternatively, Dr El Masri claimed the woman contributed to the negligence by failing to tell her about some of her medical history and failed to heed the medical advice that she should return if symptoms persisted.
The Case at Court
In the judgment of His Honour Judge Soulio, much of the Doctor's evidence was rejected, with His Honour saying at Paragraph [280]:
"I find that on the basis of the expert evidence as a whole, in failing to obtain a history, which would have led to further investigation and examination, and diagnosis, either at that examination or at the follow up examination which Dr El Masri should have arranged, she did not act in a manner that was widely accepted as competent professional practice, and that she breached her duty to the plaintiff."
The Doctor was held liable for the plaintiff's pregnancy and the plaintiff was entitled to damages for losses sustained as a result of the doctor’s negligence. Furthermore, His Honour did not consider that the plaintiff contributed to her own loss, and accordingly damages were not reduced by reason of contributory negligence.
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Sources:
Molloy v El Masri [2014] SADC 53
