El-Masri v Molloy

Case [2015] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

EL-MASRI v MOLLOY & ANOR

[2015] SASCFC 63

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)

4 May 2015

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES

Appeal against a finding of negligence by a District Court Judge following a trial on liability – first respondent consulted appellant in December 2005 regarding exacerbation of asthma – first respondent asked about menopause towards the end of the conversation – topic of irregular bleeding arose – appellant advised first respondent to return within a certain time if symptoms persist – acceptance of first respondent’s evidence regarding the conversation – acceptance of first respondent’s evidence that the time mentioned for return if symptoms persist was six months and rejection of the appellant’s evidence that the time was one month – at the time of the consultation it was not known that the first respondent was 13 weeks pregnant – pregnancy diagnosed in April 2006 – respondents' son born in June 2006 with Trisomy 21 – significant delay between hearing of evidence and judgment – finding based on respondents’ expert opinion that, given the first respondent’s symptoms, a pregnancy test should have been performed in December 2005 – finding that appellant negligent on the basis of expert opinion as a whole in failing to obtain a history, conduct an examination and make a diagnosis at the consultation or at a follow up examination – finding that the appellant should have arranged a follow up appointment within a period of a month to carry out additional testing – finding that the appellant should have ensured that the first respondent attended a follow up appointment.

Whether the judgment gives adequate reasons for accepting the first respondent’s evidence and rejecting the evidence of the appellant – whether the respective parties’ cases were properly and fairly analysed – whether findings of fact necessary to support the findings of breach of duty were made – whether any definitive findings regarding s 41 of the Civil Liability Act 1936 (SA) were made – whether the finding that the appellant should have ensured the first respondent attended a follow up appointment was based on a ground of negligence not pleaded – whether there are fact finding process errors.

Held (per Blue J and Bampton J, Kourakis CJ agreeing):

1. The reasons for judgment do not explain how the Judge came to the view that the first respondent’s evidence was so reliable – the Judge failed to make any assessment of the appellant’s credibility or that of her witnesses.

2. The Judge failed to make findings about the context in which the conversation about menopause and the topic of irregular bleeding arose – essential to make such findings in order to properly assess the expert medical opinion and make definitive findings pursuant to…

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El-Masri v Molloy [2015] SASCFC 63
Case
[2015] SASCFC 63
Decision Date

CaseChat Overview and Summary

The appeal concerned a finding of negligence against Dr El-Masri, a medical practitioner, made by a District Court Judge. The first respondent, Mrs Molloy, had consulted Dr El-Masri in December 2005 regarding asthma symptoms. During the consultation, Mrs Molloy also raised concerns about menopause and irregular vaginal bleeding. At the conclusion of the consultation, Dr El-Masri advised Mrs Molloy to return if her symptoms persisted, with the period for return being a point of contention between the parties. Mrs Molloy subsequently became pregnant, and her son was born with Trisomy 21. The respondents' case was that Dr El-Masri was negligent in failing to perform a pregnancy test or adequately investigate Mrs Molloy's symptoms, which, given her presentation, should have been done.

The central legal issues before the appellate court were whether the trial judge had provided adequate reasons for accepting Mrs Molloy's evidence and rejecting Dr El-Masri's evidence, particularly concerning the advice given about the follow-up period. The court also considered whether the parties' cases had been properly analysed, whether necessary findings of fact had been made to support the finding of breach of duty, and whether the finding that Dr El-Masri should have ensured Mrs Molloy attended a follow-up appointment was based on a ground of negligence not pleaded. Furthermore, the court examined whether definitive findings regarding section 41 of the Civil Liability Act 1936 (SA) had been made and whether there were errors in the fact-finding process.

The appellate court found that the trial judge's reasons for accepting Mrs Molloy's evidence regarding the six-month follow-up period and rejecting Dr El-Masri's evidence were inadequate. The judge had not provided sufficient explanation for preferring one expert's opinion over another, nor had he clearly articulated the factual basis for applying the expert opinions. The court noted that the judge's findings about the discussions during the consultation and the expert medical evidence were deficient, and the inadequacy of these reasons vitiated the findings, leading to a mistrial. The court also addressed the issue of the alleged negligence in failing to ensure a follow-up appointment, noting that while this was pleaded, the judge's findings on this specific point were also problematic due to the lack of clear reasoning and the potential for it to be a ground not properly considered in light of the overall findings.

Consequently, the Full Court of the Supreme Court of South Australia allowed the appeal, set aside the judgment of the District Court, and ordered a new trial on all issues.

Orders

Orders of the court

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Background

Background to the litigation

Dr El-Masri’s appeal raises four issues:1.Did the Judge fail to make necessary findings or fail to give adequate reasons for findings made so as to amount to an error of law giving rise to a mistrial?2.Was it open to Mrs Molloy on her pleadings to contend that Dr El‑Masri was negligent by failing to ensure that Mrs Molloy attended at a subsequent examination and if so did the Judge err in finding that she was so negligent?3.Is this Court in a position to decide that Dr El-Masri was or was not negligent and did or did not have a defence under section 41(1) of the Act?4.Did the Judge err in finding that causation was established and that Mrs Molloy was not guilty of contributory negligence?Background The background, issues at trial and evidence are summarised in the judgment of Bampton J. The conversation during the consultation addressed two topics and was in two discrete parts. For ease of reference, I refer to all conversation about asthma (including any return) as “the asthma discussion” and all conversation about menopause and bleeding (including any return) as “the menopause discussion”.The Judge’s reasons In the first section of the Judge’s reasons for judgment, his Honour summarised the issues arising on the pleadings,[1] the elements of the cause of action in negligence and the defence under section 41(1) of the Civil Liability Act 1936 (SA) (the Act).[2][1] The Judge also rejected a time limitation defence pleaded by Dr El-Masri in respect of which there is no appeal and which can be ignored.[2] [2014] SADC 53 at [9]-[52]. In the second and largest section of the judgment, under the headings “The Plaintiffs Witnesses” and “The Defendant’s Witnesses” (the Witness Summary section), the Judge summarised the evidence given by the witnesses. The summary of the evidence given by the plaintiffs’ witnesses integrated evidence in chief and cross-examination without distinguishing between them and without transcript references. The summary of the evidence given by the defendant’s witnesses was divided into different sections addressing evidence in chief and cross-examination and included transcript references. The third section of the judgment was entitled “Submissions and Findings” (the Findings section), in which the Judge summarised submissions by the parties and made or reiterated findings on the issue of negligence. The fourth section was entitled “Contributory Negligence” and the final section was entitled “Conclusion”. The Judge made critical findings on what was said during the menopause discussion in the Witness Summary section of the judgment. The Judge made the following findings on this topic during his Honour’s summary of Mrs Molloy’s evidence:During the consultation [Mrs Molloy] also asked the doctor what she could tell her about menopause. To her recollection the doctor said “we don’t know much about menopause, it can happen anytime. Go for any length of time.”Whilst counsel for the defendant was critical of Mrs Molloy in relation to that evidence, suggesting that it was most unlikely that a general practitioner with the defendant’s experience would say such a thing, in the context of a discussion of onset and duration, I have no difficulty in accepting the plaintiff’s account of that conversation. In any event, in my view, little turns on that. The plaintiff and Dr El-Masri then had a discussion about natural products that were available to alleviate the symptoms of menopause. When the defendant asked Mrs Molloy whether she wanted a booklet on the topic, she said yes. She also mentioned that she had irregular vaginal bleeding and told the defendant she was continually wearing panty liners. …She could not recall whether she told the defendant that she thought her last period was in August or December 2005. She said had she been asked about her last menstrual period, she would have described the occasions in August and December when she believed she had her period. … … The plaintiff said that the defendant told her that if the irregular vaginal bleeding continued that she should come back in six months and that she would refer her to a gynaecologist. ……I accept Mrs Molloy’s evidence as to the conversation with Dr El-Masri during the consultation. As I have said, I regard her as a careful and truthful witness. The consultation was personal to her. She was one of many patients for Dr El-Masri. Dr El‑Masri’s notes do not support Dr El-Masri’s version.[3][3] [2014] SADC 53 at [73]-[75], [77] and [83].

Evidence

Evidence Before The Court

The Judge rejected Dr El-Masri’s evidence (given during evidence in chief) that she told Mrs Molloy that the irregular bleeding might not be due to menopause and there could be other causes. The Judge did not give any reasons for rejecting that evidence or refer to Mrs Molloy’s evidence on that topic or to Dr El-Masri’s cross-examination on that topic. Dr El-Masri’s version in this respect was put to Mrs Molloy in cross-examination together with a suggestion that Dr El-Masri said that if her bleeding continued she should come back in a month. Mrs Molloy agreed with that version except for the reference to coming back in a month as opposed to six months.[56] Dr El-Masri was not challenged in cross-examination as to her evidence that she told Mrs Molloy that the irregular bleeding might not be due to menopause and there could be other causes. Given the evidence, it was incumbent on the Judge to give reasons for rejecting Dr El‑Masri’s evidence on this topic. [56] T 114/1-15The expert evidence Dr El-Masri contends that the Judge’s reasons concerning the expert evidence are inadequate because:1.the Judge did not make a clear finding concerning the differences of opinion between the expert witnesses called by the Molloys and those called by Dr El-Masri and, to the extent that his Honour preferred the opinions expressed by the expert witnesses called by the Molloys, did not give coherent and comprehensive reasons for doing so;2.the failure to make specific findings concerning what happened and what was said during the consultation resulted in there being no factual basis to which the opinions expressed by the doctors could be applied; and3.the Judge did not make a clear finding regarding the existence of any widely accepted competent professional practice in Australia. The Molloys take issue with these contentions and contend that the Judge made all findings necessary to support the conclusion reached and gave adequate reasons for them.Findings on differences In Dagenham Nominees Pty Ltd v Shanks,[57] expert evidence was given by Mr Peachey called by the plaintiff and Mr Pearce called by the defendant. The trial Judge did not give reasons for preferring the evidence of Mr Pearce. This was held to be an error of law resulting, together with other inadequacies in the Judge’s reasons, in a mistrial. Lander J (with whom Debelle and Nyland JJ agreed) said:[The trial Judge] was entitled to prefer the evidence of one expert to another but only if there were reasons for so doing. The trial Judge has expressed no reasons as to why he preferred the evidence of Mr Pearce whose evidence he describes as "the most reliable". He was also obliged, in my opinion, if he was to reject Mr Peachey's evidence to explain why his evidence was to be rejected.[58][57] [2003] SASC 219.[58] At [76]. In the Witness Summary section of the judgment, the Judge said that he accepted the opinions expressed by Associate Professor McBride and found her to be an eminently qualified and impressive witness as to the standard expected of a general practitioner in the discharge of their duty to a patient. In the Conclusion section, the Judge said that he preferred the evidence of Associate Professor McBride and Dr Kaesehagen as to the steps that should have been taken given the symptoms described by the plaintiff.

Decision

Reasons for decision

In analysing the opinions expressed by the medical experts, the Judge did not separate his analysis of the issue of widely accepted practice arising under section 41(1) of the Act from his analysis of the issue of negligence. It was necessary to analyse the two issues separately on the basis of comprehensive findings as to the entirety of the menopause discussion.Conclusion on adequacy of reasons The Judge’s findings about what was discussed during the menopause discussion and as to the issues addressed by the expert medical evidence are deficient and the Judge’s reasons for the findings that were made on those topics are inadequate. The inadequacy of the reasons vitiates the findings and, subject to the other arguments by the parties on appeal about to be addressed, resulted in a mistrial.Failure to follow up on Mrs Molloy making an appointment Dr El-Masri contends that, to the extent that the Judge found that she was negligent by not creating and implementing a system to follow-up patients who had been told to return in the future to ensure that they did in fact return, that case was not pleaded by the Molloys and was in any event against the weight of the expert evidence. The Molloys take issue with these contentions and contend that, even if the Judge’s conclusions as to negligence are otherwise vitiated for inadequacy of reasons, the judgment can be upheld on this particular of negligence. It is important to distinguish between two different particulars or potential particulars of negligence. First, an allegation that Dr El-Masri was negligent by telling Mrs Molloy to return, albeit within a timeframe of one month, if symptoms persist rather than telling her to return in one month regardless of ongoing symptoms. Secondly, an allegation that Dr El-Masri was negligent by not creating and implementing a system to follow-up patients who had been told to return in the future to ensure that they did in fact return. The Judge included in the Findings section two subsections under the headings “Follow Up Appointment” and “What was the Arrangement for the Follow Up Appointment?” In the former subsection, the Judge addressed the first allegation but did not address or make findings concerning the second allegation referred to in the previous paragraph. The Judge said:In my view, the law imposes a duty on medical practitioners to take a proactive approach to the following up of patients, their signs and symptoms, and to provide them with sufficient information about the need and priority for further medical attention. That duty extends to the provision of reasonable steps to have the patient return for further appointments and examination or investigation, if required. Associate Professor Watts was asked whether he would have organised a follow up appointment. He said:I probably would have. I probably wouldn’t have – I mean what do you mean by ‘organise’? do you mean take the patient out to the desk and write in an appointment or – I probably wouldn’t have done that but I would have said, I would have impressed on her that I really needed to see her, you know, within the month so that we could sort out the problem.And when asked within what time frame, on the limited information available, said:The time frame would be, you know, within a month, you know, depending on her need. But two to three weeks maybe, yes, something like that. The duty also extends to a responsibility to provide sufficient advice about the consequences of not pursuing such matters, so that the patient may make informed decisions about whether to return.…Whilst the defendant submitted that there was no allegation of a breach of duty by Dr El-Masri in relation to the follow up advice given by her to the plaintiff, the plaintiff pleaded, by paragraph 11.5 of the statement of claim, that the defendant “failed to arrange a follow up appointment within a few days to further consider the first plaintiff’s gynaecological issues.” I find that the defendant was under a duty to do so.[63][63] [2014] SADC 53 at [258]-[261] and [264]. (Footnotes omitted)

Ratio Decidendi

Legal Principle Established

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