Molloy v El Masri

[2014] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MOLLOY v EL MASRI

[2014] SADC 53

Judgment of His Honour Judge Soulio

4 April 2014

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - AFFECTING PARTICULAR PROFESSIONS OR OCCUPATIONS

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE

Trial as to liability - 48 year old woman – consulted general practitioner with complaint of irregular vaginal bleeding – told to return if symptoms persisted – later discovered she was pregnant – too late for therapeutic abortion – child born with trisomy 21 - claim for damages by parents.

Held – defendant liable in negligence – no contributory negligence.

Limitations of Actions Act 1936 ss 36, 48; Civil Liability Act 1936 ss 3, 40, 41, referred to.
Walkin v South Manchester Health Authority [1995] 1 WLR 1543; Akpata v Minister for Immigration and Citizenship [2012] FCA 806; Harriton v Stephens (2006) 226 CLR 52; CES & Anor v Superclinics (Australia) Pty Ltd & Ors (1995) 38 NSWLR 47; Cattanach & Anor v Melchior & Anor (2003) 215 CLR 1; F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 175 CLR 479; Sydney Southwest Area Health Service & Anor v MD (2009) 260 ALR 702; Bolitho v Hackney Health Authority [1998] AC 232; Reynolds v North Tyneside Health Authority [2002] Lloyds Rep Med 459; Whitehouse v Jordan (1980) 1 ALL ER 267; CAL No. 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; Rosenberg v Percival (2001) 205 CLR 434; EG Jones v Bartlett (2000) 205 CLR 166; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Terry v Leventeris (2011) 109 SASR 538; Dobler v Halverson (2007) 70 NSWLR 151; Tai v Hatzistavrou [1999] NSWCA 306; Kite v Malycha (1998) 71 SASR 321; Irrationality, Evidence-Based Medicine and The Standard of Care, M.Parker (2007) 15 JLM 383, considered.

MOLLOY v EL MASRI
[2014] SADC 53

Contents

Background
Basis of Claim – Issues on the Pleadings

Negligence

Loss
The Defence
Contributory Negligence
Extension of Time

The Evidence
The Applicable Law

Entitlement to Claim
Civil Liability Act 1936
The Exclusion – Section 41(5)
The Statutory Defence
The Defendant’s Duty

The Plaintiffs’ Witnesses

Mrs Molloy
Associate Professor McBride
Dr Kaesehagen
Mr Molloy
Ms Unterweger

The Defendant’s Witnesses

Dr El Masri
Cross-examination
Professor Michael
Cross-examination
Adjunct Associate Professor Watts
Cross-examination
Dr Joyner
Cross-examination

Submissions and Findings

The Consultation
The Need for a History, Examination and Testing
Follow Up Appointment
What was the Arrangement for the Follow Up Appointment?

Contributory Negligence

Conclusion

Background

1. The plaintiff, Therese Molloy was born on 3 October 1957. Stephen Molloy, the second plaintiff, is her husband. On 13 December 2005, when she was 48 years old, Mrs Molloy consulted her general practitioner, Dr El Masri (‘the defendant’) complaining of symptoms of asthma, tiredness and of having emotional outbursts, and also informed Dr El Masri of vaginal bleeding which had been going on for some months.

2. In respect of the first issue, Dr El Masri made a diagnosis of asthma and prescribed medication. In respect of the second issue Dr El Masri provided Mrs Molloy with information about the menopause and suggested she return for a further appointment if the gynaecological symptoms persisted. There is a dispute as to the time frame within which the further appointment was to be made.

3. In April 2006 Mrs Molloy undertook a home pregnancy test, which was positive, and on 20 April 2006 consulted Dr El Masri for further advice. Dr El Masri confirmed the pregnancy and referred Mrs Molloy to a gynaecologist, and for counselling, as Mrs Molloy, who was then aged 48 years, said that she did not want to have a child. She was advised by her gynaecologist that, as at the end of April 2006, she was 33 weeks pregnant and had no option but to continue the pregnancy to term.

4. The plaintiffs’ child, James Molloy, who was born on 13 June 2006, was born with Down syndrome (trisomy 21).

5. Mrs Molloy alleged that had she known she was pregnant when she consulted with Dr El Masri on 13 December 2005, she would have been able to undertake trisomy 21 testing, and would have exercised the option to terminate the pregnancy.

6. Mrs Molloy claims damages in respect of the consequences of undergoing childbirth, and the increased costs of raising a child with Down syndrome.

7. The plaintiffs seek a determination of the defendant’s liability to the plaintiffs, and ultimately seek an interim assessment of damages, and in due course a final assessment of damages.

8. The present trial is to determine the issue of liability only, a master of this Court having made an order to that effect.

   Basis of Claim – Issues on the Pleadings

   Negligence

9. The plaintiff alleged that Dr El Masri was aware, at the time of the consultation in December 2005 that the plaintiff was married, and therefore could have assumed she was in a sexual relationship; that the plaintiff had not taken contraceptive medication since January 2003; and that condoms were used as her preferred contraceptive measure.

10. The plaintiff alleged that the failure to diagnose the pregnancy in December 2005 constituted negligence on the part of the defendant in her care for the plaintiff, and alleged that the defendant failed to exercise due care and skill appropriate to her position as a medical practitioner in that the defendant failed to ask her about her history of vaginal bleeding; or seek information about changes in her periods; or obtain information about her pregnancy and birth history, pap smear test history, contraceptive use, and weight changes in the preceding months.

11. She further alleged that the defendant was negligent in that she failed to recommend that the plaintiff undertake a pregnancy test to exclude the possibility of pregnancy as a possible cause of the vaginal bleeding; failed to undertake an abdominal and vaginal examination; failed to provide advice as to the possibility of pregnancy, in light of the significant increased likelihood of the occurrence of Down syndrome in children born to older mothers; and failed to arrange a follow up appointment within a few days, to further consider the plaintiff’s gynaecological issues.

    Loss

12. The plaintiffs alleged that the first plaintiff suffered the pain, suffering and trauma associated with the pregnancy and after effects, including ongoing psychological trauma; incurred the costs associated with the medical treatment of the first plaintiff associated with the pregnancy, birth and follow up treatment after pregnancy; and will incur further costs including ongoing counselling and psychiatric assistance.

13. The plaintiffs also claimed losses in relation to the increased cost of care of their child, over and above the care which would be provided to an otherwise healthy child including additional medical appointments to monitor his condition; the increased time engaged in an active caring role; the increased medical costs; and the costs of purchasing learning aids, undergoing speech therapy and receiving medical assistance. In addition, the plaintiffs say they will be required to care for their child on an indefinite basis, rather than until he reaches adulthood.

14. The plaintiff, who is a school teacher and worked on a full-time basis for many years before the birth of James, says that she is unable to return to full time teaching and will in any event have to limit the amount of work that she does, having regard to the fact that she is the person in the best position to provide care to her son.

15. Mr Molloy also claims a loss of consortium associated with the birth of James Molloy.

    The Defence

16. The defendant alleged, by her defence, that the plaintiff’s presenting problem on 13 December 2005 was shortness of breath and a cough related to her asthma, and only at the end of the consultation did the plaintiff ask about menopause and say that she had experienced irregular vaginal bleeding during her menstrual cycle. The defendant conceded that she was aware that the plaintiff was married, was not using oral contraceptives, and was using condoms for contraception.

17. The defendant alleged that she told the plaintiff that if symptoms of irregular bleeding persisted, she should make an appointment in about a month, not a few months, as she would need to be seen by a gynaecologist.

18. The defendant denied that she was negligent, and asserted that she exercised due care and skill appropriate to her position, in her examination, advice, treatment and supervision of the plaintiff, and further asserted that the history obtained was appropriate and that having regard to the history of irregular bleeding, there was no indication to recommend a pregnancy test.

19. She further asserted that there was no clinical indication to perform an abdominal and vaginal examination, and that even if a vaginal examination was performed, an enlarged uterus would not necessarily have been found because the first plaintiff was overweight.

    Contributory Negligence

20. The defendant asserted, in the alternative, that the plaintiff was guilty of contributory negligence in that she failed to tell the defendant on 13 December 2005 that she had not had a menstrual period since August 2005; failed to tell Dr Coulthard from the same medical practice and whom the plaintiff consulted on 14 December 2005, of that fact; failed to seek advice from the defendant, or anyone else, when symptoms persisted after December 2005; failed to provide a complete medical history; failed to follow the advice of the defendant to seek referral to a gynaecologist; failed to seek advice when she did not experience menstrual bleeding; failed to do a home pregnancy test before April 2006; and elected not to follow the defendant’s advice or seek medical treatment for her condition.

    Extension of Time

21. The plaintiffs instituted proceedings on 9 April 2009. The plaintiffs seek, insofar as may be required, an extension of time pursuant to s 48 of the Limitations of Actions Act on the basis that the plaintiff first became aware, on 15 January 2009, of the opinion of Associate Professor McBride. The plaintiffs pleaded that the defendant was made aware of the potential claim in about August 2006 and appointed solicitors who have corresponded with the plaintiffs’ solicitors, and that in all the circumstances it is just and equitable to allow an extension of time.

22. The plaintiff did not ascertain that she was pregnant until mid to late April 2006. Although the consultation with the defendant took place on 13 December 2005, I do not consider that an extension of time is required. The defendant did not assert that the claim was statute bared.

23. The present claim for damages includes damages in respect of personal injuries.[1] Section 36 of the Limitation of Actions Act 1936 (SA) provides:

    (1)All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after.

    (1a)However, in the case of a personal injury that remains latent for some time after its cause, the period of 3 years mentioned in subsection (1) begins to run when the injury first comes to the person's knowledge.

    (2)     In this section—

    "personal injuries" include any disease and any impairment of a person's physical or mental condition.

    [1]    See Walkin v South Manchester Health Authority [1995] 1 WLR 1543 where the English Court of Appeal held that a mother’s claim for damages arising from a failed sterilisation operation, which resulted in an unwanted pregnancy and the birth of a healthy child, was a claim for “damages in respect of personal injuries”.

24. In Akpata v Minister for Immigration and Citizenship, Jacobson J said: [2]

    It seems clear enough that damage is a necessary element of such a cause of action, so that the cause of action accrues when the damage is suffered.

    …

    Section 36(1a) of the Limitation Act, which was inserted with effect from 8 February 2006, makes specific provision for situations which have arisen in authorities such as Cartledge v Jopling where a disease exists but its symptoms are unknown until a later point of time.

    It is to meet this situation that s 36(1a) provides that in the case of a personal injury that remains latent for some time after the cause, the period of three years stated in s 36(1) begins to run when the injury first comes to the person’s knowledge.

    The word “latent” in s 36(1a) means hidden or concealed, present but not visible or apparent. It describes a condition suffered by a person about which the person has no knowledge. (citations omitted)

    [2]    Akpata v Minister for Immigration and Citizenship [2012] FCA 806 [69] [74-76].

25. In the present case, the period of three years is to run from when the condition of pregnancy first came to Mrs Molloy’s knowledge, either as a result of seeing the results of the home pregnancy test, or in late April 2006 when her pregnancy was confirmed by Dr El Masri.

26. As I have said, there is no need for an extension of time. If an extension of time had been required I would have granted an extension on the basis that the circumstances alleged by the plaintiffs justify the grant of an extension, and the justice of the case required the grant of an extension.

    The Evidence

27. The first plaintiff gave evidence, as did her husband, and a family friend, Ms Unterweger. She called a general practitioner, Dr Kaesehagen, and Associate Professor McBride, a professor of general practice. Reports of each of the experts, together with a number of medical articles appended to those reports, were received without objection. Other documents were received and I will refer to them as necessary.

28. The defendant gave evidence and called Dr Joyner, a general practitioner, Associate Professor Watts, and Professor Michael. Reports of the witnesses were received, again without objection.

29. Medical notes relating to the plaintiff were also put into evidence.

30. Some of the evidence was not controversial. Some matters are common ground on the basis of concessions on the pleadings. Where there are disputes on the evidence, going to the central issues, I will refer to them for the purposes of making specific findings. Otherwise my narrative constitutes my findings.

    The Applicable Law

    Entitlement to Claim

31. Whilst some uncertainty had attended the issue of whether a child, who is an unintended birth, and the parents of such a child, have an entitlement to damages, those issues have been conclusively determined by the High Court in relatively recent times. The child has no claim.[3]

    [3]    Harriton v Stephens (2006) 226 CLR 52.

32. However, in CES v Superclinics,[4] the Court of Appeal in New South Wales held, by a majority, that negligent advice resulting in the loss of a chance to have a lawful abortion could give rise to a claim for damages.

    [4]    CES & Anor v Superclinics (Australia) Pty Ltd & Ors (1995) 38 NSWLR 47.

33. Finally, in Cattanach v Melchior,[5] the plaintiffs, parents of a child born following negligent advice, resulting in the loss of a chance to have a lawful abortion, made claims for damages under three heads, all of which were awarded by the trial judge. The first category was a claim for damages by the mother relating to the pregnancy and the birth, including compensation for pain and suffering, and loss of amenities of a life associated with the pregnancy and childbirth, the loss of earnings, the loss of capacity to undertake future employment, and various expenses including household care, medical and pharmaceutical costs. The second category was a claim by the father for loss of consortium following pregnancy and childbirth. Neither category was challenged on appeal to the High Court. However the award of damages for the costs of raising and maintaining the child was challenged. The High Court, by a majority, held that in compensating for the unintended birth of the child, resulting from a doctor’s negligent advice and failure to warn, the parents were entitled to damages for the cost of raising and maintaining the child, and that the benefits received from the birth of a child were not legally relevant to the head of damage that compensates for the cost of raising and maintaining the child.[6]

    Civil Liability Act 1936

    [5]    Cattanach & Anor v Melchior & Anor (2003) 215 CLR 1.

    [6]    Cattanach & Anor v Melchior & Anor (2003) 215 CLR 1, per Gleeson CJ, McHugh, Gummow, Kirby & Callinan; Hayne and Heydon JJ dissenting.

34. The Civil Liability Act 1936 (‘the Act’) provides not only a standard against which the Court must determine the standard expected of a professional but also provides a statutory defence to the provider of a professional service.

35. Section 41 of the Act provides:

    (1)A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession as competent professional practice.

    (2)However, professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

    (3)The fact that there are differing professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

    (4)Professional opinion does not have to be universally accepted to be considered widely accepted.

    (5)This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of a risk of death of or injury associated with the provision of a health care service

    The Exclusion – Section 41(5)

36. A “health care service” means a diagnostic service, a therapeutic service, or any other service directed at maintaining or restoring health.[7] “Injury” is defined to mean bodily injury and includes mental harm.[8]

    [7] Section 3 Civil Liability Act.

    [8] Section 3 Civil Liability Act.

37. The plaintiffs contended that the present case is an advice case within the meaning of s 41(5) of the Act, and the defences provided by s 41(1)(4) of the Act are not open to the defendant, from which it follows that the common law tests as laid down in F v R,[9] and Rogers v Whitaker,[10] are applicable, and that the standard of care is that imposed by law and is to be judged by a legal standard.

    [9]    F v R (1983) 33 SASR 189

    [10] Rogers v Whitaker (1992) 175 CLR 479.

38. The plaintiff’s consultation with the defendant may fall within the definition of a health care service. However it seems to me that on a plain reading, the present case does not fall within the ambit of s 41(5), and that while the section is capable of a wide definition, the present case involves, in essence, a failure to diagnose, or to consider as a differential diagnosis, the plaintiff’s condition of pregnancy, rather than the failure to provide a warning in respect of the risk of injury associated with the provision of a health care service.

39. The defendant sought to rely on s 41 of the Act despite not pleading a reliance on the Act, and said that the facts contemplated by the section have been pleaded in the defence, and evidence has been given by each of the expert witnesses referable to the standard contemplated by the section.

40. In Sydney Southwest Area Health Service & Anor v MD, in dealing with s 5O of the Civil Liability Act (NSW) the cognate provision of s 41 of the Act, Hodgson JA said:[11]

    In my opinion, it is clear that s 5O modifies the common law and provides a defence not available at common law, with an onus of proof lying on a defendant: see Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 at [54]-[61].

    [11] Sydney Southwest Area Health Service & Anor v MD (2009) 260 ALR 702 [21].

1. He went on to say:[12]

   In my opinion, s 5O does contemplate proof of material facts which, if established, would negative a finding of negligence which otherwise might be available; so in my opinion the material facts contemplated by s 5O should be pleaded in a defence, even if specific reference to s 5O is not mandatory. However I would say that specific reference to s 5O would be desirable.

   [12] Sydney Southwest Area Health Service & Anor v MD (2009) 260 ALR 702 [23].

2. Allsop P, in the same case, put it more strongly. He said:[13]

   First, the Civil Liability Act 2002 (NSW), s 5O does need to be pleaded. It is not just a matter of evidence. It transfers, to a degree, the onus of proof. It transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal. It also may raise, in other cases, although it did not here, issues as to schools of medical practice, the geographical or other areas in which those schools might obtain and other matters requiring specificity and particularisation. In my view, for the reasons Hodgson JA has given and for the reasons in Dobler v Halverson as well, it is a matter that needs to be pleaded. … (citation omitted)

   [13] Sydney Southwest Area Health Service & Anor v MD (2009) 260 ALR 702 [51].

3. Whilst it would have been preferable for the defendant to specifically plead reliance on s 41 of the Act and to particularise the basis of such reliance, the defendant was entitled to lead evidence to address the issues outlined in the section, and did so without objection from the plaintiff. It is open to the defendant to argue a reliance on the defence offered by the section, although for reasons to which I will refer, I find that in fact s 41 does not afford the defendant a defence to the claim.

   The Statutory Defence

4. The term “irrational’ is not defined. It has been argued that the only meaning which can be sensibly given is that of “being inconsistent with current medical knowledge”.[14]

   [14] Irrationality, Evidence-Based Medicine and The Standard of Care, Malcolm Parker (2007) 15 JLM 383.

5. In Bolitho v City and Hackney Health Authority, the Court said: [15]

   When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna – particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence.

   [15] Bolitho v Hackney Health Authority [1998] AC 232.

6. In Reynolds v North Tyneside Health Authorities,[16] the claimant suffered cerebral palsy sustained as a result of a failure to detect a prolapsed umbilical cord at an early enough stage as a result of no vaginal examination having been carried out on admission to hospital of the mother. The defendant’s position was that it was not mandatory to have performed a vaginal examination because the risk of cord prolapse was very low; the midwife followed hospital practice, there was a body of midwifery opinion which supported the omission of a vaginal examination on admission, and vaginal examination would increase the risk of infection. The claimant succeeded for a number of reasons, but Gross J said:[17] (at 475)

   In any event, even if there was any such contrary practice, or body of opinion, then the only reason articulated in its support for not conducting an immediate VE, namely the risk of infection, does not withstand scrutiny. Where the sole reason is relied upon in support of a practice is untenable, it follows (at least absent very special circumstances) that the practice itself is not defensible and lacks a logical basis.

   The Defendant’s Duty

   [16] Reynolds v North Tyneside Health Authority [2002] Lloyds Rep Med 459.

   [17] Reynolds v North Tyneside Health Authority [2002] Lloyds Rep Med 459 p 475.

7. As the defendant submitted, in order to make out the claim the plaintiff must establish that Dr El Masri breached a relevant duty of care to the plaintiffs. In evaluating the duty issue, the Court must assess the conduct of Dr El Masri according to the standard of a reasonably competent general practitioner.[18] In Rogers v Whitaker the High Court observed that:[19]

   The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”, it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.

   …

   In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. (citations omitted)

   [18] Section 40 Civil Liability Act 1936.

   [19] Rogers v Whitaker (1992) 175 CLR 479 pp 483, 487.

8. The High Court has recognised that “the sphere of diagnosis and treatment (is) the heartland of the skilled medical practitioner,”[20] in contrast to cases involving “informed consent”, where the Court reserves for itself the critical question which is whether what a practitioner did or did not say accords with the Court's conception of what was required for the doctor to meet the duty of care cast upon that doctor.[21]

   [20] Rogers v Whitaker (1992) 175 CLR 479 p 487.

   [21] F v R (1983) 33 SASR 189, endorsed in Rogers v Whitaker (1992) 175 CLR 479.

9. What must be established is negligence; that is, a breach of the relevant duty, not simply an error of judgment.[22]

   [22] Whitehouse v Jordan (1980) 1 ALL ER 267 p 288, per Denning MR.

10. In addition, the plaintiff is required to establish a causal link between the breach of duty and the loss. It must be established, on the balance of probabilities, that were it not for the breach of duty, the plaintiff would not have delivered a baby with trisomy 21. In other words, it must be proved on the balance of probabilities, that the failure to diagnose that the plaintiff was pregnant, or to take steps to exclude that as a differential diagnosis in December 2005, was the reason the plaintiff was not diagnosed as being pregnant in sufficient time to have a therapeutic termination of pregnancy.

11. In relation to the issue of causation, the defendant contended that the plaintiff failed to establish that her loss was caused by the defendant, and asserted that, had the plaintiff followed the advice of Dr El Masri to return in a month if the bleeding continued, the pregnancy would have been diagnosed and terminated at that time. That is, any failure to administer a urine pregnancy test, or take other diagnostic steps, in December 2005 did not relevantly cause the plaintiff’s alleged loss.[23]

    [23] CAL No. 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390.

12. I bear in mind that it is important not to allow hindsight to affect reasoning. As was explained by Gleeson CJ in Rosenberg v Percival:[24]

    There is an aspect of such a question which may form an important part of the context in which a Trial Judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated.[25]

    [24] Rosenberg v Percival (2001) 205 CLR 434 [16].

    [25] See EG Jones v Bartlett (2000) 205 CLR 166 p 176 [19]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR p 263 [17], pp 291-292 [109].

    The Plaintiffs’ Witnesses

    Mrs Molloy

13. I say out the outset that I accept Mrs Molloy as an intelligent, careful and truthful witness.[26]

    [26] In doing so I bear in mind the cautionary views expressed in Terry v Leventeris (2011) 109 SASR 358 [14]-[18].

14. She gave evidence as to her background, and said she was born on 3 October 1957, and when she consulted Dr El Masri on 13 December 2005 was 48 years old.

15. She completed a Bachelor of Arts in about 1978, and then undertook a Diploma of Teaching. Once she had that qualification she obtained employment in the Catholic school system and has continued to teach in that system ever since.

16. Mrs Molloy had had a somewhat turbulent time in her previous relationships. At the time she consulted Dr El Masri she had three children aged about 24 years, 17 years, and 14 years, respectively. She was married to the second plaintiff who already had five children as a result of his previous marriage. The second plaintiff’s children lived with their mother, but spent not insignificant time with the plaintiffs. The plaintiff’s three children lived with the plaintiffs.

17. During the course of her teaching the plaintiff obtained a number of post graduate qualifications, including qualifications obtained within the Catholic school system, one of which was obtained at Flinders University, which then led her to undertake a Master’s degree in education which she completed in 2005 after five years of part time study.

18. The plaintiff’s first child was born in 1982, when she had completed her initial studies. She gained her first position as a teacher in 1983. She understood herself to be in a steady relationship with the father of that child, but he informed her that he did not want to be a father, and would not marry her, and provided no support. She was living in her own accommodation. Despite the fact that she had no support from her own family, due to being pregnant when unmarried, she saw no difficulty proceeding with the pregnancy and did so. For the first year of her first daughter’s life she moved in with an aunt and her family for support and then obtained a low interest loan and purchased a home in 1983 or 1984.

19. Some time in 1984 or 1985 she resumed a relationship with an older man she had been involved with when she was 17 years old. She again fell pregnant. She was “quite shocked and also dismayed at the possibility of being a sole parent with two children”. She did not seek support from the father. She sought advice from medical practitioners at the Queen Victoria Hospital, and underwent a termination of pregnancy.

20. In 1989 her second daughter was born. She was in a relationship at that time, and had married while she was pregnant. Following the birth of her second child she returned to full-time work. A third child was born whilst she was married, in 1991, and thereafter that relationship broke down. She received no support from her husband. She continued working full time.

21. In 1999 she met her present husband, the second plaintiff. They purchased a house together and her two younger children remained living with her. Mr Molloy’s children visited and they engaged in activities as a family with the eight children. The plaintiffs were both working full time and invested in property with the intention of continuing to work but retiring at a reasonable age.

22. Whilst the evidence in relation to those issues may be more relevant to the question of damages – if any – it is also relevant as to the plaintiff’s intentions regarding pregnancy and termination of pregnancy.

23. The plaintiff was questioned in relation to topics in a manner designed to elicit whether, even in the event there had been a correct diagnosis, she would have been prevented from proceeding to an abortion on the basis of her religious beliefs.

24. She said she was raised as part of a Catholic family and described herself as being “a person of faith” although not a regular church goer. As a teacher in the Catholic school system she said that she was expected to follow the church’s teachings and to be a good Christian role model. She was specifically asked whether she was a follower of the Pope’s view with respect to abortion and contraception and said that she had not been a follower of his view with respect to contraception, and did not support the Pope’s view on abortion. I accept that her religious views would not have acted as a bar to her undergoing a termination of pregnancy, both on the basis of that evidence, and her evidence as to what in fact occurred at other times in her life.

25. The plaintiff had, up until about 2003, used the oral contraceptive pill. She was about to travel overseas, and consulted Dr Taylor, a doctor practising in the same clinic as the defendant. The plaintiff’s blood pressure was elevated and she was advised that it would be in her best interests to cease taking the oral contraceptive pill and use other forms of contraception. She and her husband decided to use condoms, and did so during her cycle when it was least likely to cause a problem with pregnancy. She and her husband used contraceptive measures as they did not wish to add to their large family.

26. She was asked about, but could not recall, any occasion in the 12 months prior to 13 December 2005 when a condom had broken, or an occasion they had not used a condom. In August 2005 she travelled to Hong Kong with her husband. She recalled having a period prior to her trip to Hong Kong and having a second heavy period in the same month. At the time she thought this was unusual as she had not previously had two periods in one month. She could not recall having a period in September or October, but did recall having constant irregular vaginal bleeding over the course of the two months. As a result she started wearing panty liners in the last school term of 2005. She described experiencing constant bleeding leading up to December 2005, whereby there was some vaginal bleeding every day. In early December she recalled losing her temper with her children and on that day having particularly heavy bleeding, which she believed was her period. 

27. At that time she considered she may be starting to go through menopause, which prompted her to carry out internet searches in relation to menopause to gain information. She recalled reading about symptoms including leg cramps, weight gain, fluttering in the abdominal area and hormonal changes. After learning about such symptoms, it confirmed in her mind that she was going through menopause. Prior to and after December 2005, she had discussions with two friends about menopause.

28. Between August and December 2005, she recalled only one occasion of feeling nauseous whilst driving to work. She did not weigh herself regularly and did not notice any change, swelling or increase in her abdominal size, not any increased sensitivity in her nipples. At the time she did not think she could have been pregnant.

29. She had been attending the Southern Medical Clinic, where the defendant practiced, since 2001. She had undergone a pap smear in December 2004; twelve months prior to the consultation with the defendant, at which time she had been told to return two years later for a repeat pap smear.

30. On 13 December 2005 the plaintiff saw Dr El Masri due to experiencing what she described as exacerbated asthma symptoms for the previous couple of weeks. She also asked about menopause.

31. Dr El Masri’s notes of that consultation read, in their entirety, as follows:

    Cough and S.O.B. [shortness of breath]. Puffer not working. O/E Chest clear. Reduced air entry ê [diagnosis] Asthma.

    Prednisolone – reduce slowly

    Continue seretide and ventolin.

    Long discussion about menopause, having irregular bleeding. Now 48 years old and wearing panty liner most of the time.

    If symptoms persist à Gynaecologist.

32. The ventolin she was using was not improving her symptoms. The plaintiff said that during the consultation, which lasted approximately 15 minutes, Dr El Masri used a stethoscope to check her heartbeat and breathing. Dr El Masri did not carry out any sort of investigation. The plaintiff thought she was given a prescription for prednisolone for her asthma symptoms. She believed the defendant discussed with her how to take the prednisolone.

33. During the consultation she 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.”

34. 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.

35. 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. The defendant did not ask her when she had had her last menstrual period, nor did she ask her any questions about the regularity or volume of her period. She was not asked any questions in relation to the irregular bleeding she mentioned. 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. She was not asked whether she had been fitted with an intrauterine contraceptive device, when the irregular bleeding commenced, or whether she had pain on urination.

36. I observe that whatever the plaintiff might have said in evidence about what she told the doctor about her condition, and whatever concession she might have made about that in cross-examination, what she conveyed to the doctor led the doctor to make a note “irregular bleeding”. It seems to me that the inference which must be drawn is that the plaintiff either used the term “irregular bleeding”, or described her symptoms in such a way as to constitute what is described in medical terms as “irregular bleeding”. What follows from that is that the defendant ought to have treated the plaintiff on the basis that the plaintiff was suffering “irregular bleeding”.

37. There was no discussion about the potential cause of the bleeding or whether she had any symptoms of pregnancy. The defendant did not at any stage raise the possibility that she could be pregnant, or offer her a pregnancy test. 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. As a result of seeing the defendant, she felt there was no urgency to further investigate the irregular bleeding. The plaintiff said:[27]

    My memory of this is that she said to me that if the irregular vaginal bleed continued, to come back to see her in six months, that’s the time I had in my mind and she would send me to a gynaecologist, she could recommend her gynaecologist.

    [27] T 48.

38. When asked whether, in her mind, she believed there was any sense of urgency about what should be done about the bleeding said:[28]

    No, far from that, I felt relieved. I thought ‘oh well, it’s part of being female and it would go away’ or if not I’d come back and take the next measure.

    [28] T 52.

39. The plaintiff said that she was not asked to make a specific appointment at a specific time, and did not receive any communication inviting her to make another appointment and return with respect to the irregular bleeding.[29]

    [29] T 63.

1. The plaintiff said that she was still wearing panty liners in January 2006, and that she continued to experience bleeding. In February and March, but particularly in March, she had another “blood incident” which she thought was the beginning of a period. She said that she always thought that if there was blood involved then one would not be pregnant.

2. Paragraph six of the statement of claim pleads that the plaintiff was advised to make a further appointment in a few months time if symptoms were persisting.

3. Although the plaintiff was cross-examined about the reference in her statement of claim to being told to return in a “few months”, she said that she did not think the difference was overly important and did not raise that with her solicitors. Little turns on that.

4. 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.

5. The defendant told Mrs Molloy she would receive a booklet on menopause at the front counter, which Mrs Molloy was handed before leaving. She never received a ‘follow-up reminder’ from the defendant to make another appointment in relation to the irregular bleeding. After the consultation she believed the diagnosis was one of menopause and that the irregular bleeding was related.

6. She returned to the clinic on the following day, 14 December 2005, and saw another general practitioner, Dr Coulthard, as a result of continuing asthma symptoms. She was prescribed medication during the consultation. She did not mention the irregular vaginal bleeding to Dr Coulthard.

7. The vaginal bleeding continued throughout January to March 2006. In March and April the plaintiff said she noticed she looked ‘a bit more weighty’ in the abdominal area. She also started to feel foetal movements during March and April which led her to believe she was pregnant. She recalled experiencing foetal movements during previous pregnancies towards the end of the pregnancy. As a result she performed two, or possibly more than two, home pregnancy tests, one of which returned a positive result prior to a consultation with the defendant in April 2006.

8. On 29 April 2006, during a consultation, Dr El Masri confirmed that the plaintiff was pregnant. The plaintiff did not tell the defendant she had previously performed a pregnancy test. At that time she was aged 48. She was very distressed upon receiving the confirmation and wanted to terminate the pregnancy.

9. She was referred to Dr Ferguson, an obstetrician, who, she was informed, did not perform terminations. She did not initially tell her husband that she was pregnant for fear that he would leave her. She contacted a women’s health counselling service that referred her to the Woodville Pregnancy Advisory service. She was advised by that service that she was 33 weeks pregnant, at which stage of gestation, she was unable to have an abortion.

10. She saw Dr Bradbury, an obstetrician and physician for the remainder of the pregnancy. She also attended a psychiatrist, Mr Edwards on two occasions at that stage of the pregnancy. 

11. During her first consultation with Dr Bradbury she was told that because of her age there was an increased likelihood of having a child with Down syndrome. She underwent two ultrasounds and was told that the measurements suggested that the child may have Down syndrome. She was offered amniocentesis, and was told that the procedure could have negative affects on her and the child’s health and that it could bring on the labour. She decided not to undergo the procedure. Her son was born on 13 June 2006 with Down syndrome.

12. If she had known she was pregnant on 13 December 2005 she believes she would have terminated the pregnancy. Further, if at that time she had known there was a high chance of her having a Down syndrome child, she said she would have definitely terminated the pregnancy.[30]

    [30] T 77.

13. In August 2006, she engaged lawyers who wrote to the defendant in August 2006 notifying her of a potential negligence claim. She instructed Mr Mitchard in July 2006, who arranged her to sign an authority to allow her medical records to be released, to obtain a copy of the defendant’s practice notes, which were subsequently provided to her.

14. In a letter dated 2 January 2007 from Mr Gervasi to Dr Kaesehaegen, Mr Gervasi stated that his instructions were that she made it clear to the defendant that her last period was in August 2005. However, in evidence she said she could not remember whether she told the defendant that during the consultation or not.

    Associate Professor McBride

15. Associate Professor McBride is the Head of General Practice for the Sydney Medical School campuses and the discipline leader for General Practice in the Sydney Campus. She teaches medical students how to be general practitioners. Between 1981 and 2008 she worked as a self-employed general practitioner.

16. She prepared a report dated 7 January 2009[31] regarding the facts of this case. She also subsequently had a telephone conversation with the plaintiff’s legal representatives on 29 April 2009, from which notes were made.[32]

    [31] Exhibit P1.

    [32] Exhibit P1.

17. She accepted that her report had been prepared on the assumption that the patient had presented to the doctor with the desire to receive treatment in respect of two issues; asthma and irregular vaginal bleeding, at the beginning of the consultation.

18. She expressed the view that during a medical consultation it is the general practitioner’s role to manage the discussion, and identify the salient issues and address any associated ‘red flag’ symptoms the patient may mention. A doctor’s response will depend upon an assessment and evaluation of the information provided and a prioritising of the severity of discussed symptoms. By nature, consultations will evolve as patients will not always plan what they are going to divulge or in what order, often due to feeling sick, vulnerable and/or uncomfortable. Hence the general practitioner has the task of extracting the information provided which may be worthy of further investigation, and such information may be given at any stage of the consultation. In her opinion whether the information is provided at the beginning or end of the consultation is irrelevant when assessing the extent to which different symptoms need to be investigated.

19. In her opinion, the level of intellectual functioning of a patient will not necessarily correlate with their level of understanding during a medical consultation, or their subsequent compliance with the advice provided. All patients prioritise their medical health differently in relation to the other facets of their lives.

20. In relation to the consultation on 13 December 2005, Associate Professor McBride accepted that the prednisolone prescription provided to the plaintiff was appropriate treatment for the plaintiff’s asthma condition. She noted that asthma, which is at a level of such severity as to require an oral steroid, is a potentially life threatening condition. Leaving the issue of irregular bleeding to one side, she expressed the view that in the event a patient is prescribed prednisolone for the first time, a reasonably competent practitioner would be precise about arranging a follow up appointment within a week, if not sooner, to assess the patient’s response. Further, the patient should not be simply encouraged to book another appointment, but rather there should be a plan put in place to monitor the patient’s progress.

21. She accepted that different patients required different degrees of monitoring and ‘following up’, but that in any event, taking into account Mrs Molloy’s personal attributes, good practice would require a follow up appointment to be booked by the general practitioner at the end of a consultation where prednisolone had been prescribed for the first time.

22. She expressed the opinion that it was not appropriate medical practice for the defendant to have advised the plaintiff at the end of the consultation on 13 December 2005, that the plaintiff should arrange another appointment to see her, in the event her irregular bleeding persisted, at which time she could refer her to a gynaecologist.

23. She described two immediate ‘red flags’ that would have been raised in her mind: whether the patient was pregnant; and if she was not pregnant, whether the bleeding was related to a malignancy. She discussed a number of situations that can occur during the early stages of a pregnancy that results in vaginal bleeding. She discussed the possible relevant types of cancer as being vaginal, cervical and endometrial.

24. She accepted that if the plaintiff had raised the issue of irregular bleedings at the end of the consultation, the comprehensive list of matters she had recommended in her report, may be pursued, not have been appropriate, or possible.

25. In any event, by her assessment, a pregnancy test should have been undertaken on the same day as the consultation and further questions should have been asked. Such questions she expected a reasonable general practitioner would ask a patient who described irregular vaginal bleeding included: when it had commenced; the amount of bleeding; whether the bleeding was intermittent or constant; when her last menstrual period occurred; and whether she was taking or had taken the contraceptive pill in the past. Further, in relation to the potential issue of cancer, Associate Professor McBride stated that a reasonable general practitioner would have asked whether there was pain on menstruation, or whilst having sex, or during exercise.

26. She said a reasonably competent general practitioner would have asked questions to ascertain the immediate facts needed to ensure the patient was safe from any ‘red flag’ conditions, which in the context of this matter indicated pregnancy. Once pregnancy had been excluded, she would have arranged a short follow up consultation within the next couple of weeks in relation to the asthma and a longer appointment to discuss the gynaecological concerns at length.

27. She said it would not be appropriate to invite the patient to return in one, two or six months without clarifying a pregnancy status. She said it may have been reasonable to leave the situation for a month, had the patient told her she had recently had a normal period. However, in any event, she would have clarified with the patient, by asking her, as to the nature of the patient’s previous three cycles. She would not have relied on the plaintiff to volunteer relevant information in relation to her periods during the consultation, as in her opinion it is the general practitioner’s job to elicit further relevant information and to exclude any serious conditions that are possibilities.

28. Aside from a pregnancy test, if time permitted she would have performed an abdominal examination after receiving the patient’s consent. She would have discussed with the patient that in such circumstances it was not absolutely necessary to undergo a vaginal examination, but she would have advised they did.

29. She said pregnancy tests can be performed easily, either via a urine test or by taking blood. She estimated a urine pregnancy test would take between two to three minutes to be performed. She would only refer a patient to a gynaecologist within six to eight weeks after a consultation, if she had ascertained that pregnancy was not part of the equation.

30. She accepted that if the plaintiff had told the defendant that she had had her last period in December 2005 that, it would have been reasonable practice for the defendant to have organised a follow-up appointment in two to three weeks, but that she would have enquired about her three previous cycles in any event at the consultation. She referred to an article from the Australian Doctor Weekly by Family Planning educators which confirmed the notion that even when a period has been ascertained as being within four weeks, if there is then irregular or abnormal vaginal bleeding, a pregnancy test should still be performed.

31. She also accepted that the reasonable starting point for a general practitioner consulting a 48 year old woman who is complaining of irregular periods, would be perimenopause. She was not aware of a guide as to when menopause begins and ceases, but said rather that it varies from person to person.

32. She said it would be particularly important to establish the gestational age of the pregnancy in a woman aged 48, as she has a higher chance of chromosomal problems resulting in abnormalities in the foetus, of miscarriage and of illness throughout the pregnancy. Other possible causes of the bleeding she mentioned a reasonable general practitioner should have considered included an ectopic pregnancy, a thyroid deficiency, and uterine fibroids.

33. Of all the potential conditions arising from a patient complaining of irregular bleeding, she expressed the opinion that the most significant potential condition a reasonable general practitioner should have considered was whether the plaintiff was pregnant. She also accepted that the possibility of a 48 year old presenting with the symptoms complained of by the plaintiff being pregnant is very low.

    Dr Kaesehagen

34. Dr Kaesehagen completed a Bachelor of Medicine and a Bachelor of Surgery at the University of Adelaide in 1970. She has practised as a general practitioner since that time. A considerable amount of her consulting has involved advising women who are either pregnant, or undergoing perimenopause or menopause. Dr Kaesahagen prepared reports in relation to this matter, dated 10 January 2007, and 11 November 2010.[33] In her report dated November 2010, she agreed with the opinions expressed by Associate Professor McBride in January 2009. When preparing her reports, she referred to the defendant’s clinical notes in respect of the consultation of 13 December 2005. From those notes, she assumed the plaintiff had come to the defendant at the outset seeking treatment of her asthma condition. She accepted that the defendant had mentioned in her notes that the plaintiff had also sought advice for irregular bleeding. She could not determine at which point in the consultation that advice was sought.

    [33] Exhibit P1.

35. She agreed with Associate Professor McBride, that the defendant’s decision to physically examine the plaintiff with a stethoscope and subsequently prescribe the plaintiff prednisolone for her moderately severe asthma symptoms was a reasonable one. She expressed the opinion that it would have been appropriate in the circumstances to give some advice in relation to the nature of the prednisolone as a drug and how it should be taken.

36. During cross-examination, she accepted that although she agreed with the report prepared by Associate Professor McBride, what was included in that report as having needed to be done in terms of a full gynaecological history, a pregnancy test, a physical examination etc, would not have been physically possible had the issue of irregular bleeding been raised at the end of the consultation. Further she stated that she would not have done an internal examination even if time permitted, due to the risk of precipitating serious internal bleeding. She expressed the opinion that, had a patient told her she was suffering from irregular bleeding, to such an extent that she required the use of panty liners, regardless of any time constraints that may have existed, she would have made inquiries as to: the nature of the irregularity, when the patient had her last two periods; whether they were normal; whether the irregular bleeding was similar to her last period, or lighter or heavier; and whether contraception was being used. She would have made notes about those enquiries. Further, she believed it would be consistent with the standard of care of a reasonably competent general practitioner, at that time, to have a pregnancy test performed. She was trained to take the view that a woman of reproductive age has the possibility of being pregnant until proven otherwise.

37. Advising such a patient to return in a few months time, in her opinion, would not be appropriate advice. She agreed with Associate Professor McBride’s opinion that in a case of a 48 year old woman, given the increased likelihood of chromosomal abnormalities, it would be particularly important to establish the gestational age of the foetus. In relation to arranging a follow-up appointment, it is her practise to make diary notes about patient’s problems, so that in the event she has relied on a patient to schedule a follow-up appointment and she does not hear from the patient, the patient will be contacted, and if there is still no response a registered letter will be sent to them.

38. Dr Kaesahagen accepted that given the circumstances, the most probable diagnosis was that the plaintiff was perimenopausal, but there were a number of other possible causes, already referred to in relation to Associate Professor McBride’s evidence. She accepted it would be very difficult to resolve the cause of the irregular bleeding at that first consultation, but did not resile from her belief that it was appropriate to have made basic inquiries about the nature of the bleeding during that consultation.

39. She accepted that had the plaintiff returned to the practise in January 2005 and undergone a gynaecological examination, including a pregnancy test, the pregnancy would have been discovered and at that gestational stage, a therapeutic termination could have been performed.

    Mr Molloy

40. Mr Molloy said that he had been in a relationship with the first plaintiff since about October 1999 and married in 2002. They had travelled together to Hong Kong in August 2005. Upon returning Mrs Molloy had made a complaint about occasional pain she was suffering, saying that she felt that she had sore ovaries.

41. He recalled that Mrs Molloy was to graduate on 17 December 2005 and obtain her Masters degree in education. In the days leading up to that time she was suffering bad asthma. He became aware that Mrs Molloy had consulted her general practitioner but could not remember any details of the consultation.

42. He said that from the time of the graduation he had not noticed any changes in Mrs Molloy’s physical appearance, and did not become aware that she was pregnant until she had undertaken a pregnancy test.

    Ms Unterweger

43. Ms Unterweger had known Mrs Molloy for some eight or nine years at the time of trial. They walked together. She recalled that Mrs Molloy had travelled to Hong Kong in 2005. They continued walking after that trip. She said that she recalled Mrs Molloy saying that she was not feeling well, and that she thought that she may have picked up some illness from the school.

44. Ms Unterweger said that at some time after the return from Hong Kong, and before the end of the year, Mrs Molloy had said something about her periods, about the consultation with her general practitioner, and about her belief as to the nature of her condition following that consultation.

45. Ultimately I am of the view that neither the evidence of Mr Molloy, or of Ms Unterweger, are of assistance in determining the issues in this matter.

    The Defendant’s Witnesses

    Dr El Masri

46. Dr El Masri’s qualifications were set out in her CV.[34] She obtained her primary medical qualifications in Egypt in 1983 and practiced in Egypt until coming to Australia in 1988, where she undertook the additional study required to have her qualifications recognised. That process was completed in 1997. She then practiced in Keith in rural South Australia until 2002. She is accredited for shared obstetric care of public health patients.

    [34] Exhibit D9.

47. Dr El Masri said that Mrs Molloy attended the Southern Clinic on 13 December 2005 for a consultation. Mrs Molloy reported to Dr El Masri that she was experiencing a cough and shortness of breath, and that her puffer was not helping her. After an examination, Dr El Masri came to the conclusion that Mrs Molloy had exacerbated asthma. Dr El Masri prescribed 25 mg of Prednisolone. Dr El Masri told Mrs Molloy to return in three days so she could listen to her chest to make sure she was improving and if Mrs Molloy had any concerns, to then come back and see her.[35]

    [35] T 306-313.

1. Dr El Masri said that as the consultation ended, Mrs Molloy asked about the symptoms of menopause. Dr El Masri replied, “We don’t know when or what age the menopause start and finish.” Dr El Masri proceeded to tell Mrs Molloy the symptoms of menopause, which included, “hot flushes, night sweat, mood swing, dryness of the vagina… [and] irregular periods.”[36] Mrs Molloy then interrupted Dr El Masri and said, “It is menopause. I’ve been having irregular bleeding and now I’m 48 years old and I’m wearing panty liner most of the time because I don’t know when I’m going to bleed.”[37]

   [36] T 313-314.

   [37] T 313, 328.

2. Dr El Masri told Mrs Molloy that it might not be menopause and it could be something else but they would have to investigate later. Dr El Masri said she thought there was more of a gynaecological reason for the abnormality of the bleeding. Dr El Masri said she believed Mrs Molloy was still menstruating but having other bleeding in between because of the way Mrs Molloy presented her case.[38]

   [38] T 315, 318.

3. Dr El Masri conceded, by her defence that she was aware that the plaintiff was married, could infer she was sexually active, and knew that the chosen method of contraception was condoms. I infer that Dr El Masri was aware that condoms had a not insignificant failure rate, as Professor Michael confirmed in his evidence.

4. Dr El Masri said she did not turn her mind to the possibility that Mrs Molloy might be pregnant because Mrs Molloy had requested information about menopause. She said Mrs Molloy directed her that she was having regular periods and bleeding in between. This is why Dr El Masri’s mind was directed towards a gynaecological reason for Mrs Molloy’s irregular bleeding rather than an obstetric reason.[39]

   [39] T 315-316.

5. Dr El Masri said irregular periods with bleeding in between may have been caused by fibroid, cervical polyp or a hormonal imbalance. Dr El Masri said she “would have” mentioned some of these causes to Mrs Molloy. Dr El Masri also said she thought cancer may have been a cause but she would not have mentioned this to Mrs Molloy for fear of frightening a patient. Dr El Masri would probably have investigated if it was cancer, and if it turned out to be cancer, then she would have let the patient know.[40] Dr El Masri agreed that there may have been other reasons for a patient presenting with irregular bleeding between periods, other than menopause, but it depended on how a patient presented their case.[41]

   [40] T 316.

   [41] T 316, 328.

6. Dr El Masri said she told Mrs Molloy to come back in a month’s time if her symptoms persisted or if she had any other concerns. Dr El Masri also mentioned referral to a gynaecologist. Dr El Masri thought Mrs Molloy may have needed to see a gynaecologist, if she came back, because the potential causes would have to be investigated.[42]

   [42] T 317, 364.

7. Dr El Masri said she mentioned to Mrs Molloy, a one month time frame to come back and see her because she always gave her patients “who are pregnant with a gynaecological problem”, another cycle, which is usually 28 days, to see if anything was going to correct itself or to see if the change was going to stay there.[43] Dr El Masri did not record the advice she said she had given Mrs Molloy to return in one month, in her notes.[44]

   [43] T 317, 328.

   [44] T 366.

8. Based on Mrs Molloy’s description of her symptoms, Dr El Masri thought the likely explanation was menopause but that was not definite. This is why she wanted Mrs Molloy to come back if the problem continued.[45]

   [45] T 317-318.

9. Dr El Masri could not recall whether she asked Mrs Molloy when her last period was. Dr El Masri said Mrs Molloy did not say that she had missed a period because every time Dr El Masri asks a patient about their last period, her practice was to record the date of the patient’s last period on her notes.[46]

   [46] T 319.

10. Dr El Masri said the most common symptoms one might normally expect a pregnant woman to report was amenorrhoea (no period), sore nipples or breasts, nausea, urinating more frequently, constipation and weight gain. Mrs Molloy did not report any of these symptoms to Dr El Masri during the consultation. Dr El Masri did not ask Mrs Molloy about the symptoms of pregnancy. Dr El Masri explained that she was not thinking about obstetric causes for Mrs Molloy’s irregular bleeding because of the way the conversation was directed by Mrs Molloy.[47] Dr El Masri said she believed Mrs Molloy was still having regular periods and bleeding in between the periods, and that is why Mrs Molloy requested information about menopause.[48] Dr El Masri did not think Mrs Molloy had missed a period or was pregnant.[49]

    [47] T 319-320.

    [48] T 320, 327.

    [49] T 365.

11. I find that there was no basis for Dr El Masri to make an assumption that Mrs Molloy was still having regular periods. I reject Dr El Masri’s evidence that she told Mrs Molloy to return in one month if the symptoms persisted. Dr El Masri had not turned her mind to the possibility that Mrs Molloy was pregnant. Mrs Molloy was not a patient “who was pregnant” although I allow for the possibility that Dr El Masri intended to say in evidence that she had adopted such a usual practice for patients who were pregnant, or had gynaecological problems.

12. In any event, I accept Mrs Molloy’s evidence that Dr El Masri told her to return in six months.

13. Dr El Masri said if Mrs Molloy had come back to see Dr El Masri in a month and reported that the irregular bleeding had persisted, then Dr El Masri would have conducted an investigation which would have included a vaginal examination, a pregnancy test, a blood test, a pap smear, and a pelvic ultrasound.[50]

    [50] T 320.

14. It seems to me that a proper consultation by the defendant either at the consultation in question, or if time did not permit, shortly thereafter, would have inevitably elicited the information that the irregular vaginal bleeding had persisted for some months. Accordingly, the investigations which should have proceeded, either at or very shortly after the consultation on 13 December 2005, consistent with Dr El Masri’s own evidence as to what she would have done if the irregular vaginal bleeding persisted for one further month, included a vaginal examination, a pregnancy test, a blood test, a pap smear and a pelvic ultrasound.

15. On 14 December 2005, Mrs Molloy was seen by Dr El Masri’s colleague, Dr Coulthard, for her asthma. On 26 April 2006, Mrs Molloy returned for a consultation with Dr El Masri. Dr El Masri said Mrs Molloy was distressed and upset as Mrs Molloy thought she was pregnant. Dr El Masri performed a urine pregnancy test on Mrs Molloy and the results were positive. Dr El Masri spent a majority of the consultation counselling Mrs Molloy as Mrs Molloy was very upset and crying about the pregnancy. At the time, Dr El Masri did not turn her mind to the December 2005 consultation with Mrs Molloy because Dr El Masri did not think Mrs Molloy was pregnant back then, and that Mrs Molloy was not that advanced in her pregnancy.[51]

    Cross-examination

    [51] T 322-323.

16. During cross-examination, Dr El Masri agreed that it was essential to work out whether a complaint was obstetric or gynaecological if a 48 year old woman was complaining of irregular bleeding and Dr El Masri may or may not have been able to do that at the instant consultation.[52]

    [52] T 326-327.

17. Dr El Masri could not recall whether she had inquired as to: the bleeding Mrs Molloy was complaining about; or inquired when the bleeding might have started; or about Mrs Molloy’s last menstrual period and previous several menstrual periods, including the timing of Mrs Molloy’s last menstrual period.[53] Dr El Masri did not inquire as to how often Mrs Molloy changed her panty liner.[54] Dr El Masri agreed that it might have been important to ask how often Mrs Molloy changed her panty liner to determine the extent and frequency of the irregular vaginal bleeding.[55]

    [53] T 329, 331-332.

    [54] T 333.

    [55] T 333.

18. Dr El Masri said, asking a patient when bleeding had commenced was not going to guide her anywhere because she was still going to think of gynaecological causes for Mrs Molloy. Dr El Masri said it was not very important to ascertain that information in Mrs Molloy’s situation.[56]

    [56] T 330.

19. Dr El Masri agreed with the views expressed by Associate Professor McBride and Dr Kaesehagen that it would be important to make inquiries as to two or three previous menstrual bleeds which is why Dr El Masri asked Mrs Molloy to come back for further investigation. Dr El Masri would have made those inquiries if Mrs Molloy had come back in a month’s time and told Dr El Masri that she was still having irregular bleeding.[57] 

    [57] T 332.

20. Dr El Masri said that when a female patient presents at the surgery she records information that the patient is spotting, bleeding, flooding or having any clots, according to what the patient tells Dr El Masri. Dr El Masri said she believed Mrs Molloy was a very well-educated woman and would have told Dr El Masri if she was spotting or bleeding because there is a difference between the two. Dr El Masri said she was relying entirely on the patient’s own description of the nature and extent of the bleeding.

21. Dr El Masri agreed that the reason for irregular bleeding and wearing a panty liner most of the time, for someone at the age of 48, could have been a variety of conditions including both obstetric and gynaecological. Some of these gynaecological reasons are serious and others inconsequential.[58] Dr El Masri said, to her knowledge, if she had asked the patient to return after one month, then it would be enough to conduct any necessary investigations in relation to any gynaecological causes.[59]

    [58] T 336.

    [59] T 336.

22. Dr El Masri agreed that a pregnancy in a 48 year old woman is potentially a serious matter including, in terms of, social issues, maternal health, and a serious risk of Down syndrome.[60] For that reason, if there was any prospect of pregnancy, a prompt and accurate diagnosis was important[61] from the perspective of a patient’s candidacy for a therapeutic abortion and because of the high risk of Down syndrome.[62]

    [60] T 336.

    [61] T 337.

    [62] T 337.

23. Dr El Masri accepted, in hind sight,[63] that on 13 December 2005, she did not have enough information to exclude an obstetric explanation for Mrs Molloy’s complaints of irregular bleeding and wearing a panty liner most of the time.[64] However, notwithstanding that, Dr El Masri’s mindset was that Mrs Molloy had gynaecological issues and Dr El Masri assumed she had enough information to exclude an obstetric cause at that time as she had in her mind that Mrs Molloy was having regular periods but bleeding in between.[65]

    [63] T 375.

    [64] T 337.

    [65] T 337, 375-376.

24. Dr El Masri did not ask the plaintiff whether she was experiencing any pain or had any pain in her ovaries.[66] Dr El Masri said if a patient was presenting with ectopic pregnancy, the pain would persist and the patient would seek advice about the pain; the pain would probably be the first complaint of the patient more than the bleeding.[67] Dr El Masri accepted that an ectopic pregnancy is or could be a life threatening condition because of the risk of a haemorrhage, and the existence of an ectopic pregnancy is best diagnosed at the first available opportunity.[68] Dr El Masri said a pregnancy test would show positive in an ectopic pregnancy.[69]

    [66] T 338-339.

    [67] T 339.

    [68] T 339.

    [69] T 339-340.

25. Dr El Masri agreed that irregular bleeding could have been a sign of threatened miscarriage or an early sign of a threatened miscarriage.[70]

    [70] T 340.

26. Dr El Masri reiterated that she believed that Mrs Molloy was having regular periods. Dr El Masri could not recall the word that Mrs Molloy said but that was how Dr El Masri’s mind was set.[71] Dr El Masri agreed that she did not record this in her notes.[72]

    [71] T 341.

    [72] T 341.

27. Dr El Masri agreed that the description she had recorded in her notes, “Irregular bleeding now in a 48 year old and wearing panty liner most of the time” could be explained by a threatened miscarriage and that required investigation, including inquiring when the patient’s last menstrual cycle was.[73] Dr El Masri agreed that threatened miscarriage is a distressing and can be a traumatic experience for a woman.[74]

    [73] T 341.

    [74] T 342.

28. Dr El Masri said there is no medical treatment “to prevent threatened miscarriage to continue to complete miscarriage.”[75] Dr El Masri said the advice she gives is to tell the patient that they have a threatened miscarriage at the moment and there is no medical treatment she can give the patient and that the situation might proceed to a complete miscarriage. Dr El Masri said if that happened, then the patient could not do much more than rest. Dr El Masri said she does not tell the patient to rest, but rather to “continue their life like normal” and like any other pregnancy, to not carry any heavy lifting and the like, which was usual procedure with pregnancies.”[76]

    [75] T 344.

    [76] T 344-345.

29. Dr El Masri agreed that an explanation for irregular menstrual bleeding requiring the wearing of a panty liner could be cancerous in origin.[77]

    [77] T 346.

30. Dr El Masri agreed that her notes indicated that approximately 12 months prior to December 2005; Mrs Molloy’s had a pap smear. A pap smear in Australia is once every two years but only assists in the diagnosis of cervical cancer. A pap smear does not exclude cancer of the uterus and cancer of the fallopian tube. Dr El Masri said cancer of the reproductive organs was a gynaecological issue and the prospect of a patient having cancer is an important matter because that might be fatal.[78]

    [78] T 346.

31. Dr El Masri conceded that she did not ask Mrs Molloy questions about persistent pain which is a symptom of cervical and other cancers of the reproductive system.[79] Dr El Masri further conceded that she did not ask Mrs Molloy about whether she had any sort of injury to her vagina or internal reproductive organise. Dr El Masri did not take Mrs Molloy’s temperature. Dr El Masri said she did not have a look because Mrs Molloy was asking her about the symptoms of menopause and that is why Dr El Masri told Mrs Molloy to return in one month. Dr El Masri would have done those check-ups then.[80]

    [79] T 347.

    [80] T 348.

32. Dr El Masri agreed that if there was an infection to the vagina or in some way to the internal reproductive organs, and the patient was left for review in a month’s time, that may cause the patient significant discomfort and distress, which may have been ameliorated by appropriate and prompt treatment.[81]

    [81] T 349.

33. Dr El Masri said she had pregnancy tests in the surgery and agreed that pregnancy tests are easy to do.[82] She agreed that pregnancy tests sometimes give a false negative but more likely than not, are accurate.[83] Dr El Masri agreed that if she had obtained a positive pregnancy test, she would have taken an entirely different course of treatment and advice to Mrs Molloy. The advice would have included counselling about abortion and the risks of Down syndrome and testing for Down syndrome.[84]

    [82] T 350.

    [83] T 350.

    [84] T 350-351.

34. Dr El Masri said that she believed what she did on the 13 December 2005 consult was the best for Mrs Molloy and she would not have changed it because that is how the consultation was conducted and she believed Mrs Molloy had gynaecological causes to her symptoms.[85] Dr El Masri agreed that in coming to that professional view, she was entirely dependent upon what Mrs Molloy volunteered to say to her and that there were no questions that she put to Mrs Molloy to clarify or elaborate on the information that Mrs Molloy gave to her.[86]

    [85] T 353.

    [86] T 353.

35. When Dr El Masri was asked about whether she was entirely dependent upon what Mrs Molloy volunteered on 13 December 2005, Dr El Masri said she thought she asked some questions to Mrs Molloy but she could not remember.[87]

    [87] T 355.

36. Dr El Masri said she asked Mrs Molloy to return in three days time after giving her advice about prednisolone and the way in which Mrs Molloy should take that medication. However, Dr El Masri did not record that in her notes[88] because it was her routine practice, for any patient, that whenever she prescribed prednisolone, she would ask the patient to come back in three days time to assess the patient again and to see if the patient was improving. Dr El Masri said she would have also told Mrs Molloy that if there was any concern, then Mrs Molloy should come earlier.[89]

    [88] T 358. Exhibit P4, p 29.

    [89] T 355-356.

37. Dr El Masri said she tells the patient to make an appointment to see her again in three days time and patients will do that on their way out of the surgery. Dr El Masri said she usually makes the appointment for people who are elderly or have an intellectual disability as she cannot rely on them to make an appointment on their way out, but for anyone who is well-educated, she would be sure they would make the appointment.[90]

    [90] T 356.

38. Dr El Masri said she did not write a note to her staff along with the item number saying “appointment in three days time” for every patient.[91]

    [91] T 357.

39. The defendant conceded that her notes[92] did not record any reference to Mrs Molloy returning in three days in relation to the asthma issue. There is no suggestion in the evidence that the plaintiff made an appointment to return in three days time.

    [92] Exhibit P4.

40. Whilst it may be that nothing turns on it, I do not accept that the defendant told the plaintiff to return in three days time.

41. Dr El Masri said the purpose of clinical notes was to record: what the patient presented on the day for; to record information in a way that is clear enough for someone else, if they read the note, to know exactly what they have to do; what sort of medication or treatment was given to the patient; the outcome of the treatment including any changes in treatment; whether there is or should be a referral to a specialist; and in appropriate circumstances, a note as to when the patient should return.[93]

    [93] T 360-361.

42. However, Dr El Masri said that “every doctor has got a routine practice for certain illness and that’s why sometime we don’t write it down.[94]

    [94] T 361.

43. Dr El Masri’s notes from 13 December 2005, included the words “if symptoms persist” which she said in evidence she interpreted to mean Mrs Molloy was to return if the symptoms of irregular bleeding, wearing a panty liner most of the time, persist. Dr El Masri also said she usually says “or any other concern” but she did not record that.[95]

    [95] T 361.

44. Dr El Masri said she told Mrs Molloy to wait for another month and if the symptom persists or if there were any other concerns, then to come back. Dr El Masri did not tell Mrs Molloy to make an appointment in a month’s time when Mrs Molloy went to the reception desk.[96]

    [96] T 361-362.

45. Dr El Masri agreed that implantation bleeding was a condition associated with the implantation of a foetus which results in some vaginal bleeding during the first trimester.[97] It was put to Dr El Masri that implantation bleeding, more likely than not, will cease after about the end of the first trimester. In response, Dr El Masri said that was why she said “any concern,” so even if Mrs Molloy had amenorrhoea, Mrs Molloy would have returned.[98]

    [97] T 362.

    [98] T 362.

46. It was further put to Dr El Masri that if Mrs Molloy was pregnant and if the explanation for the irregular bleeding was implantation bleeding, and the bleeding had stopped, on the advice in Dr El Masri’s notes, there would be no reason for Mrs Molloy to come back.[99] Dr El Masri said that when she told Mrs Molloy, “If symptom persist or any other concern” this meant that even if the bleeding stopped, Mrs Molloy would not have had any more periods so Mrs Molloy should have come back as well.[100]

    Professor Michael

    [99] T 362.

    [100] T 363.

47. Professor Michael was in practice from the mid 1960s until about 2006, in both public hospital practice and private practice, which was both in obstetrics and gynaecology. He has since held positions in health care organisations and ministerial councils. Professor Michael has received numerous awards for his work in the medical field and became a Professor at the University of Western Australia during the 1990s.[101] As a Professor in obstetrics and gynaecology, Professor Michael had the responsibility of teaching and training medical students and ensuring the training programs for interns and trainees in obstetrics and gynaecology, as well as general practitioners in obstetrics and gynaecology, were adequate.[102] Professor Michael holds a number of appointments including a membership of the advisory board of the School of Medicine at the Notre Dame University and chairman of the curriculum committee at Curtin University.[103]

    [101] T 381-382.

    [102] T 382.

    [103] T 381-384.

1. Dr Joyner is a general practitioner in Mannum. In addition to his primary medical qualifications, Dr Joyner holds a diploma in obstetrics. From 1971 to 2000, he practiced as a GP obstetrician in Mannum.[177] He ceased obstetrics in 2000 as obstetrics ceased to be practised at Mannum due to a lack of midwives. Dr Joyner has since continued his general practice.[178]

   [177] T 475-476.

   [178] T 476.

2. Dr Joyner prepared two reports dated 14 April 2007 and 11 November 2010 and case notes from a conference with the defendant’s solicitor which took place on 6 August 2010.[179]

   [179] T 475. Exhibit D2.

3. By the time Dr Joyner wrote his second report dated 11 November 2010, he was of the belief that it was no longer being asserted that Dr El Masri was told that Mrs Molloy had had a period of amenorrhoea however, Dr Joyner’s opinion in relation to the adequacy of Dr El Masri’s management remained unchanged.[180]

   [180] T 479.

4. In the notes of the conference with the defendant’s solicitors he is recorded as saying that the history of Mrs Molloy given to Dr El Masri, provided no positive signs of pregnancy and that an intelligent, articulate woman who had three previous children should be familiar with changes to her body.[181] In response to Dr El Masri’s version of events of the consultation with Mrs Molloy on 13 December 2005, Dr Joyner expressed the view, as noted in his reports and conference notes,[182] that it was not necessary in this case, that a general pregnancy test be done. Dr Joyner said an evaluation of the bleeding needed to be done promptly and if a pregnancy test had been done as the sole investigation and management of the complaint and the patient was not pregnant, then Dr El Masri and Mrs Molloy would have possibly been reassured and that would not have helped Mrs Molloy if she had a malignancy of the uterus or some other area. Dr Joyner said Mrs Molloy’s situation regarding her irregular bleeding needed to be completely investigated and not in a piecemeal fashion.[183] Asking a patient to come back in a month for a full focused investigation and examination and then, if necessary, a referral, was the correct way to manage a woman with irregular bleeding. Dr Joyner said pregnancy was one cause but it was not the most dangerous cause as opposed to a malignancy of the vaginal or uterine area.[184]

   [181] T 480.

   [182] Exhibit D2.

   [183] T 483-484.

   [184] T 484.

5. Dr Joyner said irregular bleeding is an undifferentiated symptom and would not, to Dr Joyner’s mind, indicate either pregnancy or threatened miscarriage.[185]

   [185] T 485.

6. Dr Joyner did not consider Mrs Molloy’s irregular bleeding as being a “red flag”; a “red flag” symptom being one that warranted specific investigation because it could be a sign of a severe medical problem.[186] Dr Joyner said it was not a “red flag” symptom in the context of Mrs Molloy’s presentation or consultation and it was appropriate to offer Mrs Molloy a repeat consultation to assess the irregular bleeding.[187]

   [186] T 485.

   [187] T 485.

7. Dr Joyner said medicine intrinsically involves communication between at least two people. “Any time there is communication, there are plusses and minuses of communication, implications of words and the unseen words that [doctors] feel and interpret.”[188] Dr Joyner gave examples of a patient presenting as not having a period for three months and asking what was going on, as being a very direct question, as opposed to a patient presenting as having irregular bleeding and spotting and wearing a panty liner coming after a question about menopause; this was an entirely different communication component.[189]

   [188] T 485-486.

   [189] T 486.

8. Dr Joyner said if a female patient came to see him specially focused on assessing her irregular bleeding, then one would need to take a focused history very similar to that as outlined by Associate Professor McBride.[190]

   [190] T 486.

9. Dr Joyner assumed the irregular bleeding conversation between Dr El Masri and Mrs Molloy was mentioned as the consultation came to an end. Dr Joyner said that that was not a situation where a doctor could do investigations which included abdominal and vaginal examination with the consent of the patient, blood tests which could include pregnancy tests and hormone level tests, and a pelvic CT.[191] Those further investigations would be appropriate at a return consultation when the focus would be the investigation of the irregular bleeding.[192] Questions as to the extent, volume and frequency of the bleeding and the like, would be appropriate questions to ask at another consultation because an investigation into that complaint in less than a quarter of an hour, 20 minutes, would not have been a proper evaluation.[193]

   [191] T 486-487.

   [192] T 487.

   [193] T 511.

10. Assuming that Mrs Molloy was 13 weeks pregnant on 13 December 2005 and if she had come back in a month she would have been about 17 weeks pregnant, Dr Joyner said that in a normal woman pregnancy should be palpable at 16 to 17 weeks, and certainly detectable with vaginal examination.[194] If Mrs Molloy had come back when she was 17 weeks pregnant and Dr Joyner conducted a vaginal examination and palpated at 17 weeks, he would have to confirm or exclude that Mrs Molloy was pregnant because the commonest cause of a large uterus for a 48 year old woman would be fibroids of the uterus which are more common than pregnancy at that age.[195]

    [194] T 488.

    [195] T 489.

11. In the conference notes[196] Dr Joyner is recorded as saying that Mrs Molloy did not present with a problem relating to her periods, bleeding or menopause. Within the first few minutes of a consultation, there is an understanding of why the patient is there. In Mrs Molloy’s case, she was presenting with asthma or shortness of breath which was diagnosed as asthma requiring significant intervention and treatment. Dr Joyner’s assessment on viewing the notes was that Mrs Molloy asked about menopause, which was a thought that came to Mrs Molloy’s mind at the end of the consultation because the main focus of the consultation was on the examination and treatment of asthma and breathing.[197] Dr Joyner’s understanding of the consultation of Mrs Molloy, was that the consultation had finished and the item number was being written out and as Dr El Masri and Mrs Molloy went towards the door, the question of irregular bleeding was raised, which is different than if a person presents with two problems, raises one first then says “By the way, I’ve got a problem with bleeding, what do I do?”[198]

    Cross-examination

    [196] Exhibit D2.

    [197] T 490, 493.

    [198] T 494-495.

12. In response to whether it was the responsibility of the practitioner to ask questions about the nature and extent of the symptoms in the context of a patient volunteering certain information, Dr Joyner said everything was in the context of the illness of the patient at the time.[199] Further questions depended on the assessment of the benefits or otherwise of having to do something there and then, which would normally be focused on life-threatening situations, the potential for a range of causes and the need to evaluate things given the right time and right way.[200]

    [199] T 496-497.

    [200] T 497.

13. Dr Joyner agreed that pregnancy in a 48 year old woman was unusual, a life changing event and raised a whole lot of problems.[201] Dr Joyner agreed the problems may be from a social, economic and emotional perspective, which patients take seriously.[202]

    [201] T 499.

    [202] T 499.

14. Dr Joyner said the risk of having a child with Down syndrome was a concern for pregnant women of any age, but more so for women over 45 years of age.[203] Dr Joyner agreed that the chances of a Down syndrome child in a 48 year old woman is one in 14 and of other chromosomal abnormalities, one in 10.[204]

    [203] T 499.

    [204] T 499.

15. Dr Joyner said that any investigation in medicine is based upon the doctor’s assessment of what is likely to be occurring based on the information the doctor is given and the context with which it is given.[205] Dr Joyner accepted that patients cannot necessarily be relied on to understand and have insight into the nature and extent of the problem they might be suffering from. A patient is limited in what they can express by their background, experience, understanding and the sort of person they are.[206] Dr Joyner also agreed that although Mrs Molloy is a school teacher, that does not mean she would necessarily have insight into her medical condition. Dr Joyner said that is why, when a problem is presented, it has to be seen in context and a proper evaluation undertaken appropriately when organised.[207]

    [205] T 500.

    [206] T 500.

    [207] T 500.

16. Dr Joyner said the symptom of “irregular bleeding such as to require the wearing of panty liners most of the time” was 90 per cent, 99 per cent more typical of menopause than anything else and certainly in perimenopause.[208] Dr Joyner agreed perimenopausal women can and do become pregnant.[209]

    [208] T 501.

    [209] T 502.

17. Dr Joyner’s interpretation of the consultation was that Mrs Molloy was most likely to be perimenopausal but a doctor would want to exercise correct care by telling the patient to come back so the doctor can look at it properly as there could be other causes.[210]

    [210] T 502.

18. Dr Joyner said the phrase, “I’ve been having irregular bleeding and wear a pad” was not a phrase he had ever heard used in the early few months of pregnancy.[211]

    [211] T 503.

19. Dr Joyner said he would have told the patient to return sometime within the next month to address the patient’s bleeding problem. Dr Joyner agreed that telling the patient to come back after six months would be unreasonable.[212]

    [212] T 513-514.

    Submissions and Findings

20. The plaintiff submitted that in the event that s 41 of the Act did apply, the test in Rogers[213] remains the threshold test, and submitted that, even if the defendant had established the “widely accepted” defence, she had not satisfied the rationality criteria in s 41(2) of the Act.[214]

    [213] Rogers v Whitaker (1992) CLR 479.

    [214] Dobler v Halverson (2007) 70 NSWLR 151.

21. The defendant submitted that the expert evidence from Professor Michael, Dr Joyner and Associate Professor Watts was to the general effect that Dr El Masri acted in a manner that was widely accepted in Australia by general practitioners as competent professional practice. The Act specifically acknowledges that there may be differing professional opinions, and that that does not mean only one of those opinions can be relied on.[215] The Act also acknowledges the relevant opinion does not have to be universally accepted to be widely accepted,[216] and that there may be more than one correct opinion which is widely accepted.

    [215] Section 41(3).

    [216] Section 41(4).

22. The defendant submitted that Dr Kaesehagen was not able to assist the Court with the practice of other medical practitioners, and that her evidence was that she could only comment from the perspective of her own practice.[217] The defendant contended that, putting to one side the evidence of Dr Kaesehagen, the application of s 41 can be considered on the basis that one body of opinion is that evidenced by the opinion of Associate Professor McBride and another body of opinion is that evidenced by Professor Michael, Associate Professor Watts and Dr Joyner, and that the latter body of opinion cannot be regarded as irrational.

    [217] T 228 L 34.

23. Although the defendant was critical of Dr Kaesehagen’s knowledge of the practice of other general practitioners, Dr Kaesehagen did say:[218]

    In my practice I always take the view that a woman of reproductive age has the possibility of being pregnant until I have proven otherwise, and this was our training, really.

    [218] T 229.

24. I find that Dr Kaesehagen’s evidence was of assistance in assessing what was the appropriate response to the presentation by Mrs Molloy during the consultation of 13 December 2005. Dr Kaesehagen was a careful and thoughtful expert witness and I take her view into account, in that limited way, in assessing whether the defendant discharged her duty to the plaintiff.

25. The defendant submitted that it is not necessary to make a finding that the opinion of Associate Professor McBride was irrational to find the opinions of Professor Michael, Dr Joyner and Associate Professor Watts represent what general practitioners in Australia in 2005 regarded as reasonable. As already noted, the application of the statutory defence can proceed from the standpoint that both opinions were widely held in Australia in 2005.

26. The defendant contended that the resolution of a factual dispute in this case is not necessary for a finding that Dr El Masri is entitled to rely on s 41 of the Act, on the basis that Professor Michael, Dr Joyner and Associate Professor Watts all said, even on the plaintiff's account of the circumstances of the consultation of 13 December 2005, that a pregnancy test did not need to be performed, and all said that follow-up in one month was appropriate.[219]

    [219] Professor Michael T 427; Dr Joyner T 504; Associate Professor Watts T 472.

27. The defendant submitted that the evidence of Dr Joyner, Associate Professor Watts and Professor Michael, that review in one month after the patient had experienced another menstrual cycle was appropriate, should be accepted.

28. Indeed, whilst I accept the opinions expressed by Associate Professor McBride, and find 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, it may not be necessary to prefer one expert over another. I formed the view, on the basis of the expert evidence as a whole, that it was incumbent upon the defendant to elicit a full history, to conduct a thorough examination, and to perform the necessary tests.

    The Consultation

29. The plaintiff raised the issue of irregular vaginal bleeding, and the possibility of menopause at the consultation on 13 December 2005.

30. The defendant did not take a detailed history. In effect the defendant took no history. The defendant provided limited advice, effectively confirming in the plaintiff’s mind that her symptoms were attributable to menopause.

31. I reject the defendant’s evidence[220] that she said to the plaintiff, of the symptoms of irregular bleeding:

    It might not be menopause, it could be something else, then we have to investigate later.

    [220] T 315.

32. I reject the defendant’s evidence that she offered the plaintiff any alternative explanation for the symptoms of irregular bleeding, either generally by saying “it might be something else” or by mentioning any specific alternative causes.

33. I also reject the defendant’s evidence[221] that she did not turn her mind to the possibility that the plaintiff might have been pregnant on the basis that:

    She [Mrs Molloy] directed me that she was having regular period and bleeding in between, so that’s why my mind was directed toward gynaecological reason more than obstetric reason.

    [221] T 315-316.

34. I find that there was nothing said by the plaintiff to suggest that she was having periods, and whilst I accept that the defendant may have made that assumption, I find that she was not entitled to do so. Her failure to elicit information from the plaintiff may well be the reason she made that assumption, but that does not excuse her error.

35. The defendant accepted that at the conclusion of the consultation on 13 December 2005 she did not have enough information to exclude an obstetric explanation for the plaintiffs’ complaint of irregular bleeding.[222]

    [222] T 337.

36. Having regard to the nature of the potential conditions, including a condition of pregnancy, which were possible causes for the plaintiff’s presentation, and on the basis of the defendant’s own evidence, and that of the experts called on her behalf, a follow up appointment was necessary.

    The Need for a History, Examination and Testing

37. I find, and it is in effect common ground amongst all of the expert witnesses, that further time was needed for a proper investigation of the symptoms of irregular bleeding mentioned by the plaintiff. As I have said, if such time could not be made available on 13 December 2005, then it was incumbent upon the defendant to arrange a follow up appointment within a short time frame, and allow time to elicit a detailed history, conduct an examination, and perform such tests as may be required. The defendant’s failure to do so, of itself, in my view, constitutes a breach of her duty to the plaintiff.

38. When asked if telling a patient in the present circumstances to “return if symptoms persist” was sufficient Professor Michael said:[223]

    With someone in this age group with irregular bleeding, I would prefer to examine her, repeat her smear. Yes, that would be somewhat inadequate.

    [223] T 422.

39. The failure by the defendant to elicit information from the plaintiff as to the length of time for which the bleeding had been occurring renders the advice to the plaintiff to return, within whatever time frame, “if symptoms persist” ineffectual. Had she elicited even the most basic history, the defendant would have ascertained that the bleeding had been persisting. That simply reinforces my view that it was incumbent upon the defendant, in the discharge of her duty to the plaintiff, to arrange a follow up appointment to make time available to carry out the process of eliciting a detailed history, conducting an examination, and performing the necessary tests.

40. Professor Michael agreed that upon eliciting information from a patient that she was having irregular bleeding and wearing a panty liner most of the time, he would, at least at the follow up consultation, elicit a detailed history about the nature and timing of the bleeding, and conduct an examination. He said that the most important part of the consultation after the history is the examination, and he would not do an investigation unless he first examined the patient. He also said that he would, upon examination, had he done it at the time, or a week later, have discovered the 14 week pregnancy.[224]

    Follow Up Appointment

    [224] T 401-402.

41. 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.

42. Associate Professor Watts was asked whether he would have organised a follow up appointment. He said:[225]

    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.

    [225] T 455.

43. 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.

44. 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.[226]

    [226] See Tai v Hatzistavrou [1999] NSWCA 306.

45. In Kite v Malycha,[227] where the treating doctor did not see the results of a biopsy, and did not have a system to ensure results were received and brought to his attention, and did not follow up when the plaintiff failed to attend at a subsequent appointment, resulting in a late diagnosis of breast cancer, Perry J said:

    Mrs Kite's failures to ring him on 4 December or to attend for the follow-up appointment does not excuse the breach of the duty of care imposed upon him in that respect. Irrespective of any initiative taken by the patient, he owed a duty to find out what the outcome of the pathological examination of the fine needle aspiration was. As Mr Wells QC put it during the course of his address, it is “unreasonable for a professional medical specialist to base his whole follow-up system, which can mean the difference between death or cure, on the patient taking the next step”.

    [227] Kite v Malycha (1998) 71 SASR 321 pp 336-337.

1. Perry J cited the High Court’s decision in Rogers v Whitaker,[228] as to the nature of the duty of care owed by a medical practitioner in the following terms:[229]

   The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

   The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill. (citations omitted)

   [228] Rogers v Whitaker (1992) 175 CLR 470 p 483.

   [229] Kite v Malycha (1998) 71 SASR 321 p 337.

2. 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.

   What was the Arrangement for the Follow Up Appointment?

3. I accept the evidence of the plaintiff that Dr El Masri told her to return in six months, if the symptoms persisted.

4. The defendant submitted that Dr El Masri told Mrs Molloy to come back within one month if the bleeding continues, and Dr El Masri gave her reasons for allowing a one month time period; namely to have the patient go through another menstrual cycle.[230]

   [230] T 540.

5. The defendant submitted that I should accept Dr El Masri’s evidence that she said to Mrs Molloy, “Come back in a month”, and that if Mrs Molloy had come back in a month, she would have been 17 weeks pregnant and the palpation of the 17 week pregnant uterus would have elicited evidence of an altered state of the uterus.[231]

   [231] T 541.

6. As I have said, I reject the defendant’s evidence that she told Mrs Molloy to return in one month. Her notes do not say that, and as I have said, I accept the plaintiff’s evidence as to the conversation. Even on Dr El Masri’s own evidence, putting it at its highest, she said she told Mrs Molloy to return in one month, if the symptoms persisted, for referral to a gynaecologist.

7. Dr El Masri said in evidence that she would have told Mrs Molloy to make an appointment in three days to monitor the progress of Mrs Molloy’s asthmatic condition. There is no suggestion on the evidence that that appointment was made, or requested, or a note provided for that appointment to be made. Such an omission is consistent with, and reinforces my view that, whatever may have been Dr El Masri’s usual practice in relation to the patients presenting with pregnancy, or gynaecological conditions, or both, she did not in this case tell Mrs Molloy to return within one month.

8. Further, and although she was not cross-examined as to the content of the letter, the one month time frame within which Dr El Masri is said to have told Mrs Molloy to return was not referred to in the letter from Dr El Masri’s insurer forwarded to Mrs Molloy’s solicitors in December 2006, which said:[232]

   I am instructed that if your client had advised Dr El Masri that she had missed a period and then suffered irregular bleeding then she would have performed a pregnancy test. However in circumstances where your client had undergone a pap smear by her within 12 months of this presentation and given the very common nature of this presentation Dr El Masri believed the bleeding was likely to be hormonal and associated with menopause. In those circumstances she appropriately advised your client to return if the symptoms persisted.

   [232] Exhibit P12.

9. As the plaintiff points out, the first time any reference was made in correspondence from the defendant’s solicitors, of a suggestion that the plaintiff was asked to make an appointment “in about a month”, was in September 2010, after a number of letters had been sent without any reference to a time frame.

10. I agree with the submission made on behalf of the plaintiff that the defendant did not elicit sufficient information on 13 December 2005 to form an opinion, make any diagnosis, or communicate her views to the patient in sufficient detail for the information to be impressed upon the patient’s mind, or to enable the patient to make an informed decision as to the appropriate nature and timing of a follow up appointment. The defendant deprived herself of the opportunity of discharging her duty to follow up.

11. Dr El Masri formed the view that Mrs Molloy was perimenopausal and that there was no urgency about the matter. Mrs Molloy left the consultation with the understanding or belief that that was the case. Her understanding in that regard was reasonable, having regard to the way in which the consultation proceeded, and concluded. I accept that the plaintiff left the consultation on 13 December 2005 under the impression that her symptoms were explicable in terms of menopause or perimenopause, and that she was entitled to believe that there was no particular urgency about the need to return for a further consultation.

12. I agree with the plaintiff’s submission that whatever construction may be placed upon the defendant’s advice to the plaintiff to make a further appointment, the defendant took no action to ensure that the plaintiff attended such an appointment, and no action to follow up on the patient’s non-attendance. There was no evidence led that the defendant had either a formal or informal mechanism in place to facilitate follow up appointments by patients.

    Contributory Negligence

13. The defendant submitted that if the Court were to find that Dr El Masri breached her duty of care to the plaintiff, and that the defence provided to her by s 41 of the Act is not available to Dr El Masri, and that the plaintiff does not fail the causation test, then the Court should find the plaintiff guilty of contributory negligence, on the basis that she failed to tell Dr El Masri at the consultation on 13 December 2005 that she had not had a menstrual period since August 2005; she failed to return to Dr El Masri or see another medical practitioner for advice as she was asked to do, when her bleeding continued in January; she failed to seek advice from Dr El Masri, or another medical practitioner, when she did not experience her regular menstrual period; she failed to provide to Dr El Masri a complete history of her menstrual cycle; she failed to follow the advice of Dr El Masri that she would need to seek referral to a Specialist Obstetrician/Gynaecologist; and she elected not to seek medical treatment for her condition.

14. I make no finding of contributory negligence against the plaintiff. She had no reason to believe that she was pregnant. If the defendant did make some attempt to arrange for the plaintiff to return it was not sufficiently emphasised.

15. Even if, contrary to my finding, the plaintiff had been told to make an appointment in one month’s time if symptoms persisted, I do not consider that she should be regarded as having contributed to her own loss.

16. As Perry J observed in Kite v Malycha, of the failure there by the plaintiff to ring for results or attend for a follow up appointment:[233]

    … it is another matter entirely to characterise her failures to ring or to keep the appointment as evidence from which it would be right to conclude that she was guilty of contributory negligence.

    It is true that there are some cases where a medical patient has been held guilty of contributory negligence. I do not pause to go into the circumstances of those cases, as they are simply illustrative of the undoubted fact that general legal principles relating to contributory negligence are applicable in cases such as this.

    But each case depends upon its own complex of circumstances. Furthermore, I do not think that the courts should be quick to find contributory negligence on the part of patients who have put themselves in the hands of competent medical practitioners for advice and treatment.

    [233] Kite v Malycha (1998) 71 SASR 321 p 328.

17. As I have found, on the basis of the discussions during the consultation, as to the significance of the plaintiff’s symptoms, she was entitled to assume, and did assume, that her symptoms were explicable by reference to menopause or perimenopause. I do not consider that the fact that she did not make a follow up appointment, even had she been advised to make such an appointment within a month, constitutes contributory negligence on her part, such as to deprive her of a proportion of her damages. The defendant has failed to establish contributory negligence on the part of the plaintiff.

    Conclusion

18. I prefer 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. However even had I not done so, 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.

19. The defendant’s position, supported by the three expert witnesses called on behalf of the defendant, was that the risk of pregnancy was only one of many possible explanations or causes of the plaintiff’s symptoms of irregular bleeding. Each of the expert witnesses, in effect, said that it would not have been common practice in the context of the consultation described, to take a detailed history, or conduct a series of examinations and tests, to determine the cause, or to test for or exclude pregnancy as one of the causes.

20. However, each of the witnesses called on behalf of the defendant agreed that a detailed history should have been taken, and that, amongst other things, a pregnancy test, and examination for pregnancy conducted. Each said that such a detailed further consultation should have taken place within the period of one month or less after the consultation of 13 December 2005. Each said that had that happened, the pregnancy would have been detected, and detected within time to enable the plaintiff to undergo a therapeutic abortion.

21. In my view, it follows that upon being told of the symptoms of irregular bleeding, it was incumbent upon Dr El Masri to either obtain a full history, conduct the examinations and the tests, which, it is common ground, should have been conducted, either at the consultation of 13 December 2005, or in the event that time did not permit such procedures to be carried out at that time, to arrange an early appointment for that specific purpose.

22. As I have said, each of the experts called on behalf of the defendant agreed that a comprehensive range of tests should have been performed and a comprehensive history obtained. None suggested that doing so in a few months, or six months, was appropriate.

23. For example, as to the timing of the follow up examination Professor Michael said:[234]

    … But on clinical examination which should have been undertaken a week or two, or three weeks later would have demonstrated the enlarged uterus and therefore the issue of pregnancy would have arisen at that time, albeit somewhat advanced, but so is 14 weeks advanced. (my emphasis)

    [234] T 399.

24. The defendant did not make an appointment for Mrs Molloy to return. She did not instruct Mrs Molloy upon leaving, to make an appointment to return within one month. She did not provide a note to be taken to her receptionist, requesting that an appointment within one month be made, for Mrs Molloy to return. On whatever version is accepted, she left Mrs Molloy to decide whether she should return, depending upon the persistence of symptoms.

25. Dr El Masri conceded that the thought that Mrs Molloy might be pregnant, did not cross her mind. She did not provide advice that that was even a possibility. She did not form any diagnosis, much less a differential diagnosis.

26. She agreed, as did each of the experts, that irregular bleeding in a woman of Mrs Molloy’s age, might herald a range of different conditions, which required assessment and investigation. In such circumstances it was incumbent upon her to, if not elicit a detailed history and conduct examinations and tests at the time, because time did not permit, to arrange a follow up appointment within a short period of no more than one month, to enable the proper investigations to be carried out.

27. The defendant submitted, and I accept, that the evidence establishes that, had the plaintiff returned to see Dr El Masri within a month, the pregnancy would have been discovered at that time, and that that was still within the time that a therapeutic termination of pregnancy could have been carried out. That highlights that it was incumbent upon Dr El Masri to arrange a follow up appointment within that period of one month, in order to carry out the additional testing. She did not do so. As I have said, I find that she did not advise the plaintiff to return in a month if the symptoms persisted, and I find that even had she done so that was not a sufficient discharge of her duty to the plaintiff.

28. I find that the plaintiffs are entitled to damages for losses sustained as a result of the defendant’s negligence. For the reasons already articulated, I do not consider that the first plaintiff contributed to her own loss, and accordingly damages are not to be reduced by reason of contributory negligence.

29. I will hear the parties as to consequential orders.