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Catholicism raised in medical negligence case

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Defence lawyers for a GP who missed diagnosing the pregnancy of a 48-year-old woman questioned the woman’s religious beliefs on abortion.

The line of questioning was considered by District Court Judge Rauf Soulio before he concluded the woman’s Catholic beliefs “would not have acted as a bar to her undergoing a termination of pregnancy”.

Therese Molloy, now 57, has won a negligence case against her GP after the doctor missed diagnosing her pregnancy.

Molloy had sued Dr Randa El Masri in relation to the pregnancy, that it was discovered so late it ruled out the option of therapeutic abortion and the resulting child was born with Downs Syndrome.

She has worked as a teacher in the Catholic school system since 1980.

During the seven day District Court trial before Judge Soulio in 2011, Molloy faced questions about her Catholicism and its impact on any decision to terminate an unwanted pregnancy.

“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,” Judge Soulio said in his decision published this week.

“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.”

Judge Soulio said he accepted that her religious views would not have acted as a bar to her undergoing a termination of pregnancy.

The court heard that Molloy consulted her GP in December 2005, complaining of symptoms of asthma, tiredness and of having emotional outbursts, and bleeding which had been going on for some months.

El Masri made a diagnosis of asthma and prescribed medication. El Masri provided Molloy with information about menopause and suggested she return for a further appointment if the gynaecological bleeding symptoms persisted.

Around four months later Molloy used a home pregnancy test, which was positive, and on 20 April 2006 consulted El Masri for further advice.

The court heard that El Masri confirmed the pregnancy and referred Molloy to a gynaecologist, and for counselling, as 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.

The child was born on 13 June 2006, with Down Syndrome.

In her submissions to the court, Therese Molloy alleged that had she known she was pregnant when she consulted with El Masri on 13 December 2005, she would have been able to undertake Down Syndrome testing, and would have exercised the option to terminate the pregnancy.

Molloy claimed damages in respect of the consequences of undergoing childbirth, and the increased costs of raising a child with Down Syndrome.

The court set about determining liability before making an interim assessment of damages, and in due course a final assessment of damages.

Molloy is a school teacher in the Catholic education system and worked on a full-time basis for many years before the birth of the child.

She told the court she is unable to return to full time teaching and will, in any event, have to limit the amount of work that she does, because she is the person in the best position to provide care to her child.

El Masri denied that she was negligent, and told the court that she exercised due care and skill appropriate to her position, in her examination, advice, treatment and supervision of Molloy.

The court considered evidence from a range of medical experts.

El Masri told the court she did not turn her mind to the possibility that Molloy might be pregnant because Molloy had requested information about menopause.

The GP had been in practice since obtaining her primary medical qualifications in Egypt in 1983 and additional studies when she came to Australia in 1988.

El Masri said she told Molloy to come back in a month’s time if her symptoms persisted or if she had any other concerns. The doctor, however, had not written that down in her case notes.

“I reject Dr El Masri’s evidence that she told Mrs Molloy to return in one month if the symptoms persisted,” Judge Soulio concluded.

“I accept Mrs Molloy’s evidence that Dr El Masri told her to return in six months.”

On 26 April 2006, Molloy returned for a consultation with El Masri, who performed a urine pregnancy test and the results were positive.

The case turned on the issue of the time between visits to the doctor.

“I find … that further time was needed for a proper investigation of the symptoms of irregular bleeding mentioned by the plaintiff,” the Judge said.

“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.

“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.

“I find that the plaintiffs (Mr and Mrs Molloy) are entitled to damages for losses sustained as a result of the defendant’s negligence. I do not consider that (Mrs Molloy) contributed to her own loss, and accordingly damages are not to be reduced by reason of contributory negligence.”

Therese Molloy’s lawyer told InDaily the family had no further comment to make.

The case has been adjourned for further submissions on the amount of damages.

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