An appeal by a medical practitioner was allowed, with a retrial ordered, in El-Masri v Molloy [2015] SASCFC 63. The claim arose from a discussion between a patient and a doctor about menopause, advice about returning for review and ultimately determination that the patient was pregnant at too late a point for termination of the pregnancy. The child was affected by Down syndrome.

On appeal the court held that:

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

2. The Judge failed to make findings about the context in which the conversation about menopause and the topic of irregular bleeding arose – essential to make such findings in order to properly assess the expert medical opinion and make definitive findings pursuant to s 41 of the Civil Liability Act 1936 (SA).

3. The reasons are not underpinned by a reasoning process linking and justifying the findings made.

4. The Judge failed to make a definitive finding regarding s 41 of the Civil Liability Act 1936 (SA).

5. The finding of negligence for failing to have a system of follow up was based on a ground of negligence not pleaded.

Section 41 of the South Australian civil liability legislation provides that jurisdiction’s version of the peer opinion defence. At [65] the court (per Blue J, with Kourakis CJ agreeing) observed:

The onus of proof of negligence lies upon a plaintiff and for this purpose the standard of care is that of a reasonable person in the defendant’s position knowing what the defendant knew or ought reasonably to have known. By way of contrast, it is a defence available to a professional service provider in respect of which the onus of proof lies on the defendant to establish that the defendant acted in a manner that was widely accepted in Australia by members of the same profession as competent professional practice.

At [67] and also at [236] and [239] the court held that in analysing the opinions expressed by the medical experts, the Judge did not separate his analysis of the issue of widely accepted practice  from his analysis of the issue of negligence. It was necessary to analyse the two issues separately.

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