A now 56-year-old woman from Adelaide who gave birth to a child with Down Syndrome in 2006 has successfully sued her doctor for failing to detect the pregnancy in time to abort the child.

In December 2005, the woman sought medical advice regarding symptoms including tiredness, emotional outbursts and breathing issues. Dr Randa El Masri provided the woman with asthma medication and information about menopause.

In April 2006, the woman took a home pregnancy test which confirmed that she was pregnant. She then saw a gynaecologist and a counsellor to seek an abortion but could not terminate the pregnancy because the foetus was aged 33 weeks – beyond the legal age for an abortion in South Australia of 28 weeks.

The woman subsequently commenced proceedings in Adelaide District Court for negligence against her GP seeking damages for the psychological, emotional and financial consequences of rearing a child with a disability and for the adverse impact upon her health for proceeding with the pregnancy at 48 years of age.

Dr El Masri denied the claim, arguing that she exercised “due care and skill appropriate to her position in her examination, advice, treatment and supervision of the Plaintiff”. She claimed that nothing indicated she should recommend a pregnancy test or conduct an abdominal or vaginal examination.

Dr El Masri claimed the woman contributed to any finding of negligence by failing to tell her about some of her medical history and for failing to heed the medical advice that she should return if the symptoms persisted.

The Judge hearing the case found for the woman, stating that Dr El Masri “did not provide advice that [pregnancy] was even a possibility. She did not form any diagnosis, much less a differential diagnosis”. The Court determined that Dr El Masri did not act in a manner that was widely accepted as competent professional practice, and that she breached her duty to the Plaintiff.

The matter has been adjourned ahead of an argument over how much Dr El Masri is liable to pay the woman in compensation.

For more information on Compensation matters or your legal rights generally, contact Brazel Moore Lawyers on (02) 4324 7699 to speak to a local Compensation Lawyer today.