Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107

A former patient has recently succeeded in a medical negligence action against the Nepean District Hospital (“the Hospital”) for the improper diagnosis of a shoulder injury. Ms Makaroff (“the Plaintiff”) was awarded a sum of $276,319.95 in damages on appeal. This case highlights the importance of seeking legal advice if you or your loved ones have experienced unsatisfactory care or poor health outcomes as a result of receiving medical treatment.

Establishing medical negligence

 A party (the defendant) can be found to be negligent if they fail to take reasonable care to avoid causing damage to another person (the plaintiff). In order to establish a claim for negligence, a plaintiff must address the following elements under the Civil Liability Act 2002 (NSW):

1. That a duty of care (to exercise due care and skill) between the plaintiff and the defendant existed;
2. That this duty of care was breached by the defendant;
3. That this breach caused the plaintiff (causation) to suffer injury or loss (damage); and
4. That this damage suffered was not too far-removed (remoteness) from the consequence of the

Each of these factors has been considered in greater detail in our previous article. The law of negligence is not straightforward, and highly dependent on the specific circumstances of the case.

There are also numerous defences which a defendant may establish in order to defer liability. For example, we have considered the dangerous recreational activity defence in a previous article regarding a case where a jockey was injured during a horse race. The Court in Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 considered this defence in the context of assessing the standard of care expected of medical professionals.

Case Study: Makaroff v Nepean Blue Mountains Local Health District

The Plaintiff was injured on 19 September 2010, when one of her horses bit her on her right forearm, which led to the dislocation of her right shoulder. An X-ray conducted at the hospital indicated that she had “moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency”. No ultrasounds or MRIs were conducted, and she did not receive an orthopedic review, prior to being discharged two days later. Neither the hospital or her GP advised the Plaintiff that she required an urgent radiological examination or orthopedic review. Based on this advice, the Plaintiff did not obtain an ultrasound until 3 February 2011, by which time it was too late for surgery to be effective.

In this case, the Plaintiff claimed that had she been properly diagnosed in a timely fashion, she would have undergone surgery and would have properly recovered the function in her arm. She alleged that the hospital and her GP breached their duty of care by their negligent treatment and sought damages for her pain, further injury and loss.

Decision in this case – considering duty of care and causation

 The Primary Judge at first instance rejected the claim that the Hospital and her GP had breached their duty of care, as the Civil Liability Act 2002 (NSW) s 5O precludes liability of both parties as they acted in a manner that was ‘widely accepted in Australia by peer professional opinion as competent medical practice’ at the time it was provided. Additionally, the Primary Judge held that even if a breach could be established, there was no ‘causal link’ between the alleged breach and her subsequent injuries.

However, on appeal, the Court found that the hospital had in fact breached its duty of care to the Plaintiff. Experts claimed that a competent professional medical practice required the patient to be advised of the urgency of seeking an orthopedic consultation within 2-3 weeks of the injury. Judge Simpson also found that the hospital breached its duty of care by failing to refer the Plaintiff for radiological investigations when she presented symptoms which suggested the need for further investigation. The Court held that, but for the hospital’s breach, the Plaintiff would have undergone surgery by mid-November 2010 and there would have been a “very high degree of probability that she would have had a better outcome”.

As such, the hospital was held liable on appeal, and ordered to award the Plaintiff with $276,319.95 in damages. The appeal against the Plaintiff’s GP, however, was dismissed as the Court found that there was no breach of duty.

How Etheringtons Solicitors Can Help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of negligence matters, whether you are the injured party or a professional.

If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.