Background
On 19 September 2010, Ms Makaroff (the Plaintiff) suffered a dislocated shoulder and a bite wound on her from one of her horses. She was taken to Hawesbury District Hospital (Hospital) for plastic surgery and later discharged. Her general practitioner (the GP) did not refer the Plaintiff for orthopaedic review or radiological examination until over four months later, at which point the Plaintiff’s shoulder injury could not be surgically repaired.
The Plaintiff brought an action against the Hospital and the GP alleging that the defendants each breached their duty of care to her by failing to order imaging to identify a rotator cuff injury, failing to refer her to an orthopaedic specialist, and failing to advise her as to proper care for her shoulder. The Plaintiff alleged that by reason of the defendants’ failures, her treatment was delayed to the extent that she could no longer benefit from surgical repair.
The primary judge found that both defendants could rely on the peer professional opinion defence and had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. Additionally, even if breach were established, the Plaintiff would have failed on causation because even if she had agreed to undergo surgery immediately, she would more likely than not have waited for the operation as a public patient.
The Plaintiff appealed the decision.
Outcome of Appeal
The appeal in relation to the Hospital was allowed, but the appeal against the GP was dismissed.
In relation to the Hospital, it was found to be proper professional practice that the Hospital advise the Plaintiff that it was essential that she have an orthopaedic review urgently. Although the Plaintiff had been told to see an orthopaedic surgeon, the evidence established that it was not conveyed to her that it was essential or urgent. The Hospital was also found to have breached their duty of care by failing to refer the Plaintiff for radiological examination. But for this breach of duty, the Plaintiff would have undergone surgery before it became unable to be surgically repaired, and therefore causation was established.
In relation to the GP, the evidence established that he acted in a manner widely accepted by peer professional opinion as competent professional practice. Therefore, the appeal against the GP was dismissed.
Implications
Where a widely accepted practice requires the importance or necessity of follow-up review or treatment to be communicated to a patient, advice which fails to communicate that message will be insufficient.
Additionally, there was some doubt raised over whether the Hospital was a “person practising a profession” to allow it to plead the peer professional opinion defence. Although the Hospital was a corporate personality, it was difficult to see how the Hospital was a “person practising a profession” although it may have been vicariously liable for the negligence. However, this was not addressed at the initial trial or appeal, and so the issue was left undecided.
To read the full case of Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107, click here.