In Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107, James Sheller SC instructed by Attia Lawyers and Consultants appeared for the appellant, Ms Makaroff, who claimed that she suffered injury and loss as a result of the negligent treatment she received from Nepean District Hospital (Hospital) and her general practitioner, Dr Percy. Ms Markaroff was successful in her claim against the Hospital for breach of a duty of care which caused her loss. Damages in the sum of $276,319.95, with effect from 14 June 2019 was awarded to Ms Markaroff. The appeal against Dr Percy was dismissed.
On 19 September 2010, Ms Markaroff suffered a dislocated right shoulder and a bite wound on her right forearm as a result of an incident involving one of her horses. She was taken to the Hospital for plastic surgery on the bite and was discharged on 21 September 2010. Post-discharge, the appellant was in the care of her general practitioner, Dr Percy. Neither the Hospital nor Dr Percy advised Ms Markaroff that it was essential for her to seek urgent orthopaedic review or radiological examination of her shoulder. Ms Markaroff was not informed of the need to undertake the necessary and urgent examination until 3 February 2011, by which time it was too late for her shoulder which suffered a significant rotator cuff tear to be repaired surgically. Ms Markaroff claimed that had she been advised to seek an urgent diagnosis, she would have done so promptly and sought surgically to repair her shoulder which would have produced a better outcome. Ms Markaroff claimed that the delay in diagnosis was attributable to breaches of duties by the Hospital and Dr Percy which caused her loss.
Harrison AsJ at first instance rejected Ms Markaroff’s claim on the basis that s 5O of the Civil Liability Act 2002 (NSW) precluded any liability on the part of the Hospital and Dr Percy as they had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. Her Honour further found that even if breach could be established, that breach did not cause Ms Markaroff’s loss.
On appeal, the Court of Appeal (Brereton JA and Simpson AJA; Macfarlan JA dissenting) found that the Hospital had breached its duty of care to Ms Markaroff. Expert evidence adduced established that proper professional practice required Ms Markaroff to be advised that it was essential for her to seek an urgent specialist orthopaedic consultation within two to three weeks of the injury (Brereton JA at [109], Simpson AJA agreeing at [247]-[248]). While Ms Markaroff was told by the Hospital and Dr Percy that she should see an orthopaedic surgeon, that advice was “at a general level that she ‘needed’ follow-up in respect of her shoulder” (Brereton JA at [124]). Simpson AJA separately found that the Hospital breached its duty to Ms Markaroff by failing, at the outset, to refer her for radiological investigation (at [246]).
With respect to causation, the Court found that but for the Hospital’s breach of duty, Ms Markaroff would have consulted an orthopaedic surgeon and undergone rotator cuff surgery by mid-November 2010. Had she done so, there would have been “a very high degree of probability that she would have had a better outcome” (Brereton JA at [203], Simpson AJA at [260]).
With respect to the liability of Dr Percy, the Court found that breach of duty was not established (Macfarlan JA at [77], Brereton JA at [84] and Simpson AJA at [262]) and that the question of causation did not need to be decided (Macfarlan JA at [80], Brereton JA at [84] and Simpson AJA at [262]).
