A patient at Nepean District Hospital who suffered a shoulder injury has recently been awarded damages in the sum of $276,319.95 on appeal.

On 19 September 2010, Ms Makaroff injured her right shoulder and suffered a bite wound to her right forearm following an incident involving one of her horses. Later that day her shoulder was reduced under anaesthesia at the Hawkesbury District Hospital and she was then transferred to Nepean District Hospital.

Nepean District Hospital performed an x-ray on Ms Makaroff on the same day, finding, “moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency.” Despite this finding, they did not investigate further with an ultrasound or MRI, nor did she have orthopaedic review of her shoulder.

On 21 September 2010, Ms Makaroff was discharged from Nepean District Hospital to the care of her general practitioner.

Neither Nepean District Hospital, nor Ms Makaroff’s general practitioner, advised Ms Makaroff of the essentiality or urgency of an orthopaedic review or radiological examination of her shoulder. Because of this, Ms Makaroff did not undergo ultrasound examination of her shoulder until 3 February 2011, by which time, her shoulder injury was too far gone for surgical repair.

Ms Makaroff alleged that had her shoulder injury been promptly diagnosed, she would have undergone surgical repair within the relevant timeframe, which would more likely than not, have been successful.

At first instance, the primary judge 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.

However, on appeal the Court (Brereton JA and Simpson AJA; Macfarlan JA dissenting) found that Nepean District Hospital had breached its duty of care to Ms Markaroff. It was implicit in the expert’s view that competent 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]). The timeliness of the review therefore being a critical point. Simpson AJA separately found that Nepean District Hospital breached its duty to Ms Markaroff by failing, to refer her for radiological investigation at the outset (at [246]).

In relation to causation, it was found that but for Nepean District Hospital’s breach of duty, Ms Markaroff would have consulted an orthopaedic surgeon and undergone shoulder 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]).

The appeal in relation to Ms Makaroff’s general practitioner was dismissed.

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Turner Freeman have acted on behalf of numerous people who have suffered injuries that could have been avoided had they been appropriately investigated and treated in a timely manner.

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