What happened
Makaroff dislocated her shoulder and suffered a bite wound in an incident involving a horse in September 2010; after the dislocation was reduced, she was transferred for treatment of the wound. The hospital recommended orthopaedic follow-up without sufficiently communicating its importance and urgency. Cost concerns and apparent improvement contributed to delay, and imaging in February 2011 revealed a substantial rotator cuff tear for which surgical repair was no longer a realistic option.
The issues
The questions were whether the hospital's advice met the required professional standard and whether proper advice would probably have led to a better outcome through timely consultation, imaging and surgery. Causation required examination of the whole sequence, including the patient's likely choices and prioritisation on a public hospital waiting list. The GP's conduct and the peer professional opinion defence under the Civil Liability Act 2002 required separate consideration.
The court's decision
Brereton JA and Simpson AJA allowed the appeal against the hospital's health district. The majority found inadequate advice about essential, prompt orthopaedic review and a probable better surgical outcome had that advice been given, and entered judgment against the district. The Court unanimously dismissed the appeal concerning the GP and ordered Makaroff to pay his appeal costs.
Understanding the figures
The operative historical award was AUD 276,319.95, effective from 14 June 2019. Simpson AJA's calculation used allowed damages of AUD 325,082.30 and the unchallenged 15% contributory negligence reduction. The district was ordered to pay trial and appeal costs, with 14 days' liberty to apply about costs, calculation of damages and interest; the award is not a statement of net cash received.
What this case shows
A recommendation to seek follow-up and an explanation that delay risks irreversible harm are different things. Here, language suggesting a routine check did not convey the need to investigate a potentially serious, undiagnosed injury promptly. The case also required proof of a probable better outcome across the entire treatment pathway, rather than compensation merely for a chance of improvement.
Why another case may differ
The decision does not make every delayed referral negligent. Hospital liability was a majority conclusion, while the GP succeeded on the advice he gave and the professional evidence concerning his conduct. Brereton JA found the hospital's s 5O defence inconsistent with the evidence and did not need to decide the application of s 5P, so the decision should not be treated as a comprehensive resolution of that provision.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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