Makaroff v Nepean Blue Mountains Local Health District

The appeal concerned a claim for medical negligence brought by the appellant, Ms Makaroff, against the Nepean Blue Mountains Local Health District (the first respondent) and Dr Percy (the second respondent). Ms Makaroff alleged that negligent treatment of her shoulder injury by the respondents led to a worse outcome than would otherwise have occurred. The primary issue was whether the respondents breached their duty of care to Ms Makaroff and, if so, whether that breach caused her injury.

The court was required to determine whether the failure to advise Ms Makaroff that it was essential and urgent to organise an orthopaedic review of her injured shoulder constituted a breach of duty. Furthermore, the court had to consider whether the respondents' conduct was in accordance with peer professional opinion, as contemplated by section 5O of the *Civil Liability Act 2002* (NSW). Finally, the court needed to assess whether, on the balance of probabilities, Ms Makaroff would have achieved a better outcome had the alleged negligence not occurred, specifically whether she would have consulted an orthopaedic surgeon and undergone surgery before her shoulder became inoperable.

The court found that while Dr Percy's actions did not fall below the standard of competent professional practice, the first respondent, through its hospital staff, had breached its duty of care. The reasoning was that the hospital staff failed to adequately inform Ms Makaroff of the urgency and necessity of an orthopaedic review, which was a crucial step in managing her shoulder injury. This failure was not excused by section 5O of the *Civil Liability Act 2002* (NSW) as the conduct was not widely accepted as competent professional practice in the circumstances. The court concluded that it was more probable than not that Ms Makaroff would have had a better outcome, including undergoing surgery earlier, had she been properly advised.

Consequently, the appeal against Dr Percy was dismissed, with Ms Makaroff ordered to pay his costs. However, the appeal against the Nepean Blue Mountains Local Health District was allowed. The judgment in favour of the first respondent was set aside, and judgment was entered for Ms Makaroff against the first respondent for $276,319.95, with the first respondent ordered to pay Ms Makaroff's costs at first instance and of the appeal.