A Sydney hospital and general practitioner (“the defendants”) successfully defended a claim for damages by a former patent who suffered severe right shoulder injuries from a horse bite, on the basis that they acted in accordance with peer professional opinion and were entitled to rely on the defence under s5O of the Civil Liability Act 2002 (NSW) to defeat the claims against them.
In Issue
- Whether the defendants breached their duty to the plaintiff by failing to order imaging to identify a rotator cuff injury, failing to refer her to an orthopaedic specialist and/or failing to advise her how to properly care for her shoulder following the injury
- Whether, by virtue of the defendants’ failures, the plaintiff’s treatment was delayed such that she could no longer benefit from surgical repair
- Whether the defendants were entitled to rely on the peer professional practice defences under section 5O of the CLA
The Background
On 19 September 2010 the plaintiff’s right arm was dislocated by a horse bite. The plaintiff was savagely bitten by a horse she was feeding as she was attempting to push a hay biscuit through a steel gate. While the horse was biting her arm, it was also aggressively pulling it up and back. This pushed the top of the plaintiff’s humerus, where her upper right arm met the shoulder, forward and down onto her ribs. The force of the attack also caused the plaintiff’s head to hit the gate bar twice, and inflicted a small cut near the outer edge of her right eyebrow.
After the attack, the plaintiff was taken by ambulance to Hawkesbury Hospital where her dislocated right arm was replaced in its socket. She was then conveyed to the Nepean Blue Mountains Local Health District Hospital (Hospital) for plastic surgery in relation to the horse bite. The plaintiff was an inpatient at the Hospital from 19 to 21 September 2010. An x-ray taken on admission revealed no fracture, but did show a moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency. Later that day, the plaintiff consented to undergo plastic surgery on her right forearm. The following day, 20 September 2010, the plaintiff had an operation debriding the horse bite wound on her right forearm using a skin graft from her right thigh.
The plaintiff later commenced proceedings against the Hospital and her GP (defendants) claiming damages for failure to conduct appropriate tests and to provide adequate advice in relation to future treatment and care, which resulted in serious and permanent shoulder damage.
The Decision at Trial
In a very detailed and lengthy judgment, the Court noted there were significant factual disputes between the plaintiff and each defendant as to what advice was given to the plaintiff at various times. The plaintiff’s credibility as a witness was an important factor and the Court specifically noted that the plaintiff was a difficult witness and concluded that her evidence had to be treated with caution unless it was against her interests or corroborated by objective evidence. The evidence of hospital staff and the GP was accepted as reliable and honest.
A conclave of experts gave evidence as to accepted peer professional practices in the particular circumstances. It was not unanimous. The plaintiff submitted this meant the s5O CLA defence was not made out and that all that could be established was that there was a clear division of opinion between a group of orthopaedic surgeons and emergency physicians.
The Court assessed each allegation of negligence in light of the findings of each of the participants in the expert conclave and concluded that the hospital had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. The Hospital therefore made out its defence under s5O CL and was not liable in negligence to the plaintiff.
After analysing the conflicting factual evidence of the GP and the plaintiff about what was said and what happened at various consultations, the Court was satisfied that the GP had demonstrated that his care at every appointment with the plaintiff was to the standard accepted by peer professional opinion as competent professional practice.
Although it was not necessary to do so, the Court addressed and made findings on causation (because of delays in the public health system, the plaintiff would not have been able to undergo surgery for a significant period, so even if she had been referred for surgery immediately, it would not have taken place immediately and the outcome would have been the same); and contributory negligence (assessed at 15% for failing to take care and follow instructions given by both defendants). A limitation defence pleaded by the GP was unsuccessful.
Again, although it was not necessary to do so, the Court assessed general damages at 40% of a most extreme case, which amounted to $254,000.00. No damages were awarded for economic loss because the plaintiff had no real earning capacity before her accident, and she did not demonstrate that any reduction in her earning capacity due to her injuries actually caused any financial loss.
The plaintiff’s claim failed and judgment was entered for the defendants. The plaintiff was ordered to pay costs.
Implications for you
This case highlights the importance of clear and accurate records when defending a claim based on negligent medical treatment. In this case the Hospital was able to avoid liability because it could establish that it had acted in accordance with established peer practice. Although the conclave of experts was not unanimous in its opinion on every issue, it was sufficient to convince the Court that the Hospital had acted appropriately. It also highlights the importance of selecting experts who are capable of providing impartial, dispassionate testimony
Makaroff v Nepean Blue Mountains Local Health District [2019] NSWSC 715
