Makaroff v Nepean Blue Mountains Local Health District is a recent NSWCA medical negligence decision.

Most of the decision involves a re-examination and somewhat surprisingly, a different conclusion as to liability on the part of the health service, with the CoA finding in the patient’s favour (by a 2:1 majority).   The majority found that hospital staff should have but had not impressed upon Ms Makaroff the need for her to seek orthopaedic advice about her shoulder injury with reasonable urgency.

The case is an interesting example of how, when causation depends on a series of steps having been taken to avoid harm, the plaintiff must prove that on a balance of probabilities all such steps would have occurred.  In this case, whether all of the steps that would have followed advice to urgently seek orthopaedic advice about her shoulder injury, leading to surgery before irreversible harm occurred.  Each step may be reasonably simple to prove on a balance of probabilities, but the combined chances of failing at one or other step may make this a significant obstacle.

Whilst the NSW peer defence provision (section 50 and 5P) is different from WA’s section 5PB, there are 2 interesting observations by Simpson JA, neither of which were concluded, given they were not necessary to found the decision or had not been addressed at trial.

The 2 issues of interest for WA lawyers in the area are:

  1. Identification of the odd limits, by the terms of section 5PB(2), to the obligation to warn about risks associated with proposed treatment;
  2. Whether a health service, as distinct from an individual doctor, can rely on compliance with a ‘widely accepted practice’ to defend claim.

In relation to the first, Justice Simpson noted the terms of section 5P did not sit comfortably with it applying to disclosure of a need for urgent orthopaedic treatment.  As such, subject to the 2nd point, if it was widely accepted not to express urgency, this may be an answer to such claim, even if otherwise unreasonable.

He made clear the issue remained live for further consideration in subsequent cases (see at [235] and [236]). He noted Basten JA in Ambulance Service of NSW v Worley [2006] NSWCA 102, suggested that ss 5O and 5P were intended to “maintain the dichotomy suggested in Rogers between a breach of a duty to give a warning or other information, and other forms of professional negligence.”

This is a recurrent and important issue.  The obligation on a health professional to provide information about treatment options and health issues extends far beyond disclosing risks of treatment.  For instance, to provide information about health risks of no treatment or other important information about a particular illness, including as to prognosis.  It is illogical if section 5PB means that peer accepted practice is not relevant to the first, but is relevant (potentially determinative) to the latter.

In relation to the latter point, this is an issue I raised in Lazarevski v NMHS and as in that case, Justice Simpson noted that the definition of a ‘person practising a profession‘ did not seem to extend to a health service (in Lazarevski, the North Metro Health Service was not, in my view, a ‘health professional‘ – as required for section 5PB to apply).  This is important, if anomalous.  The non-delegable duty owed by a health service may therefore require a different standard than that required of the health professionals it employs.  The latter may avoid liability if acting in accordance with widely accepted practice, whilst the former would not avoid liability if nonetheless the care was not reasonable.  It is accepted the circumstances in which this will make a difference of significance may be rare.