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Missed Fracture in the Emergency Department: Can You Claim in Victoria?

A fracture missed in an emergency department can support a claim in Victoria. What decides it is whether it should have been found at the time, and what the delay changed.

General information only — this article is not legal advice.

By , Paralegal · 9 min · Claim types · Published 26 Sep 2026

Yes, if the fracture should have been found at the time and the delay caused harm that an earlier diagnosis would probably have avoided. A fracture that could not be seen on the first X-ray is not, by itself, negligence in Victoria. Section 59 of the Wrongs Act 1958 (Vic) asks whether the emergency department acted in a way widely accepted in Australia as competent professional practice. The facts that most often raise that question are a fracture visible on the films but not seen, a radiology report identifying it that was never acted on, and discharge without imaging when the history called for it. You must then prove that finding it sooner would probably have prevented a non-union, a displacement, an operation or a lasting loss of function. Damages for pain and suffering also require a significant injury under Part VBA, which for most physical injuries means more than 5 per cent whole person impairment. Medical costs and lost income are not subject to that threshold.

What an expert asks Points away from a claim Points towards investigating
Could the fracture be seen on the first X-ray? Not visible even on later review, and the notes record why a fracture was considered unlikely Visible on the original films when a radiologist later looked at them
Was the radiology report acted on? The report was normal, or its findings were communicated and followed up The report identified a fracture after you went home and nobody contacted you
Was imaging ordered when it should have been? The history and examination did not call for imaging, and the reasons are recorded Sent home without an X-ray despite the injury, the pain or the findings on examination
Was follow-up arranged when suspicion remained? Splinted or immobilised with a review booked, as the guidelines describe No immobilisation, no review and no further imaging while symptoms continued
Did the delay change the outcome? The fracture was treated in the same way it would have been on the first day Non-union, collapse, displacement or surgery that earlier treatment would probably have avoided

These are the questions an independent expert works through. The table does not tell you whether you have a claim, and it is not medical information.

You may have been told on the night that it was a sprain or soft tissue injury, and learned weeks later that a bone was broken. That is distressing, and it is also a common starting point for this kind of enquiry. This page deals with the specific case of a fracture missed in an emergency department. For missed and delayed diagnosis generally, including cancer and heart conditions, see misdiagnosis and delayed diagnosis claims.

Is a missed fracture in the emergency department negligence?

Not automatically. The law judges the emergency department on what it knew and could reasonably have found out on the day, not on what later imaging showed.

Three sections of the Wrongs Act set the test. Section 48 says a person is not negligent in failing to take a precaution unless the risk was foreseeable, the risk was not insignificant, and a reasonable person in that position would have taken the precaution. Section 58 fixes the standard at what could reasonably be expected of a person with the relevant skill, as at the date of the alleged negligence and not a later date. Section 59 then protects a doctor who acted in a way widely accepted in Australia by a significant number of respected practitioners as competent professional practice. A court can decline to rely on that peer opinion only if it finds the opinion unreasonable, and it must give written reasons if it does.

In practice, an independent emergency physician or radiologist reads the triage note, the treating notes, the X-ray request and the images themselves. The question is whether competent practice, on that presentation, required something more: another view, a second look at the films, a splint and a review, or a scan.

Which fractures are most often missed in an emergency department?

Some fractures are well known to be hard to see on a first X-ray. The examples below come from published clinical guidelines and reviews. They are general examples, not a list of injuries that lead to claims, and nothing here is medical information about your own injury.

  • Scaphoid fractures of the wrist. The Royal Children's Hospital guideline says negative X-rays do not necessarily rule out a scaphoid fracture, especially where clinical suspicion is high, and that CT or MRI may then be obtained, or the wrist treated in plaster with early follow-up. It warns that a fracture through the waist of the scaphoid places part of the bone at risk of avascular necrosis, and that delayed diagnosis and non-union can lead to bone loss.
  • Hip fractures in older people. The Hip Fracture Clinical Care Standard of the Australian Commission on Safety and Quality in Health Care, aimed at people aged 50 and over, expects assessment at presentation to include relevant diagnostic imaging. It also expects surgery within 36 hours of presentation to the first healthcare facility. A hip fracture that is missed at presentation cannot meet that expectation.
  • Cervical spine injuries. The Royal Children's Hospital guideline for children uses the PECARN decision rule to guide imaging after blunt trauma. Where CT or X-ray findings are inconclusive, or symptoms or signs persist whatever the imaging shows, it says spinal precautions should continue and MRI or specialist consultation should be considered.
  • Fractures in young children. The Royal Children's Hospital guideline on tibial shaft fractures says toddler's fractures are often normal on the initial X-ray, and that radiographic evidence may only appear seven to ten days after the injury. A normal first film is therefore expected in some children. The question is usually whether follow-up was arranged, not whether the first film was read correctly.
  • Lisfranc injuries of the midfoot. A 2026 review in Translational Sports Medicine reports that up to one-third of Lisfranc injuries are initially missed. It says weight-bearing X-rays can show widening or malalignment even where non-weight-bearing images appear normal, and that delayed or inadequate treatment can result in arch collapse and post-traumatic arthritis.

A guideline is not the law. A court applies section 59, and a guideline is evidence of what competent practice looked like at the time. It carries more weight when it was in force on the day you were treated.

What if the radiology report found the fracture after you went home?

This is one of the clearer situations. An emergency doctor may read an X-ray at the time, with a radiologist issuing the formal report later, possibly after the patient has left.

The Australasian College for Emergency Medicine's Policy on Follow-Up of Results of Investigations Requested by Emergency Departments (P54, version 4, July 2023) states that clinicians in emergency departments must ensure that the results of investigations requested from that department are followed up within a clinically appropriate timeframe. It also states that a system must be in place for review of results that return after a patient has been discharged.

If the report identified the fracture and nobody recalled you, the issue is often a failure of the hospital's system rather than of one doctor's judgment. In a Victorian public hospital the health service is generally the defendant, which is explained in suing a Victorian public hospital. The radiology report, and any record of who saw it and when, is central evidence. How to get your medical records in Victoria sets out how to request it, together with the images themselves.

What if you were sent home without an X-ray?

Not every injury needs imaging, and a decision not to X-ray can be entirely reasonable. What the expert examines is the reasoning recorded in the notes: how the injury happened, where the pain was, what the examination found, and whether any accepted decision rule was applied.

If the notes record findings that pointed to a fracture and no reason for not imaging, section 48 becomes the focus. A court asks whether the risk was foreseeable and not insignificant, and section 48(2) directs it to weigh the probability and seriousness of the harm against the burden of the precaution, here an X-ray. If the notes record a careful examination with nothing to suggest a fracture, the peer professional opinion in section 59 is more likely to support the decision. Contemporaneous notes carry weight because they were written before anyone knew how things would turn out.

Would an earlier diagnosis have changed the outcome?

This is the question that decides many missed fracture claims, and it is separate from whether the fracture should have been found. Section 51 of the Wrongs Act requires the negligence to have been a necessary condition of the harm. Section 52 places the burden of proving causation on you, on the balance of probabilities.

The High Court held in Tabet v Gett [2010] HCA 12 that the loss of a less than even chance of a better outcome is not, by itself, damage the law compensates. So the expert question is specific. Had the fracture been diagnosed on the first visit, would you probably have avoided the non-union, the collapse, the operation or the lasting stiffness. If yes, the delay matters legally. If the treatment and the result would probably have been the same, it generally does not, however frustrating the delay was.

This usually needs a second expert, often an orthopaedic surgeon, who can say what treatment would have been given on day one and what difference it would have made. The general framework for proving each element is in how to establish a medical negligence claim.

Is a missed fracture claim too small to bring in Victoria?

Some are, and it is better to know this early. There is no minimum dollar value for a claim in Victoria, but Part VBA of the Wrongs Act restricts one head of damages. Section 28LE says you cannot recover damages for non-economic loss, meaning pain and suffering and loss of enjoyment of life, unless you have suffered a significant injury.

As at 26 September 2026, under version 130 of the Act in force from 25 February 2026, section 28LB sets the threshold level at impairment of more than 5 per cent for an injury other than a psychiatric or spinal injury, 5 per cent or more for a spinal injury, and 10 per cent or more for a psychiatric injury. Section 28LF requires the impairment of the whole person to be assessed by an approved medical practitioner, or determined by a Medical Panel. Section 28LH requires the assessment to follow the AMA Guides to the Evaluation of Permanent Impairment, fourth edition, as modified by the Act.

Three points matter for a missed fracture.

  • The impairment that counts is the one caused by the fault. Section 28LE refers to an injury caused by the fault of another person. You were injured before you arrived at the emergency department, so the question is generally what additional impairment the delay caused, not how serious the original fracture was.
  • A small additional impairment may not reach the threshold. Where the delay left no lasting impairment, or only a small one, the threshold for pain and suffering may not be met. A cervical spine injury falls under the lower spinal threshold of 5 per cent or more.
  • Secondary psychological effects are not counted. Section 28LJ says psychiatric or psychological symptoms arising as a consequence of a physical injury are disregarded when assessing that injury's impairment.

The threshold restricts only damages for non-economic loss. Section 28LC applies Part VBA to claims for non-economic loss, so the cost of further surgery, care and lost income can still be claimed below it. Whether that is worth pursuing depends on what it would cost to prove, which is covered in is my medical negligence claim too small.

How long do you have to claim for a missed fracture in Victoria?

As at 26 September 2026, under version 112 of the Limitation of Actions Act 1958 (Vic) in force from 25 February 2026, section 27D sets two periods and the first to expire applies. One is three years from the date the cause of action is discoverable by you. The other is twelve years from the act or omission.

Section 27F says a cause of action is discoverable on the first date you know, or ought to have known, that the injury occurred, that it was caused by the fault of the defendant, and that it was serious enough to justify bringing an action. In a missed fracture case that is often later than the emergency visit, because you may not learn a fracture was visible on the first films until much later. Asking for your records does not stop the clock.

Children are treated differently. Section 3(2) deems a minor to be under a disability, so for an injury to a child section 27E applies instead: six years from the date the cause of action is discoverable, with the same twelve-year long-stop. Under section 27J, a minor in the custody of a capable parent or guardian is not under a legal incapacity, and what that parent knows or ought to know is treated as known by the child. So time can start for a child's claim from when a parent learned the relevant facts. Time limits for medical negligence claims covers the other rules.

What if you were told the delay made no difference?

That may be right, and it is the question the causation expert has to answer. It is also an answer sometimes given before anyone has compared the first X-ray, the formal report, the follow-up films and the treatment you eventually needed. If another firm has declined your claim, your claim was rejected: what happens now explains how to read the letter and what question it actually answered.

Our technology organises the records and builds the chronology, and our lawyers review the evidence and make every legal decision. If you have your records, send them. If you do not, start a free assessment and you will be told what to request and from whom.

Common questions

Is it negligence if a fracture was missed on the first X-ray?

Not by itself. Some fractures cannot be seen on a first X-ray, and section 59 of the Wrongs Act 1958 (Vic) protects an emergency doctor who acted in a way widely accepted in Australia as competent professional practice at the time. A claim is more likely to be investigated where the fracture was visible on the films but not seen, where a formal radiology report identified it and nobody acted on it, or where no follow-up was arranged despite ongoing suspicion.

Can you claim if the radiology report showed a fracture but no one called you?

You may be able to. The Australasian College for Emergency Medicine policy P54 says emergency departments must ensure that the results of investigations they request are followed up within a clinically appropriate timeframe, and that a system must be in place for results that return after a patient has been discharged. You must still prove that the delay caused harm an earlier diagnosis would probably have avoided.

Do you need more than 5 per cent impairment to claim for a missed fracture?

Only for damages for pain and suffering. Under Part VBA of the Wrongs Act 1958 (Vic), as at 26 September 2026, the threshold is impairment of more than 5 per cent for most physical injuries and 5 per cent or more for a spinal injury. It does not apply to economic loss, so the cost of further treatment, care and lost income can still be claimed below it.

How long do you have to claim for a missed fracture in Victoria?

Section 27D of the Limitation of Actions Act 1958 (Vic) sets two periods and the first to expire applies: three years from the date the cause of action is discoverable, and twelve years from the act or omission. It is discoverable once you know, or ought to know, that the injury occurred, that it was caused by the fault of the defendant, and that it was serious enough to justify an action.

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