Australia: Adequate warning? Surgeon found not liable for failure to warn in elective surgery

Last Updated: 14 December 2016
Article by Shannon Mony and Will Goodheart

Morocz v Marshman [2015] NSWSC 325

Key Points

  • Ms Morocz began proceedings against Dr Marshman after experiencing side-effects following an elective surgery to treat her hyperhidrosis ('sweaty palms').
  • It was found that Ms Morocz was adequately warned of the risks and side effects of the surgery at her initial consultation and through an information booklet provided to her.
  • The manifestation of a post-operative psychiatric condition was not warned against, but it was found that Dr Morocz was not obliged to provide such a warning.
  • Ms Morocz also alleged that she should have been warned against undergoing the procedure at all, and should have been provided with other conservative treatment options before surgery was advised.
  • This claim was dismissed at first instance and on appeal.

Background

Ms Morocz suffered from hyperhidrosis (sweaty palms), for which she underwent a bilateral endoscopic thoracic sympathectomy on 6 February 2007 at Royal Northshore Hospital. While Ms Morocz's condition was not painful, it was "physically embarrassing and inconvenient", and the procedure to treat the condition was considered entirely elective.

The procedure was carried out by Dr Marshman, following a consultation at his rooms. At trial, both Ms Morocz and Dr Marshman gave varying accounts of the warnings provided during this consultation. Dr Marshman submitted that he carried out the consultation in accordance with his general practice which included a discussion of more conservative treatment options and advising the patient of various matters including the need for general anaesthetic and a stay for two to three nights in hospital. In accordance with his general practice, Dr Marshman also advised that he provided a warning on the range of side-effects, including compensatory sweating.

At the end of the consultation, Ms Morocz was given a brochure published by the Society of Thoracic Surgeons with information about the bilateral endoscopic thoracic sympathectomy and its associated risks.

Following the surgery, Ms Morocz experienced dizziness and pain upon waking up. This pain and discomfort increased over the course of the day and overnight and did not improve over time. In addition, she experienced severe compensatory sweating (mainly on her back and torso), difficulties breathing, chest pain and constant headaches.

Findings

Decision at trial

Ms Morocz alleged that Dr Marshman failed to warn her on several known risks of the procedure and that he should have provided further advice on whether the surgery was appropriate for her condition.

Harrison J found that Ms Morocz had in fact received adequate warnings in relation to the return of hyperhidrosis, disabling compensatory hyperhidrosis and intercostal neuralgia (chest pain).

Further, in regards to the adequacy of the warning given about the condition returning after the procedure, Harrison J found this issue was in fact addressed in the preoperative information provided to Ms Morocz, in the terms of the percentage likelihood of the procedure being successful.

The side-effects experienced by Ms Morocz in relation to the automatic nervous system (including abnormally slow heart rate and headaches) were found to not require a warning by Dr Marshman in the initial consultation as it would have involved "levels of quite sophisticated medical inquiry".

Decision on appeal

The Court of Appeal unanimously dismissed the appeal brought by Ms Morocz. It was found that Ms Morocz was adequately warned of all the matters in contention.

Importantly, the Court of Appeal reiterated Harrison J's comments in relation to patient autonomy being a factor which informs the extent of the duty owed by medical practitioners. Ms Morocz had undertaken extensive research of her condition and the surgical procedure herself, and as such, presented as well-informed at her initial consultation with Dr Marshman. It was taken from this that she comprehended the less severe options available to her to treat her condition.

Conclusion

An important implication arising from this decision is that, provided they have complied with a duty to warn of the relevant risks of a surgical procedure, doctors are not required to second-guess a patient's decision to undergo elective surgery. It also reinforces that where doctors have a duty to warn of material risks, they are not required to use scientific terms to do so where it is preferable to use simple terms.

Interestingly, with regards to Ms Morocz's contention that she should have been advised against having the surgery at all due to the severity of her symptoms in relation to the potential side effects, the Court found that Dr Marshman had no obligation to do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Shannon Mony
 
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