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
This claim was dismissed at first instance and on appeal.
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
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
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
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
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
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.
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
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