Surgeon’s sound consent process key to victory in the Supreme Court

Surgeon’s sound consent process key to victory in the Supreme Court

Summary:

A surgeon’s rigorous consent process and history taking were fundamental in defending a claim of negligence for failure to warn of risks to a patient undergoing a bilateral endoscopic thoracic sympathectomy.

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Author: Andrew Blandford, Special Counsel, Civil, Avant Law – Medical Defence Service
02 / 05 / 2016

A surgeon’s rigorous consent process and history taking were fundamental in defending a claim of negligence for failure to warn of risks to a patient undergoing a bilateral endoscopic thoracic sympathectomy.

Dr Marshman, specialist cardio-thoracic surgeon, successfully defended the case Morocz v Marshman [2015] NSWSC 325, after the Supreme Court of New South Wales ruled on 17 April 2015 that he complied with his duty to inform Ms Morocz of the known risks of undergoing a thoracic sympathectomy.



Case facts

Ms Morocz, a 38 year-old graphic designer, suffered with hyperhidrosis (sweaty palms). She had a long history of excessive sweating of the palms of her hands and her mother also suffered from the condition. She obtained a referral from a GP after reading about bilateral endoscopic thoracic sympathectomy on the internet.

Ms Morocz consulted with Dr Marshman on 3 August 2006 seeking to undergo a thoracic sympathectomy. Dr Marshman formed the impression that Ms Morocz was knowledgeable about the proposed procedure.

Dr Marshman could not independently recall all of the details of the consultation, but gave evidence of his discussion with Ms Morocz in accordance with his usual practice. He discussed with Ms Morocz the role of the sympathetic nervous system and hyperhidrosis, conservative treatment options, the thoracic sympathectomy procedure, risks of the procedure and the fact that the procedure was not reversible. He advised her of the risks that the procedure may not cure her hyperhidrosis and that she may experience compensatory hyperhidrosis and intercostal neuralgia. He also provided her with a brochure from the Society of Thoracic Surgeons.

Dr Marshman handed Ms Morocz a multipage hospital admission form and asked her to read the form and add her signature and the date at the bottom. He then wrote to the referring doctor on 4 August 2006 outlining the matters discussed with Ms Morocz.

On 6 February 2007, Dr Marshman performed a thoracic sympathectomy on Ms Morocz. Her post-operative recovery was complicated by a small pneumothorax.

Following surgery, Ms Morocz complained of a range of symptoms including compensatory sweating, severe pain, palpitations, dizziness, nausea and headaches.

She was discharged from the hospital on 8 February and about a week later she called Dr Marshman to inform him that she was still suffering from similar symptoms and felt like a “zombie.”

Ms Morocz’s allegations centred on a failure to adequately warn:

  • of known risks and side-effects of the procedure;
  • whether surgical treatment was appropriate with respect to the severity of her symptoms;
  • that conservative treatment should be trialled before considering surgery;
  • of the existence of systematic reviews warning of serious complications of the surgery;
  • of the effect of the procedure on cardio-vascular, emotional , cognitive and sexual functions;
  • that the risk of side-effects could be reduced by staged unilateral procedures;
  • of his own track record with sympathectomy procedures, including complication rates; 
  • that the procedure was banned in Sweden in 2003.

Patient adequately warned of relevant risks

The court relied upon expert evidence to identify the known risks and side effects of the surgical procedure. The experts agreed that the relevant risks were adequately covered in the brochure from the Society of Thoracic Surgeons. The Court found that Ms Morocz both read and understood what the brochure contained. Evidence from both parties confirmed that the information contained in the brochure was discussed between Dr Marshman and Ms Morocz .

The court accepted that a letter written by Dr Marshman dated 4 August 2006 to the referring GP contemporaneously recorded the discussion of compensatory hyperhidrosis, Horner’s syndrome and intercostal neuralgia, as risks of the procedure.

The brochure included information that compensatory sweating was a common side-effect of surgery and that the procedure will cure approximately 95 to 98% of excessive hand hyperhidrosis.

The court found that that Dr Marshman used the term “cure” in the pre-operative consultation but considered that he used that word in the context of Ms Morocz understanding that “there is a 98 percent assurance that she will have dry hands”.

Risks not inherent to the procedure

The experts agreed that Ms Morocz’s intolerance to exercise, anxiety and depression, debilitating headaches, decreased innervation of the heart and bradycardia were not inherent or material risks of thoracic sympathectomy.

The judge accepted that decreased cardiac innervation was a description of a possible physical consequence of the operation.

He said, “It is not in my opinion the obligation of a surgeon to refer in scientific terms to possible medical or physiological changes to a patient following a particular procedure….The obligation is instead to refer in an easily comprehensible way to what the patient might be exposing herself in terms of risks or what she might possibly experience in the nature of side effects.”

The judge also considered that even if these risks had been referred to in the pre-operative consultation, it would not have deterred Ms Morocz from having the procedure.

Was the surgery indicated?

The case also highlighted the obligations of surgeons around the provision of advice to patients on their suitability for elective surgery.

Specifically, Ms Morocz made allegations that she was not told that the procedure was not clinically indicated based on her lack of severe symptoms, nor advised to try conservative treatments before consenting to surgical intervention.

The court noted that her symptoms were severe enough that conservative treatments had not worked. It was also accepted that Dr Marshman had asked Ms Morocz which treatments she had already tried, to which she replied alcohol rubs, but they smelt bad and irritated her skin. Botox injections were also discussed, but were said to be painful, expensive and require regular administration.

The judge stated that Ms Morocz’s allegation appeared to conflate the legal requirement for warnings in cases of elective surgery and the potential ethical issues that attend the performance of such surgery.

“…as far as the material before me suggests, it has never been the law that a cosmetic surgeon had a legal duty to refuse elective surgery to a patient if the surgeon’s personal view, or if the reasonable medical view, was or ought to have been that the surgery was unnecessary or unwarranted,” the Judge said.

“Provided that he properly and adequately informed Ms Morocz of the significant risks and side effects of the surgery, and that she was then able to provide her consent to the surgery in a fully informed way, Dr Marshman was perfectly entitled to decide whether or not to perform it”.

Dr Marshman had no duty to justify or verify the warnings and advice that he gave to Ms Morocz so that she could independently examine or attempt to verify the worth of that advice.

“The fact that bilateral endoscopic thoracic sympathectomy was arguably a controversial procedure is no more or less than a reflection of differing views about the competition between its risks or side effects on the one hand and the chances of successfully resolving palmar hyperhidrosis on the other hand. Provided Dr Marshman’s assessment and description of the risks and side effects was accurate, he was not in my opinion obliged to verify them for Ms Morocz.”

Key lessons

  • The scope and content of a particular duty to warn will vary with the circumstances of each case.
  • Each patient is entitled to receive information to assess the material risks and benefits of the proposed treatment for the particular patient.
  • Information should be provided both in written form and by detailed pre-operative discussion.
  • It is vital to keep accurate, contemporaneous medical records of the discussion and identify each key topic of discussion and any written information provided to the patient.
  • Written notes can be supplemented by a letter to the referring doctor confirming the matters discussed with the patient.
  • The more elective the procedure, the more the patient requires advice about the possible risks.

Learn more

Complete our Risk IQ eLearning courses: Consent: the key issues and Documentation: on the record.
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