Appeal against surgeon for allegedly failing to warn of risks dismissed

Sep 16, 2016

The Supreme Court recently highlighted the importance of patient autonomy when making decisions about undergoing elective surgery, before dismissing a patient’s appeal against an Avant surgeon member.

The Supreme Court of NSW’s Court of Appeal dismissed the appeal against Dr Marshman, a specialist cardio-thoracic surgeon, for allegedly failing to warn of risks before surgery for hyperhidrosis (sweaty palms) and ordered costs to be paid.

Dr Marshman’s rigorous consent process and history taking was fundamental in successfully defending the negligence claim. Previously, Justice Harrison of the Supreme Court of New South Wales, found that Dr Marshman had complied with his duty to inform Ms Morocz of the known risks of undergoing a bilateral endoscopic thoracic sympathectomy.

Experts agreed that the patient information brochure which Dr Marshman had provided adequately referred to the risks and side effects of the procedure as at 2007. The primary judge also accepted that Dr Marshman contemporaneously recorded his discussion with Ms Morocz of compensatory hyperhidrosis, Horner’s syndrome and intercostal neuralgia as risks of the procedure in a letter he wrote to the referring GP.

Surgeons’ obligations around warnings on elective surgery

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

The primary judge stated that Ms Morocz’s allegations 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 primary 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”.

The Court of Appeal agreed with the primary judge that “patient autonomy is an important principle which informs the extent of the duty owed by medical practitioners to warn patients of the risks of procedures they are contemplating.”

Case facts

Ms Morocz, who was 38 years old at the time, suffered with hyperhidrosis. She consulted Dr Marshman to undergo a thoracic sympathectomy after reading about the procedure on the internet.

In 2007, Dr Marshman performed the procedure on Ms Morocz. Following surgery, she complained of compensatory sweating, severe pain, palpitations, dizziness, nausea and headaches.

Subsequently, she filed a law suit against Dr Marshman centred on the allegation that he failed to adequately warn of the known risks and side effects of the procedure.

Patient adequately warned of relevant risks

Ms Morocz, who was self-represented at the appeal, appealed on the grounds that contrary to the findings of the primary judge, she was not adequately warned of various risks. These included compensatory sweating, intercostal neuralgia, and the return of palmar hyperhidrosis.

She also contended that Dr Marshman should have recommended other more conservative treatments as an alternative to surgery.

The issues for appeal included that the tender of further evidence should be permitted and that the primary judge erred in rejecting the tender of various expert opinion that Ms Morocz sought to rely on in her case. Any further evidence was ruled inadmissible and the primary judge’s rejection of the expert reports upheld.

Ms Morocz also complained that she had suffered a miscarriage of justice due to her counsel not properly understanding, pleading or arguing her case before the primary judge.

The Court of Appeal dismissed all of the issues raised on appeal.

Patient’s decision to have surgery would not have changed

The primary judge found that even if there was a breach of duty, and Ms Morocz was able to establish that she had not been warned of a material risk of the procedure, this would not have changed her decision to proceed with the surgery. The Court of Appeal also rejected Ms Morocz’s appeal on this point.

Read our original article and key lessons for surgeons from the case.

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