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Failure to Warn of a Material Risk - Morocz v Marshman [2015] NSWSC 325

Caseflash 05 May 2015

Morocz v Marshman [2015] NSWSC 325

Judgment of Harrison J dated 17 April 2015

Justice Harrison of the Supreme Court has found in favour of a Doctor, represented by TressCox Lawyers,  in a recent case alleging a failure to warn of a material risk of a surgical procedure.

The patient suffered from hyperhidrosis or ‘sweaty palms’.  The condition was never painful or physically disabling, but was inconvenient and embarrassing. The patient read about and researched a surgical procedure known as endoscopic thoracic sympathectomy, and consulted Dr Marshman about that procedure.

It was common ground that at the initial consultation, Dr Marshman discussed with the patient the risks of the proposed surgery. Dr Marshman also provided the patient with a patient information pamphlet, which included information as to the planned procedure, and alternate therapies.

The patient underwent bilateral endoscopic thoracic sympathectomy in February 2007.

The patient alleged Dr Marshman failed to warn her of a number of known risks and complications of the surgery.  She also alleged that Dr Marshman failed to advise her of possible non-surgical therapies.

Justice Harrison noted that the identification of the known risks and side effects of a surgical procedure is a matter for suitably qualified expert medical opinion.  The question of whether or not a particular medical practitioner has fulfilled his or her duty to warn the prospective surgical candidate of such risks, and the materiality of such risks, is a question for the Court to determine.

The liability experts agreed that the patient information brochure adequately referred to risks or side effects of the procedure, as they were known in 2007.  Justice Harrison stated he had no doubt that the patient both read and understood what the patient information brochure contained.  That included a clear warning that surgery should only be contemplated after a trial of non-invasive therapies.

Justice Harrison found that Dr Marshman was entitled to take into account the patient’s presentation at the initial consultation, and her apparent ability to understand what he said to her, as well as her ability to understand what was provided to her in writing.

The Court found that there was no obligation of a surgeon to refer in scientific terms to possible medical or physiological changes to a patient following a particular procedure. Nor does a doctor have a duty to engage a patient in the scientific opinions current in the medical literature available at the time.  Additionally, a doctor was not obliged to advise a patient of his or her own experience with the procedure such as rates of complication.

Justice Harrison found that Dr Marshman had warned the patient of the material risks involved in undergoing bilateral endoscopic thoracic sympathectomy.

The patient alleged that the surgery was not warranted given the relative lack of severity of  her symptoms. The Court noted that although cosmetic surgeries may carry with them a range of serious risks that on one view may appear to be disproportionate to the perceived benefits, 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.

Regarding causation, Justice Harrison found that even if there was a breach of duty, and the patient was able to establish that she had not been warned of a material risk of the procedure, this would not have affected her decision to proceed with the surgery.

Natalie Meadows, Partner

Caseflash 05 May 2015
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