Warning of material risks: Morocz v Marshman

by | Aug 15, 2016 | Health Blog

The Court of Appeal has affirmed the decision to dismiss a patient’s claim against a cardiothoracic surgeon for allegedly failing to warn of the risks of undergoing a sympathectomy.

Factual background

The patient consulted the cardiothoracic surgeon about her palmar hyperhidrosis (PHH) and was provided with a brochure about the bilateral endoscopic thoracic sympathectomy which outlined the risks of the procedure. The surgeon also discussed the risks involved with the procedure during the consultation. Following surgery the patient complained of a number of health issues which did not subside overtime.

The patient brought a claim against the surgeon claiming that he had failed to warn of the return of her PHH, compensatory hyperhidrosis, intercostal neuralgia, bradychardia, impairment of emotional response, headaches and alterations to her autonomic nervous system, and failed to advise her of alternative procedures.

Decision at first instance

The primary judge held that there was no negligent failure to warn, after finding that she had been warned about all material risks. The patient appealed.

On appeal

The Court of Appeal held that the adequacy of providing warnings through the brochure was not a significant issue in this case, given that the surgeon had verbally warned the patient of the material risks and it was clear that she had “read and understood” the brochure.

It was found that the patient was sufficiently advised of the return of PHH. The brochure indicated that there was a 95-98% chance of success and therefore a corresponding chance that it may return. The patient was sufficiently advised of compensatory sweating and of intercostal neuralgia in the brochure. A letter sent from the surgeon to the patient’s GP also recorded that she was aware of the risk of nerve pain.

Although the brochure had contained a warning about possibility of abnormal heart rhythm, the expert evidence indicated that the patient was not required to be warned of abnormal heart rhythm as she was not in the affected age category. The patient’s claims concerning anxiety, depression, impaired emotional responses or headaches were based on inadmissible expert evidence and rightfully dismissed.

The surgeon was not obliged to advise the patient not to undergo the procedure. The patient’s symptoms were comparatively severe, and after much independent research and consideration of the Brochure which covered alternative treatments, she was still enthusiastic about undergoing surgery. The Court stated “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… was or ought to have been that the surgery was unnecessary or unwarranted”.

Lessons to be learnt

A medical practitioner is under a duty to warn patients of all material risks as a part of the consent process before undertaking any form of treatment or procedure.

A brochure from an authoritative source can be useful. However it is not a substitute for discussing the material risks with the patient and ensuring that the patient understands the risks involved.

Medical practitioner should make a contemporaneous record of the content of discussions and the patient’s understanding. Such records will be invaluable in the event of a claim.

To read this case in full, click here.

Emma Jack

Emma Jack