Introduction

The New South Wales Court of Appeal has recently revisited the duty cast on medical practitioners (and other health professionals) to warn patients of the material risks of a proposed procedure or treatment.1

As has been well understood in Australia for close to quarter of a century, a medical practitioner’s duty to warn extends to ‘material risks’, which are risks that a reasonable person in the patient’s position would likely attach significance to or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would attach significance to it.2

Background and the decision at first instance

On 3 August 2006 the patient, Ms Morocz, consulted a cardiothoracic surgeon, Dr Marshman, about a condition known as hyperhidrosis, characterised by sweaty palms. During this consultation the patient was handed a brochure produced by the Society of Thoracic Surgeons about bilateral endoscopic thoracic sympathectomy, which is a surgical procedure used to treat hyperhidrosis.

The extent and nature of the warnings provided by Dr Marshman during the consultation were key issues at trial.

On 6 February 2007, Dr Marshman performed the sympathectomy procedure on the patient. Following that procedure, the patient complained of a number of complications, which did not improve over time. Proceedings were subsequently issued in the Supreme Court of New South Wales in February 2010. The matter came on for trial in 2015 before Harrison J. Interestingly, His Honour was the trial judge in Wallace v Kam, which was ultimately decided by the High Court.3

The patient’s case at trial was solely advanced as a negligent failure to warn case. In other words, no allegations were raised by the patient of intra-operative negligence.

Harrison J found that the patient had received adequate warnings in relation to the following material risks of the sympathectomy procedure:

(a) Return of the hyperhidrosis;

(b) Disabling compensatory hyperhidrosis (severe sweating affecting other regions of the body);

(c) Intercostal neuralgia (chest wall pain)

Harrison J noted that Dr Marshman did not warn the patient in plain terms that she might experience the return of her condition. Instead, the issue was addressed in the pre-operative information provided to the patient by reference to the percentage change of the procedure being successful.

In relation to compensatory hyperhidrosis, His Honour concluded that the expert evidence demonstrated a consensus concerning the known or recognised risks of sympathectomy surgery in 2007. The brochure handed to the patient disclosed all of those risks, including the risk of compensatory hyperhidrosis in 50% to 60% of patients, and severe compensatory sweating in 5% to 10% of patients.

Although intercostal neuralgia was not a pleaded allegation, Harrison J nevertheless addressed it, because it was addressed by both parties at trial. The patient gave evidence of severe post-operative neuropathic pain. His Honour noted that the brochure specifically addressed ‘pain’ as a possible consequence of the procedure. Harrison J also found that Dr Marshman had specifically raised with the patient the topic of pain that could follow surgery during the 3 August consultation, which recorded that the patient was aware of the risk of intercostal neuralgia.

His Honour found that Dr Marshman was not required to warn the patient of a number of pleaded risks of the sympathectomy, including bradycardia (abnormally slow heart rate), anxiety and depression, and headaches, associated with the autonomic nervous system. Harrison J concluded that:

“It is not at all clear to me what Dr Marshman should allegedly have done or what mattes he allegedly should have explained beyond [those] … things to which he actually referred. This case has involved a relatively explicit and detailed analysis of the mechanics and effect upon a surgical patient of a bilateral endoscopic thoracic sympathectomy at levels of quite sophisticated medical inquiry. If Ms Morocz contends that Dr Marshman was obliged in fulfilment of his duty to warn to descend into such detail in his consultation with her then I reject the allegation. If the suggestion is limited to the proposition that he was obliged to review only basic physiology and neurobiology in satisfaction of his obligation then I consider that he did so.”

His Honour rejected the patient’s allegation that Dr Marshman should have advised the patient not to undergo the procedure, finding that the patient’s symptoms were comparatively severe.

Harrison J similarly rejected the patient’s allegation that Dr Marshman did not advise her about alternative treatments, concluding that there was no evidence that alternative treatments offered a permanent solution to the patient’s condition, and that the patient was not required to demonstrate that she had trialled and exhausted all available alternative forms of treatment before being offered the sympathectomy.

Finally, His Honour found that even if he was wrong in relation to breach of duty, the patient would have still chosen to have the sympathectomy, so that she had not discharged her onus of proof in relation to causation.

Decision of the Court of Appeal

The Court of Appeal unanimously dismissed the appeal brought by the patient, who was self-represented. The leading judgment was delivered by Payne JA, with whom Macfarlan JA and Emmett AJA agreed.

The patient agitated a number of issues on appeal, including that Harrison J erred in finding that she had been adequately warned with respect to relevant risks and complications.

Payne JA rejected each of the various grounds of appeal. In relation to the return of palmar hyperhidrosis, His Honour held that the patient’s submissions did not address the findings of the trial judge or the expert evidence. Similarly, her submissions concerning compensatory hyperhidrosis and intercostal neuralgia were either inconsistent with the preponderance of expert evidence or were only supported by further documentary evidence, which the Court ruled was not allowed to be admitted on appeal.

Implications

The decision of the Court of Appeal provides further comfort to medical practitioners, and to their medical defence organisations, that reasonably clear and accurate literature handed to patients, coupled with appropriate advice provided during the consultation, will be sufficient (in most cases) to discharge their duty to warn. Needless to say, keeping adequate notes of such consultation is of critical importance to practitioners, from an evidential perspective.

Although this issue does not feature prominently in the reasons of the Court of Appeal, the decision also underscores the difficulty for patients in successfully prosecuting failure to warn cases, due to the availability of a causation defence. In our experience, in many instances patients struggle to establish, to the civil standard of proof, that they would not have undergone the proposed surgery or treatment had an adequate warning been provided.4