The Supreme Court of New South Wales delivers a surgeon-friendly decision for elective surgery in Morocz v Marshman [2015] NSWSC 325

Proceedings were brought by the plaintiff, against a specialist cardio-thoracic surgeon who performed elective cosmetic surgery on the plaintiff to treat her abnormally sweaty palms. The plaintiff alleged the surgeon had failed to warn her adequately or at all about:

  1. the risk of side-effects of her surgery or the return of her condition; and
  2. alternative non-surgical treatment options.

This case provides practical guidance for doctors as to how to guard against later disagreement with patients about risk warnings, and also confirms that there is no duty on doctors to refuse cosmetic surgery where there is no medical necessity.

Background

The plaintiff presented at the surgeon’s practice to discuss surgical options to treat her abnormally sweaty palms.

In particular, she inquired about a specific procedure  called “bilateral endoscopic thoracic sympathectomy” (the Procedure).1 She asked questions about the Procedure which demonstrated that she had done her own research before consulting the surgeon. During the consultation, the surgeon concluded that the plaintiff was a suitable candidate for the Procedure, and she underwent surgery a short time afterwards.

Following her operation, the plaintiff suffered (and continues to suffer) “disabling” extreme additional sweating from areas not previously affected, nausea, pain, bradycardia,2  and emotional and psychiatric pathology.

Factual dispute

There was disagreement regarding what actual warnings were given by the surgeon in person. The plaintiff alleged that she was not advised of the known risks and side-effects of the procedure. The surgeon’s evidence was that he gave oral warnings as per  his “usual practice”, as his memory of the specific consultation was unclear. In addition to oral warnings, the surgeon provided the plaintiff with a brochure containing details of risks and side-effects commonly associated with the Procedure, and a recommendation that ‘non-invasive’ forms of therapy should be tried prior to surgery.

The Court found in favour of the surgeon. Ultimately, a contemporaneous letter to the plaintiff’s referring physician outlining her family history, her reluctance to have her hands examined and several of the risks which he said he had warned her of, helped the Court find that the surgeon had given the relevant warnings of side-effects in person.

It was held that several risks were not raised either in person or through the brochure, but that these risks were not considered to be those that the surgeon had a duty to warn. Expert evidence indicated that these were not inherent risks of the Procedure.

The Court described the surgeon’s obligation to warn as one “to refer in an easily comprehensible way to what the patient might be exposing herself to in terms of risk, or what she might possibly experience in the nature of side effects”.

Quality of warnings

The Court accepted that the surgeon’s usual practice was to contrast mere nuisance sweating with more severe sweating. Further, the failure to describe the risk of additional sweating as “potentially disabling” was not a failure to refer (in appropriate terms) to the side-effects or their consequences.

The Court found that the surgeon’s purported description of the Procedure as a “cure” was sufficiently qualified by his usage of percentages (“a 98-100 per cent chance”) to have warned the plaintiff of the risk her condition would not be cured.

Further observations and conclusions

Justice Harrison dismissed the plaintiff’s claim that the surgeon should have advised of more conservative options, refused surgery or indicated a divergence of medical opinion about the Procedure. He held:

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. If it were otherwise the availability of purely narcissistic cosmetic procedures would be entirely foreclosed…

Practical guidance for medical professionals

In order to minimise factual disputes, it is strongly advisable to take detailed contemporaneous notes not only of clinical diagnosis, but also of warnings given regarding risks associated with treatment options. Here, the detail contained within the surgeon’s letter to the referring GP was critical to show that relevant warnings were given to the plaintiff.

Managing patients’ expectations with reference to percentage chance of success can be a crucial aspect of discharging the duty to warn of the risk of failure or recurrence.

“Adjectival failure” to describe the extent of a potential side-effect or consequence of treatment may not be a failure to discharge the duty to warn of these risks, but a full and frank assessment   is obviously preferable where possible.

Providers of cosmetic and elective surgery are not under a   duty to refuse surgery simply because surgery is unnecessary or unwarranted. However, it is obviously open to them to   refuse treatment where they consider that the perceived risks outweigh the potential benefits. In this case, there was certainly no duty to refuse surgery until conservative treatment options were exhausted.