The New South Wales Court of Appeal recently had to decide whether a surgeon breached his duty of care by failing to warn a patient of the material risks involved in an elective surgery (and provide advice).[1]

The surgery was to treat a medical condition that caused the patient to have “sweaty palms” (or clinically referred to as hyperhidrosis).

Background

The appellant (Ms Morocz) was a woman in her late 30s who had suffered from “sweaty palms” since she was a teenager. While the condition was never painful or physically disabling, it was inconvenient and embarrassing.

In August 2006, Ms Morocz attended a consultation with the respondent (Dr Marshman), a cardiothoracic surgeon. Dr Marshman discussed with Ms Morocz her medical history. Dr Marshman discussed the procedure and the risks of the proposed surgery, including the potential side effects. He presented Ms Morocz with a brochure from the Society of Thoracic Surgeons which also explained the procedure and outlined the risks.

Ms Morocz underwent the surgery in early 2007. Following the surgery, she developed symptoms such as dizziness, pain, heart palpitations, difficulty breathing, compensatory sweating, and migraines.

Decision at Trial

At trial, Ms Morocz contended that Dr Marshman should have warned her of a number of other known risks of the procedure. Further, she alleged Dr Marshman should have provided advice as to whether the surgery was appropriate for her condition.[2]

The NSW Supreme Court (the Court) found that Dr Marshman had not failed to warn the appellant of the known risks.

Ms Morocz alleged she should have been warned of “disabling compensatory sweating” whereas Dr Marshman warned her of “compensatory sweating” but described it as a “major complication” rather than “disabling”. The Court found that Dr Marshman’s failure to use the appropriate adjective was not a failure to describe the known side effect of compensatory sweating.

Ms Morocz also argued that she should have been warned of “decreased innervation of the heart” (slowing of the heart rate). The Court found that a doctor is not required to refer to a risk in scientific terms. The court considered that bombarding a patient with technical information does not assist a doctor to meet his duty to inform.

The Court otherwise considered the relevant expert medical opinion and concluded that the risks of which Ms Morocz alleged she should have been warned were not considered to be material risks of the surgery.

The Court rejected Ms Morocz’s argument that Dr Marshman ought to have advised her that she should not have the operation given the history and severity of her symptoms. The Court found that Ms Morocz had conflated the legal requirement for warnings and the potential ethical issues that arise from elective surgery, which is often performed for a reason which is not strictly medical.

The Court found that as Dr Marshman had properly and adequately informed Ms Morocz of the significant risks and side effects of the surgery, and she had provided her informed consent, he was entitled to perform the surgery. In any event, had a warning been provided, the Court found that Ms Morocz would have proceeded with the surgery.

The Issues on Appeal

The Court of Appeal upheld the decision from the Court below. The Court of Appeal found that Ms Morocz was warned of all the matters that the experts who gave evidence indicated she should have been warned about and that she underwent the procedure knowing those matters.

The Court of Appeal affirmed the primary judge’s comments in relation to patient autonomy being a factor which informs the extent of the duty owed by medical practitioners. It was apparent that Ms Morocz had conducted extensive investigations prior to consulting Dr Marshman. As such, the Court of Appeal concluded that the primary judge had not erred in failing to find the appellant should have been advised to undertake alternative procedures. Ms Morocz was an intelligent and educated patient who comprehended the various options that were open to her relating to her “sweaty palms” condition.

Implications for you

It is uncontroversial that doctors have a duty to warn patients of material risks. The case reinforces that they should use language that is meaningful to the patient when they do so. Doctors are not required to use scientific terms to explain a risk where it is preferable to use simple terms.

The case also confirms that provided they have complied with their duty to warn of the relevant risks, doctors are not required to second-guess a patient’s decision to undergo elective surgery. While a doctor’s personal opinion may be that the potentially life threatening risks of such procedures outweigh the necessity of the (elective) surgery, a doctor is not required to express this opinion or refuse to perform the operation. On ethical grounds a doctor may decide not perform the surgery, but legally they can proceed with it. This has particular relevance to cosmetic procedures.