Informed consent: Failure to warn / suitable candidate for surgery and related arguments

Published today is a judgment Morocz v Marshman [2015] NSWSC 325, producing a verdict for the defendant on claim which included allegations that:

  • there was a ‘failure to warn’;
  • the claimant was not a suitable candidate for the surgery;
  • conservative treatment options should have been addressed;
  • the efficacy of the procedure should have been canvassed in detail; and
  • the surgeon’s track record should have been disclosed.

The claimant suffered hyperhidrosis (sweaty palms) for which she sought advice from the defendant. He ultimately performed a bilateral endoscopic thoracic sympathectomy upon the claimant. Post-operatively the claimant complained of various symptoms including headaches and palpitations. The asserted negligence was limited to failure to warn (see [69] – [71]).

Information about the risks of the surgery provided to the claimant included ‘usual practice oral advice (see [48] – [50]) and a brochure from the Society of Thoracic Surgeons: [7] – [8]. As there were oral warnings as well as the provision of the brochure, it was not necessary to decide whether the brochure alone would have been inadequate: [84].

The court found that the claimant was adequately warned of the relevant risks of which there was a duty to warn, taking into account the expert evidence: [94], [102], [216].

At [109] the trial judge commented on the appropriate form of warnings:

It is not in my opinion the obligation of a surgeon to refer in scientific terms to possible medical or physiological changes to a patient following a particular procedure, and it may well be inimical to fulfilment of the duty to do so. The “duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp”:Montgomery at [90]. The obligation is instead to refer in an easily comprehensible way to what the patient might be exposing herself in terms of risks or what she might possibly experience in the nature of side effects.

The judgment also addresses (ultimately unsuccessful) allegations of negligence as to whether the claimant should have been told that she was, in effect, not a suitable candidate for the surgery or that it would be unwise for her to have it: [159].

The court noted that even if the claimant decided that she would like to proceed with the surgery, the final decision was one for the surgeon to make on medical grounds: [162]. The trial judge however observed at [167]:

I take it to be uncontroversial that patients regularly seek out and undergo elective cosmetic procedures. A bilateral endoscopic thoracic sympathectomy is an elective procedure although not classically purely cosmetic. Commonly performed elective cosmetic procedures include rhinoplasty, breast augmentation or reduction, face lifts and blepharoplasty or eyelid revision. Orthodontic intervention for teeth straightening and related procedures are also well known and common. In some cases the need for these procedures may be associated with a surgical candidate’s chronic pathological concern for his or her appearance. In others there may be functional medical reasons why the surgery is appropriate. However, as far as the material before me suggests, 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. Such surgeries necessarily carry with them a range of serious and potentially life threatening risks that on one view may appear to be disproportionate to the perceived benefits to be achieved. There may appear to be an ethical dilemma for surgeons offering these procedures in cases where according to their own assessment the risks outweigh the benefits. In such cases it may be assumed that refusing to perform the surgery is an available option.

And at [182]:

The relevant consent is the informed consent of the patient. It would place medical practitioners in an untenable and intolerable position if their duty also required them, having once properly and adequately explained the risks and side effects of particular surgery to the patient, to exercise what amounted to some kind of therapeutic veto by second guessing the patient’s informed decision to proceed.

Regarding conservative treatment options, at [193] the defendant was held was not to have been obliged to insist or to require that the claimant demonstrate that she had trialled and exhausted all available alternative conservative methods of treatment in an attempt to relieve her palmar hyperhidrosis before either considering or offering or performing a bilateral endoscopic thoracic sympathectomy

As to the efficacy of the procedure, at [197]:

I am not satisfied that (the surgeon) should have advised (the patient) that there was no unbiased review of the safety or potential side effects of elective sympathectomy and their potential severity or of the existence of systematic reviews warning of serious side effects and complications. This complaint is yet another retreat to the suggestion that a doctor has a duty to engage a patient considering surgery in the scientific opinions alive and current in the relevant medical literature at the time. It is based upon the proposition that the doctor is obliged to justify or verify the warnings and advice that a patient is entitled to receive apparently against the contingency that the patient can independently examine or attempt to verify the worth of the doctor’s advice. That proposition cannot be correct.

As to the surgeon’s ‘track record‘, at [192]:

This is a curious allegation. Ms Morocz did not ask Dr Marshman for his surgical track record performing bilateral endoscopic thoracic sympathectomies, or about his rates of success, however that concept might be measured, or about his rates of occurrence of particular post-operative complications. It would have been surprising had she done so. It is in my opinion even more surprising that Ms Morocz now alleges that Dr Marshman had some unspecified obligation to reveal to her his surgical history performing this operation. Dr Marshman was a duly qualified medical practitioner with a certified specialty and entitled to practice as such. It was not his obligation to volunteer information of the kind in question. He would have been entitled to refuse to provide it if asked.

As to causation, the trial judge concluded that even if there had been a breach of duty, considered prospectively, and so without the benefit of hindsight, I do not consider that a preoperative reference to any of these matters would have induced the claimant to decline to undergo the surgical procedure in question: [230].

A provisional assessment of damages was made.

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