Morocz v Marshman appeal dismissed

Reasons for judgment were today delivered in matter of Morocz v Marshman [2016] NSWCA 202, by which the appeal was dismissed. The decision and appeal concerned failure to warn issues, in particular  the duty to warn patient of material risks of procedure, whether warnings given were adequate and whether certain risks were “material”.

The appellant submitted that, contrary to the findings of the primary judge, she was not adequately warned of the following risks:

  • Return of palmar hyperhidrosis;
  • Disabling compensatory hyperhidrosis;
  • Intercostal neuralgia.

The appellant was self-represented on the appeal. She does not appear to have succeeded on any of the issues she raised, including new issues such as criticisms of the way her counsel questioned witnesses at the trial.

At [166] – [167] the court commented on patient autonomy issues:

The primary judge emphasised patient autonomy, particularly where surgery is elective:

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.

I agree with the primary judge that patient autonomy is an important principle which informs the extent of the duty owed by medical practitioners to warn patients of the risks of procedures they are contemplating.

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